LAWSUIT: The University of Tennessee tried to expel a grad student for a tweet about Cardi B and other social media posts. Now she’s fighting back.

• The University of Tennessee’s pharmacy school twice investigated a graduate student after an anonymous complaint about her sex-positive social media content.
• UT expelled her from her doctoral program — but reversed its decision when FIRE intervened.
• Student: “It’s just a matter of time before they come back for another investigation into my expression.”
• Schools must stop policing students’ personal online expression when it has nothing to do with their education.

MEMPHIS, Tenn., Feb. 5, 2021 — Teetering on the edge of expulsion from her pharmacy program for her social media posts, Kimberly Diei sought help to defend her rights. Now, after two unconstitutional investigations and facing the threat of a third, she seeks justice.

Diei filed a First Amendment lawsuit against the University of Tennessee Wednesday. Backed by the Foundation for Individual Rights in Education, Diei’s lawsuit argues that colleges cannot police a student’s personal expression outside of school simply because they do not like or understand it.

“It’s just a matter of time before they come back for another investigation into my expression on social media,” said Diei, who is seeking her doctorate in pharmacy with an emphasis on nuclear pharmacy. “UT spied on my social media activity — activity that has no bearing on my success as a pharmacist or my education. I can be a successful and professional pharmacist as well as a strong woman that embraces her sexuality. The two are not mutually exclusive.”

COURTESY PHOTOS OF PLAINTIFF KIMBERLY DIEI

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In September 2019, one month after enrolling at the University of Tennessee Health Science Center, an administrator told Diei that the university received an anonymous complaint about her Instagram and Twitter accounts — and that she was now under investigation.

Diei appeared before the college’s Professional Conduct Committee, which unanimously determined that she violated university policies with what the committee deemed to be her “crude” and “sexual” posts. Refusing to identify the policies she violated or even the posts in question, the committee required Diei to write a letter reflecting on her behavior. She completed the letter despite reservations that the committee was violating her First Amendment rights.

Less than a year later, the committee notified Diei of a second investigation, this time with screenshots from her social media accounts. In one tweet, Diei contributed to a trending discussion on Twitter about the song “WAP” by Cardi B and Megan Thee Stallion, suggesting lyrics for a possible remix. In another, Diei joked about the amount of time she spends getting prepared to go out by referencing a popular Beyoncé song.

“It’s so important to me to just have my voice, because people that look like me are often told ‘be quiet, stay in the back,’ and that just does not suit my personality,” Diei said. “I’m not asking for approval. I’m asking for respect.”

The photos and tweets the school identified — which comply with the social media sites’ policies — are fully protected by the First Amendment. Further, the accounts are operated under a pseudonym and do not even reveal Diei’s identity as a student at the College of Pharmacy or indicate any association with the university.

On Sept. 1, 2020 — four days after being notified that she was once again under investigation, and still without any information on which policies she allegedly violated — the committee unanimously voted to expel Diei from the program. In the midst of preparing for an exam and other coursework, she appealed to the dean. The dean reversed the decision almost a month later, but only after receiving a letter from FIRE.

“The First Amendment protects the right of students to suggest lyrics for a Cardi B remix on Twitter and Instagram. Period,” said FIRE attorney Greg H. Greubel. “Kim is an authentic and successful woman, and FIRE believes that it is important to show the public that students like Kim are capable of being successful professionals while also being free to personally express themselves on social media. Kim is standing up for every American who hopes to have a personal life in addition to their professional life.”

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As a public institution bound by the Constitution, UT cannot censor a student’s protected speech. FIRE and the courts have long held that even threats of investigations for protected speech have a chilling effect on expression.

“I’m not going to go through this a third time, during my third year,” Diei said. “So, I wanted to send a clear message: Don’t mess with me and don’t do this again to anyone else.”

To this day, UT has never revealed which policies Diei allegedly violated, apart from the vague claim that her posts violated “various professionalism codes.”

The lawsuit aims to stop UT from further investigations into Diei’s social media, eliminate the college’s overbroad professionalism policies, and win damages for Diei over the college interfering with her First Amendment and due process rights.

This isn’t UT’s first foray into censoring sex-related speech. At the bidding of conservative pundits and elected officials, the university engaged in a years-long crusade to derail Sex Week, a student-led initiative to have an “academically informed discussion about all things related to sex, sexuality, relationships, and gender.” In recent years, the legislature literally outlawed state funding for Sex Week, and UT President Randy Boyd made it clear that “we expressly do not condone Sex Week.” Boyd is named in his individual and official capacities, along with Professionalism Conduct Committee Chairperson Christa George and the non-student members of the UT Board of Trustees.

“We work tirelessly to defend students and faculty members without resorting to lawsuits, but universities need to know that FIRE will use every tool at our disposal when it comes to holding them accountable for rights violations,” said Vice President of Litigation Darpana Sheth, who joined FIRE late last year. “Our message to university censors is clear: Defend individual rights or we’ll see you in court.”

The Foundation for Individual Rights in Education (FIRE) is a nonpartisan, nonprofit organization dedicated to defending and sustaining the individual rights of students and faculty members at America’s colleges and universities. These rights include freedom of speech, freedom of association, due process, legal equality, religious liberty, and sanctity of conscience — the essential qualities of liberty.

CONTACT:
Daniel Burnett, Director of Communications, FIRE: 215-717-3473; media@thefire.org

PRONUNCIATION GUIDE:
Kimberly Diei (DEE-ay)
Greg Greubel (GRU-bul)
Darpana (dar-PON-uh) Sheth