Eighth Circuit Decision Opens Door for Violations of Students’ Speech Rights

In a decision issued last week in Keefe v. Adams, the U.S. Court of Appeals for the Eighth Circuit rejected a nursing student’s claim that his free speech and due process rights were violated when his school punished him for his off-campus Facebook posts. The decision strikes a blow to the rights of students in professional-level programs.

At issue in Keefe were the Facebook comments of Craig Keefe, a Central Lakes College (CLC) nursing student. Keefe was removed from the nursing degree program after a number of his Facebook posts were brought to the administration’s attention, including the following (all errors as written):

Glad group projects are group projects. I give her a big fat F for changing the group power point at eleven last night and resubmitting. Not enough whiskey to control that anger. 

Doesnt anyone know or have heard of mechanical pencils. Im going to take this electric pencil sharpener in this class and give someone a hemopneumothorax [lung puncture] with it before to long. I might need some anger management.

LMAO [classmate’s name], you keep reporting my post and get me banded. I don’t really care. If thats the smartest thing you can come up with than I completely understand why your going to fail out of the RN program you stupid bitch....And quite creeping on my page. Your not a friend of mine for a reason. If you don’t like what I have to say than don’t come and ask me, thats basically what creeping is isn’t it. Stay off my page…

After a student complained to Keefe’s instructor, he received an email from the director of nursing asking for a meeting. Keefe asked about the subject of the meeting and was told that she would rather discuss it in person and that he did not need to prepare. At the meeting, CLC administrators decided to remove Keefe from the nursing program “as a consequence of behavior unbecoming of the profession and transgression of professional boundaries,” although they did allow Keefe to enroll in a different program at CLC. He filed suit after his appeal through CLC was denied.

The Eighth Circuit panel first examined whether CLC’s policies ran afoul of the First Amendment. According to CLC, Keefe’s Facebook posts violated the Nursing Program Student Handbook, which incorporates the professional code of ethics of the American Nurses Association. Per the handbook, behaviors that warrant removal from the program include “transgression of professional boundaries,” “behavior unbecoming of the Nursing Profession,” and other violations of the professionalism code.

The court rejected Keefe’s argument that these broadly-worded standards violated his right to free speech, holding instead that “professional codes of ethics are a legitimate part of a professional school’s curriculum that do not, at least on their face, run afoul of the First Amendment.”

The court then turned to whether the CLC violated Keefe’s First Amendment rights by punishing him for his Facebook posts. Keefe argued that students may not be punished for off-campus speech so long as the expression is protected by the First Amendment. The court rejected this contention, stating that “college administrators and educators in a professional school have discretion to require compliance with recognized standards of the profession, both on and off campus, so long as their actions are reasonably related to legitimate pedagogical concerns.” (Internal quotations omitted.)

Moving to Keefe’s due process claims, the crux of the dispute concerned CLC’s characterization of Keefe’s expulsion as an “academic” rather than a “disciplinary” decision. This is an important distinction because while colleges have significant leeway in arranging their academic misconduct proceedings, disciplinary proceedings must offer basic due process protections, such as adequate notice and an opportunity to be heard. The court, however, refused to classify the proceeding as academic or disciplinary because it held that CLC’s process did not not violate Keefe’s due process rights under either standard.  

We at FIRE are dismayed and perplexed by the Eighth Circuit’s rationales for denying Keefe’s claims. As FIRE’s Ari Cohn stated to U.S. News, this decision is “an end-run around student rights. … Students in professional programs could find themselves in an increasingly perilous situation where they have to refrain from saying anything that might offend or upset someone else or risk being thrown out of their program. In this case, the standards were so vague that discipline could be meted out for any disfavored speech.”

Commenting on the breadth of the decision to Insider Higher Ed, FIRE’s Will Creeley stated that “[t]he idea that students are somehow professionals as soon as they matriculate, and that if they say something anywhere online that a watchful administrator deems to be out of line with a vague subjective notion of professionalism, they can be censored, is very disturbing. [Under this ruling], as soon as you sign up for a public university program that has incorporated a professional code of ethics, you’re on the clock at all hours.”

