KEEFE V. ADAMS: OVERREGULATING OFF-CAMPUS SPEECH UNDER PROFESSIONAL CODES OF CONDUCT
By: Maximilian Hall, Volume 101 Staff Member
The Court of Appeals for the Eighth Circuit recently held that a student’s off-campus speech, which violated the American Nursing Association Code of Ethics, could be regulated by a nursing program as an academic issue. A subsequent petition for writ of certiorari was denied. Regardless of whether this outcome was appropriate, the reasoning used by the court was very broad and has expanded the reach of professional schools to off-campus communication unrelated to a student’s academic or professional conduct.
I. THE FIRST AMENDMENT IN PROFESSIONAL PROGRAMS
The balance of First Amendment protections with campus climate concerns is an ongoing topic of fierce debate in academic communities. Colleges, particularly public institutions, must protect freedom of expression while also providing a safe and welcoming environment to students. Commentators often prioritize one over the other due to inherent conflicts between allowing all speech and placing limitations on speech in pursuit of benefits for the broader community. Note that whether a school can restrict student speech is distinct from whether a school should restrict speech. The impact of speech restrictions on the learning environment and quality of public discourse are central to the broader discussion of First Amendment rights on college campuses.
Professional programs add complexity to the analysis because they often incorporate professional codes of conduct into student codes. Such professional codes are often written using broad language and aspirations for the highest levels of ethical conduct. It is well established that professional schools can incorporate professional standards of conduct into their own conduct codes. This is because the practice of a profession requires more than satisfactory academic performance. Despite the importance of professional standards, the broad language of professional conduct codes risks being over-inclusive and having a chilling effect on student speech.
II. KEEFE V. ADAMS
Craig Keefe, a student in the Associate Degree Nursing Program at Central Lakes College (CLC), was removed from his program after the school concluded his Facebook posts constituted “behavior unbecoming of the profession and [a] transgression of professional boundaries.” Keefe’s Facebook posts had drawn complaints from two students and included potentially threatening content—administrators identified three posts as giving them particular concern:
[1.] 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.
[2.] 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 with it before to long. I might need some anger management.
[3.] LMAO [a classmate], 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…
It was undisputed that Keefe wrote these posts.
The school took prompt action once Keefe’s Facebook posts were brought to their attention. Connie Frisch, the Director of Nursing, contacted Keefe to set up a meeting after consulting with the Vice President of Academic Affairs. When Keefe requested information about the meeting’s purpose, Frisch responded that she would prefer to review the topic in person.
Frisch began the meeting by reviewing the school’s due process policy. She then told Keefe that “his Facebook posts raised concerns about his professionalism and boundary issues,” and read portions of his posts out loud. Keefe was then given an opportunity to respond. Frisch testified that Keefe was not remorseful or responsive to the concerns raised about his professionalism. Based on Keefe’s responses, Frisch removed him from the program and informed him that her decision could be appealed.
Keefe appealed Frisch’s decision to the Vice President with the assistance of a student advocate, but his appeal was denied. After this denial, Keefe requested a contested case hearing. The request for a hearing was denied because such hearings are only available in disciplinary actions, and CLC classified this as an academic violation. Keefe subsequently brought suit against administrators for alleged violations of his First and Fourteenth Amendment rights.
Keefe’s general claim regarding alleged First Amendment violations is that a public school cannot regulate off-campus speech unless it is unprotected by the First Amendment. The court held that a professional school may adopt a profession’s code of ethics as part of its curriculum, and that a determination of non-compliance would almost always be based partly on a student’s speech. The court found 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.’”
Keefe also alleged both substantive and procedural due process violations. The court first held that removing him from the nursing program for conduct that he admitted was unprofessional was far from the “conscious shocking” conduct required to establish a substantive due process violation. In reviewing procedural due process claims, the court identified an important distinction between academic and disciplinary actions taken by a school—disciplinary actions being subject to more stringent procedural requirements. The court ultimately found that the procedure provided to Keefe was sufficient under either standard because “Keefe was provided sufficient notice of the faculty’s dissatisfaction, an explanation of why his behavior fell short of the professionalism requirements of the Program, an opportunity to respond to the initial decision-maker, and an opportunity to appeal her adverse decision.”
III. KEEFE SIGNIFICANTLY EXPANDS RESTRICTIONS ON PROFESSIONAL STUDENTS’ FIRST AMENDMENT RIGHTS
The Keefe decision continued a pattern of judicially increasing institutional control over student speech. Although the speech in this particular case can be argued to be related to classmates and coursework, the reasoning of the court leaves open the possibility of regulating speech unrelated to the academic program or profession being pursued. Rather than such an expansive stance, the court should have decided this case under Tinker, which established a standard of “substantial disruption” for an academic institution’s ability to regulate speech. If Keefe was decided on “substantial disruption” grounds, the court may have reached the same outcome, but would have done so without opening the door to institutions being able to restrict undesirable off-campus speech of a student.
Applying the “substantial disruption” test to Keefe may have reached the same outcome. Other students had complained about Keefe’s posts and felt unsafe working with him. Given the high stakes of patient safety in a clinical setting, a court may have found that this substantially disrupted the program. However, it could also be argued that an off-campus post on a personal Facebook page is sufficiently disconnected from patient care and the academic program to prevent a claim of substantial disruption.
