University of Louisville's Nursing School 'Tentacles' Case Ends Quietly

In an anticlimactic finish to a case in which a nursing student was expelled for posting an unflattering description of a birth on her Myspace page, the United States Court of Appeals for the Sixth Circuit held in an unpublished opinion that the University of Louisville's Nursing School did not violate student Nina Yoder's First Amendment rights. The events in this case date back to 2009, when Ms. Yoder posted a long description of the birth of a baby that did not exactly follow the traditional "miracle of birth" storyline. Instead, Ms. Yoder gave a graphic description of the mother's labor and described the moment of birth as: The momma's family is sitting in the corner, shaking all over, with the two younger brothers of the baby, the in-laws, and the bitching spouse. At last my girl gave one big push, and immediately out came a wrinkly bluish creature, all Picasso-like and weird, ugly as hell, covered in god knows what, screeching and waving its tentacles in the air. The Nursing School quickly expelled her for violating the school's honor code and patient confidentiality agreements and for acting in an unprofessional manner. Ms. Yoder sued the school in federal court, alleging a violation of her First Amendment rights. In August 2009, the United States District Court for the Western District of Kentucky allowed Ms. Yoder to return to school. In 2011, the Sixth Circuit reversed that decision because it did not consider the First Amendment issue, but rather came up with its own legal reasoning instead of deciding the case based on what the parties had argued. When the district court considered the case again, it dismissed Ms. Yoder's constitutional claims, including her First Amendment argument, because the defendants enjoyed sovereign and qualified immunity. She appealed and the Sixth Circuit has now written the final chapter in this case.  The Sixth Circuit's decision avoids analyzing the First Amendment claims as much as possible. The court affirmed the dismissal of some of Yoder's claims for declaratory and injunctive relief on mootness grounds. (Yoder has received her degree.) Otherwise, it decided the case on "qualified immunity" grounds. (The doctrine of qualified immunity shields public officials from personal liability for violating a constitutional right as long as the right in question was not "clearly established" at the time of the alleged wrongdoing, such that a reasonable official would have known that it was a violation.) The decision does not consider whether Yoder had a First Amendment right to post her description on a personal Myspace page, but focuses on the fact that such a right was not well-established in 2009. In short, the Sixth Circuit panel punted. FIRE worries, however, that the court accepted the argument that Yoder was disciplined on academic grounds, not for misconduct. The distinction is important because courts defer almost entirely to schools in discipline cases involving purely academic matters (see Bd. of Curators of Univ. of Mo. v. Horowitz (1978)), whereas they require "rudimentary precautions against unfair or mistaken findings of misconduct" in the form of notice and hearing requirements (see Goss v. Lopez (1975)) in non-academic misconduct cases. The court found that Yoder's violation of the confidentiality agreement was more like earning a bad grade—an indication of a lack of aptitude—than misconduct, namely breaking the rules. Although the line may be a bit blurry in the case of a professional school, the reasoning in the opinion is quite a stretch: "the Honor Code, Confidentiality Agreement, and Consent Form was mandated as a condition of her enrollment in the upper division ... [so that] the required conduct was a component of coursework, not part of a general student code of conduct." This case confirms the adage among lawyers that bad facts make bad law, so it may be worth filing this away as an unpublished opinion (meaning it does not set a legal precedent) ending a case with outlier facts. We will watch, however, to make sure other courts don't start conflating academic and misconduct cases.