Professional Standards and the First Amendment in Higher Education: When Institutional Academic Freedom Collides with Student Speech Rights

By Calvert, Clay | St. John's Law Review, Fall 2017 | Go to article overview

Professional Standards and the First Amendment in Higher Education: When Institutional Academic Freedom Collides with Student Speech Rights


Calvert, Clay, St. John's Law Review


INTRODUCTION

In 2016, a divided three-judge panel of the United States Court of Appeals for the Eighth Circuit upheld a student's expulsion from a public college's nursing program in Keefe v. Adams.1 In doing so, the majority rejected Craig Keefe's contention that Central Lakes College ("CLC")2 violated his First Amendment3 speech rights by punishing him for messages posted on Facebook while off campus.4

In rebuffing Keefe, the majority declared it lawful for the Minnesota college to enforce against him tenets of the American Nurses Association's ("ANA")5 Code of Ethics.6 This code provides, in key part, that a "nurse treats colleagues, employees, assistants, and students with respect and compassion. This standard of conduct precludes any and all forms of prejudicial actions, any form of harassment or threatening behavior, or disregard for the effect of one's actions on others."7 It adds that a "nurse maintains compassionate and caring relationships with colleagues"8 and that "[i]n all encounters, nurses are responsible for retaining their professional boundaries."9

CLC incorporated ANA's code into its nursing program.10 It also determined a trio of Keefe's Facebook posts violated the code as "behavior unbecoming of the profession and [a] transgression of professional boundaries."11 Keefe, however, claimed he penned the posts in Fall 2012 solely to vent frustrations while "working full-time and studying for his nursing degree an additional 45-50 hours per week."12 Two posts, set forth below in unaltered, grammatically flawed form, expressed Keefe's anger at a classmate:

* "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."13

* "[Y]ou 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 . . . "14

In a third missive, Keefe conveyed not merely rage but possible violence, as he suggested giving "someone a hemopneumothorax"15 and that he "might need some anger management."16 Keefe testified that "a hemopneumothorax is a 'trauma' where the lung is punctured and air and blood flood the lung cavity; it is not a medical procedure."17

In brief, Keefe's disquieting off-campus, internet-posted messages led to his expulsion because they were "unprofessional"18 when viewed through the prism of ANA's ethics code. This outcome is profoundly problematic because an ethics code of guiding aspirational principles suddenly takes on binding legal force for students who have not achieved professional status. Furthermore, the fact that the ethical principles quoted above19 lack definitional precision, a flaw typically exposing a statute to a void-for-vagueness challenge,20 was cursorily dismissed by the Eighth Circuit. The majority simply reasoned that ANA's "standards are necessarily quite general, but they are widely recognized and followed"21 and students such as Craig Keefe, in turn, "consent in writing to be bound"22 by them. Put bluntly, Keefe signed away his First Amendment rights.

But most troubling from a pro-free speech perspective, the appellate court upheld the college student's expulsion using a test developed by the United States Supreme Court in Hazelwood School District v. Kuhlmeier.23 That case examined censorship of the on-campus speech of high school students occurring within the curriculum. In particular, Hazelwood involved suppression of two articles in a school-sponsored newspaper.24 The Court held "that educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. …

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