University of Louisville Nursing Student’s Case Dismissed
April 5, 2012
Torch readers may recall the case of Nina Yoder, a nursing student at the University of Louisville who was expelled in 2009. As a nursing student, Yoder had witnessed a live birth and posted a detailed description of the event on social networking website MySpace.com. Yoder was quickly expelled for violating the school's Honor Code and a Confidentiality Agreement, and she commenced a suit in federal district court alleging violations of her First and Fourteenth Amendment rights. Yoder sought reinstatement as a nursing student, as well as damages.
Initially, the United States District Court for the Western District of Kentucky ruled in favor (.PDF) of Yoder on nonconstitutional grounds, finding that Yoder had actually not violated either the Honor Code or the Confidentiality Agreement. That ruling was overturned on appeal (.PDF) last April by the United States Court of Appeals for the Sixth Circuit, which held that the district court had reached an issue not litigated by either party. In other words, the Sixth Circuit held that Yoder was arguing that the Honor Code and Confidentiality Agreement were unconstitutional, not that she hadn't violated them. The Sixth Circuit then remanded the case to the district court to determine not whether Yoder had or hadn't breached the clauses, but whether the clauses were unconstitutional in the first place.
That issue was decided last Friday when the United States District Court for the Western District of Kentucky dismissed Yoder's remaining claims on a summary judgment motion. The decision is available here. This ruling is important, as it implicates both the First Amendment rights of collegiate students in professional programs and the due process rights of students accused of violating codes of conduct.
In dismissing Yoder's First Amendment retaliation claim, the district court applied the traditional test for such retaliation claims, looking to see whether (1) Yoder engaged in constitutionally protected conduct, (2) the University of Louisville took adverse action against her that would deter a person of "ordinary firmness" from continuing to engage in that conduct, and (3) the university took that action in part because of Yoder's protected conduct. See Mezibov v. Allen, 411 F.3d 712, 717 (6th Cir. 2005).
While it is obvious that the university expelled Yoder because of her MySpace posts, and that the expulsion would deter other people of "ordinary firmness" in the future from engaging in similar expression, the court did not reach those elements of the test because it decided that her post was not constitutionally protected conduct. The court reached this decision by holding that all of the information Yoder posted about the live birth was covered by a Consent Form that limited her to presenting the material to her instructor in class. The court held that "[b]ecause Yoder herself agreed not to publicly disseminate the information that she posted on the internet, she is not entitled to now claim that she had a constitutional right to do so."
Certain students do contract away their First Amendment rights in certain situations. Student-athletes often agree to limit their use of social media in order to be allowed to compete in college athletics, for example. But student-athletes and other members of specific groups present a special case. As Samantha noted recently here on The Torch:
University sports teams and bands are not independent from the university in the way that student organizations (like a chess club or the College Republicans) are. As a result, universities do have more leeway to regulate those organizations, including conditioning membership upon adherence to certain standards of behavior. Indeed, the U.S. Supreme Court has held that "[b]y choosing to ‘go out for the team,' [students] voluntarily subject themselves to a degree of regulation even higher than that imposed on students generally... students who voluntarily participate in school athletics have reason to expect intrusions upon normal rights and privileges." Vernonia School District 47J v. Acton, 515 U.S. 646, 657 (1995).
In contrast, the limits of the ability of regular students to contract away their First Amendment rights have not been thoroughly assessed by courts. Could a public university require all students to agree not to discuss what goes on in class with the general public? We doubt it; such a ban would surely be contrary to a public institution's educational mission, for starters, and it's very difficult to imagine a legitimate (let alone significant) governmental interest that such a broad ban might serve. What's more, we know that students at public universities cannot agree to confine their speech to a particular area on campus or refrain from engaging in controversial or offensive expression. Courts have struck down such policies repeatedly over several decades now. So the district court's conclusion that Yoder voluntarily contracted away her First Amendment rights as a condition of her participation in a specific, highly sensitive kind of professional education should be construed as a very limited holding.
Yoder also had an important procedural due process claim against the University of Louisville dismissed, as well. When a person is (1) deprived of a protected property or liberty interest, (2) without due process, a violation of procedural due process has occured. See Board of Regents v. Roth, 408 U.S. 564, 569-70 (1972). Briefly, when the University of Louisville found out about Yoder's blog post, it met with Yoder on short notice a few times and summarily dismissed her. The district court held that this would have been a clear violation of procedural due process if she were dismissed for disciplinary reasons, but not a violation of procedural due process because her dismissal was actually for academic reasons.
Following the Supreme Court case of Board of Curators v. Horowitz, 435 U.S. 78 (1978), courts differentiate between punishment for academic reasons and punishment for disciplinary reasons. Because academic decisions are "more subjective and evaluative than the typical factual questions presented at an average disciplinary decision," courts feel that they are ill-equipped to review academic decisions. Horowitz, 435 U.S. at 90. While a student accused of sexual assault needs a formal hearing and an appeals process, a student given an "F" for cheating is not necessarily entitled to a hearing.
The court held that Yoder's dismissal was academic, partly because the university sent her a letter characterizing her dismissal as "academic" and premised on grounds of failure to conform to professional standards. However, this part of the decision also seems to lack something important. While it is clear that the court is right that the law permits academic dismissals to be based on "more than objective grading criteria," the court fails to even attempt to draw a line between academic and disciplinary. Instead, it relies on the letter of the university, which most likely was a form letter that had been reviewed by university counsel. This kind of unquestioning judicial deference to "academic" decisions is disappointing, as we've discussed here before.
Ultimately, while the district court's decision may be limited by the facts, the rationale leaves something to be desired. Students have constitutional rights that are substantive, but this decision smacks of formalism. For Yoder, there is a happy ending: she has been reinstated as a nursing student at the University of Louisville. However, the decision in her case provides little to no protection to similarly situated students in the future.