Our concerns about elevating broadly worded professionalism codes over the First Amendment were expressed in an amici curiae (“friends of the court”) brief we submitted to the Eighth Circuit, joined by Alliance Defending Freedom. In our brief, we highlighted how vague and subjective professionalism codes may be used to unlawfully punish protected student speech. We argued that public colleges “may not require students to conform to professional conduct codes that violate the First Amendment,” nor “interpret professional conduct codes to permit punishment of students for speech otherwise protected by the First Amendment.” We also discussed how CLC abused its power by unlawfully punishing online speech:

Public colleges cannot justify the suppression of student speech on the Internet unless it has some tangible impact on campus. Even then, colleges may only subject students to discipline for online unprotected speech, such as true threats, harassment, and defamation. The College did not prove that Mr. Keefe’s speech fell into any of those unprotected categories. Rather, it simply claimed an unlimited right to regulate student speech online based on whether the speech offended someone else. The First Amendment does not permit such a result.

Keefe is not the only case in which FIRE has pushed back against the use of professionalism codes to violate graduate student speech. In other amici briefs filed in support of graduate students free speech rights, we have consistently reminded courts that graduate students at public colleges and universities enjoy the full protection of the First Amendment. We argued that public colleges may not punish graduate students for their protected speech because university policy cannot overrule the Constitution.

Many of the flaws of the court’s decision are highlighted in a separate opinion by Circuit Judge Jane Kelly, dissenting from the panel opinion as to Keefe’s First Amendment claim. Judge Kelly would have held that Keefe’s speech was protected because it “was off-campus, was not school-sponsored, and cannot be reasonably attributed to the school.” She notes that courts have “affirmatively reject[ed] the notion that students can be disciplined based on speech unrelated to the fulfillment of a curricular requirement. … Quite simply, [the] Code requirements … could easily be used to restrict protected speech.” She also attacks the majority for misapplying high school speech cases to public colleges, which “are traditionally places of virtually unlimited free expression.”

Judge Kelly’s opinion also sharply critiqued the majority’s due process rationale, though she concurred in its decision on qualified immunity grounds. She reasoned that the proceeding was disciplinary—not academic—because it involved “an immediate imposition of discipline for misbehavior[,]” rather than a failure to achieve an academic or curricular standard. A public college, Kelly argued, cannot transform a punishment for misbehavior into an academic decision “simply by declaring it an academic goal of the school to cultivate civility in its students.”

Viewed as a disciplinary proceeding, Kelly found significant due process flaws in CLC’s process. For example, she noted that Keefe was not given adequate notice or time to prepare a response to the evidence or specific charges against him. Considering that courts have required such procedures for even short suspensions, Judge Kelly would have held that CLC wrongfully denied Keefe these protections before derailing his academic career.

Keefe is part of a troubling trend as just one of several recent cases in which students have been punished for unpopular opinions in the name of “professionalism.” In Ward v. Polite, the Sixth Circuit allowed a counseling student’s suit to continue after finding sufficient evidence that she was expelled for her religious beliefs. Keeton v. Anderson-Wiley similarly featured a graduate student expelled from her university counselling program for her views on homosexuality; but her claim was denied by the Eighth Circuit on appeal. Additionally, in Oyama v. University of Hawaii, the Ninth Circuit denied an education student’s claim that his  application for a student-teaching position was denied due to his political opinions, finding instead that this was an “academic judgement.” In our amici briefs in support of these students, FIRE has defended their right to hold and express dissenting views while enrolled in graduate level programs.

FIRE will keep readers posted in the event Keefe is appealed. In the meantime, we will continue to fight to ensure that students are not unjustly expelled by colleges that prioritize professionalism codes over the freedom of speech enshrined in the First Amendment.