The “substantial disruption” test would also give a clear answer to whether future cases are academic or disciplinary in nature. Keefe’s dismissal from the nursing program was due to a violation of the code of conduct. Under the Supreme Court’s decision in Horowitz, dismissals are disciplinary if they relate to the violation of rules of conduct. Despite this, the court found that while Keefe’s dismissal could have been disciplinary, it was related to legitimate academic requirements, and therefore was appropriately an academic dismissal. Although this distinction made little difference in Keefe’s situation, future cases could present a situation in which the academic threshold for due process is met, but not the disciplinary threshold.
The court should have decided Keefe on narrower grounds that still would have allowed schools to take action when needed to protect other students and the educational environment. Instead, we are left with a rule that allows significant restriction of student speech. Furthermore, the line between academic and disciplinary actions taken by a school has been blurred, leaving students unsure of what procedure is due when their speech is regulated.
- Keefe v. Adams, 840 F.3d 523 (8th Cir. 2016). ↑
- Keefe v. Adams, No. 16-1035, 2017 U.S. LEXIS 2226 (Apr. 3, 2017). ↑
- For an overview, see Symposium, Balancing First Amendment Rights with an Inclusive Environment on Public University Campuses, 101 Minn. L. Rev. (forthcoming 2017). ↑
- See Dale Carpenter, University of Minnesota’s Proposed Free Speech Protections Would Be “The Most Comprehensive to Date”, Wash. Post: Volokh Conspiracy (May 10, 2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/05/10/university-of-minnesotas-proposed-free-speech-protections-would-be-the-most-comprehensive-to-date/?utm_term=.4c37d4455aca (discussing proposals and criticism regarding prioritizing free speech at the University of Minnesota). ↑
- See, e.g., id. ↑
- These issues have given rise to numerous protest and controversial public statements across the country. See, e.g., Kassy Dillon, After Protests and Riots, Free Speech is MIA on College Campuses, The Hill (Feb. 3, 2017), http://thehill.com/blogs/pundits-blog/education/317719-after-protests-and-riots-free-speech-is-mia-on-college-campuses. ↑
- The American Nursing Association Code of Ethics, for instance, requires “respect for . . . all individuals with whom the nurse interacts,” and under the heading of “preservation of wholeness of character,” requires that “the nurse embrace the values of the profession, merging them with personal values.” Am. Nursing Ass’n, Code of Ethics for Nurses with Interpretive Statements, 4, 20 (2015), http://nursingworld.org/DocumentVault/Ethics-1/Code-of-Ethics-for-Nurses.html. ↑
- Id. at 530; see also, e.g., Ward v. Polite, 667 F.3d 727 (6th Cir. 2012); Keeton v. Anderson-Wiley, 664 F.3d 865 (11th Cir. 2011); Tatro v. Univ. of Minn., 816 N.W.2d 509 (Minn. 2012). ↑
- Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 91 n.6, (“Personal hygiene and timeliness may be . . . important factors in a school’s determination of whether a student will make a good medical doctor . . . .”). ↑
- See Elissa Kerr, Professional Standards on Social Media: How Colleges and Universities Have Denied Students’ Constitutional Rights and Courts Refused to Intervene, 41 J.C. & U.L. 601, 621 (2015). ↑
- Keefe v. Adams, 840 F.3d 523, 525 (8th Cir. 2016). ↑
- Id. at 526–27. ↑
- Id. at 535. ↑
- Id. at 526. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. ↑
- Id. at 527. ↑
- Id. at 526. ↑
- Id. at 527. ↑
- Id. at 529. ↑
- Id. ↑
- Id. ↑
- Id. at 525. ↑
- Id. at 529. ↑
- Id. at 530–31. ↑
- Id. at 531 (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988)). ↑
- Id. at 533–34. ↑
- Id. at 534. ↑
- Id. ↑
- Id. at 536. ↑
- In Tatro v. University of Minnesota, 816 N.W.2d 509 (Minn. 2012), the fact pattern was strikingly similar to Keefe. In Tatro, the court held that rules narrowly tailored to relevant professional standards did not violate First Amendment rights of students. Tatro, 816 N.W.2d at 521. This decision allowed university regulation of off-campus speech on Facebook, generating significant concern, but still doing so in a more limited fashion than Keefe. See Ashley C. Johnson, Note, “Narrowly Tailored” and “Directly Related”: How the Minnesota Supreme Court’s Ruling in Tatro v. University of Minnesota Leaves Post-Secondary Students Powerless to the Often Broad and Indirect Rules of Their Public Universities, 36 Hamline L. Rev. 311 (2013). ↑
- Kerr, supra note 10 at 621 (“Under such a vague standard, these programs can punish students for almost any speech . . . . To warrant discipline, the student’s speech must only be determined unprofessional by . . . administrators, whom the courts are hesitant to second-guess . . . .”). ↑
- Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969). The Tinker line of cases has not been applied in previous professional situations because Tinker involved a high school, which raises different considerations than a college. Kerr, supra note 10 at 615. ↑
- Keefe v. Adams, 840 F.3d 523, 526 (8th Cir. 2016). ↑
- Kerr, supra note 10 at 621. ↑
- Bd. of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78 (1978); see also Brief of the American Civil Liberties Union of Minnesota as Amicus Curiae in Support of Plaintiff-Appellant and Urging Reversal at 4, Keefe v. Adams, 840 F.3d 523 (8th Cir. 2016) (No. 14-2988). ↑