Court of Appeals rules in favor of community college that removed nursing student over Facebook posts



What began as a series of venting social media posts has become a civil rights lawsuit that reached the 8th Circuit Court of Appeals. Last week, the appeals court issued a decision that stands to chill personal free-expression rights and strains the limits of the 1988 Hazelwood v. Kuhlmeier Supreme Court decision.

The outcome of the court’s 2-1 decision, assuming it is not overturned, leaves college students with diminished free-speech protection in all forums -- including when speaking on off-campus social media on their personal time -- if their speech can be deemed “unprofessional.”

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Keefe v. Adams involves former student Craig Keefe, who attended Central Lakes College, successfully completing the Practical Nursing Program in 2011. Keefe subsequently entered the Associate Degree Nursing Program to become a registered nurse.

In the fall semester of 2012, one of Keefe’s classmates reported to one of the nursing professors that Keefe had published what the student felt were threatening and disturbing posts on his Facebook timeline.

Keefe’s Facebook profile was public, and the student cited several posts she felt pertained directly to the class she shared with Keefe.

In one of the posts, Keefe wrote about his frustration with the overuse of an electric pencil sharpener in class and mused that he “might “give someone a hemopneumothorax with it before to [sic] long,” and in a separate post that there was “Not enough whiskey to control that anger,” with regard to a change in a group project.

After the posts were reported, Connie Frisch, the director of nursing at CLC, set up an appointment with Keefe at the direction of Vice President of Academic Affairs Kelly McCalla. When Keefe asked what the meeting was about, Frisch declined to offer specifics, saying she preferred to discuss it in person.

After their meeting, which included the Dean of Students, Frisch decided to remove Keefe from the program, citing a lack of professional conduct in violation of a section of the Nursing Program Student Handbook that Keefe signed at the start of his program.

The section of the handbook cited requires CLC students to adhere to the Nurses Association Code of Ethics. Frisch stated that Keefe’s lack of acknowledgement or remorse for his posts conveyed to her that he would not or could not embrace these tenets of the program.

Keefe was told he could finish out the semester and transfer his credits to another program within the school and that he had the right to file an appeal. Keefe contacted Frisch with a list of due process violations he felt were made in the handling of his dismissal, and was then advised not to contact any faculty or fellow students within the program while the appeal was pending. He assumed he could not then attend classes and failed the semester as a result.

Ultimately, Keefe’s internal appeal was denied by McCalla, and he was unable to request a review as McCalla stated his removal was not disciplinary, but rather the result of a violation of the academic program’s requirements.

Keefe filed a lawsuit in 2013 contending, as in his administrative appeal, that he was denied due process under the school’s own disciplinary procedures. Additionally, he argued that his personal, off-campus speech on a social media platform should not be subject to academic oversight.

After a lower court upheld Keefe’s dismissal, the SPLC along with several other advocacy groups, filed an amicus brief to the 8th Circuit in support of Keefe’s court appeal. Now, the Circuit’s 2-1 decision is in, and it’s disheartening for a number of reasons.

The author of the two-judge majority opinion, Judge James Loken, accepted the college’s argument that it is constitutional to hold students to the standards of their intended profession -- including those restricting speech -- as a part of college curriculum, so that a student who falls short of professional standards can be dismissed for failing to meet academic requirements. Loken writes:

"That a graduate student’s unprofessional speech leads to academic disadvantage does not “prohibit” that speech, or render it unprotected; the university simply imposes an adverse consequence on the student for exercising his right to speak at the wrong place and time, like the student who receives a failing grade for submitting a paper on the wrong subject."

This interpretation misconceives the school/student relationship. While there can certainly be social and professional consequences to the exercise of free speech, public universities are functionally an agency of the government, and the standard by which they are allowed to impose official consequences, such as expulsion, for a student’s speech are far more stringent than the standard for which a person could be fired from a private-sector job. That a government agency can impose adverse consequences for the content of speech is the very definition of “rendering it unprotected.”

Loken’s analysis also glosses over Keefe’s argument that his participation on Facebook was not curricular. Keefe was not penalized for “submitting a paper on the wrong subject,” but for what he said in his off-campus personal life.

Later, Loken cites Hazelwood School District v. Kuhlmeier in support of the idea that CLC had a “legitimate pedagogical concern” to require adherence to the nursing code of ethics, and by extension the authority to oversee an individual student’s personal speech, even as he acknowledges:

"As the issue in Hazelwood was censorship of a school-sponsored campus newspaper, the Court’s reference to 'legitimate pedagogical concerns' was made in the context of school-sponsored speech."

Loken goes on to say that the “concept” of Hazelwood -- that a school can regulate speech if it contravenes the school’s pedagogical concerns -- “has broader relevance to student speech.” This, too, is a misconception. Hazelwood was about a school’s refusal to help disseminate speech over a school-provided conduit that, in the Court’s view, might be confused for the school’s own speech; no one thinks that Keefe’s personal Facebook page belongs to, or represents the speech of, his college. And Hazelwood was not a disciplinary case; it was about the ability to refuse to distribute a student’s speech, not the ability to expel him afterward.

There is some consolation in the dissenting opinion authored by Judge Jane Kelly. In it, she agrees with her colleagues’ findings that the CLC administration should be immune from paying damages for any due-process violation because of the unclear state of the law. But she disagrees with their findings on the First Amendment issue:

"Here, Keefe’s speech was off-campus, was not school-sponsored, and cannot be reasonably attributed to the school. Hazelwood’s 'reasonably related to legitimate pedagogical concerns' test is therefore inapplicable in this case."

She goes on to argue that Keefe’s remarks cannot be construed as being sponsored by the school, and were not made under any manner of educational directive that would open him up to grading, and therefore academic consequences. The school did not make any requirements or restrictions about participation in social media, and his posts were not class-assigned.

In her opinion, Kelly cited both Bethel School District v. Fraser and Morse v. Frederick (the “Bong Hits 4 Jesus” case), in pointing out that the Supreme Court has gone to great lengths to emphasize that off-campus speech enjoys full First Amendment protection, even in the K-12 setting, much less when the speaker and his intended audience are all adults.

If Keefe decides to go forward, he has the option of requesting an en banc hearing before the full 8th Circuit bench, or appealing to the Supreme Court.

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