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FIRE, ADF File ‘Amici’ Brief in Eighth Circuit for Student Expelled for Facebook Posts

By November 20, 2014

Yesterday, FIRE and Alliance Defending Freedom (ADF) filed an amici curiae (“friends of the court”) brief (PDF) with the U.S. Court of Appeals for the Eighth Circuit, arguing that a federal district court incorrectly dismissed former Central Lakes College (CLC) student Craig Keefe’s First Amendment lawsuit against the school.

Keefe was a nursing student at the public Minnesota college when he landed in trouble for comments he posted on Facebook expressing negative feelings towards his classmates. While his posts included profanity, all of them fell far outside the narrowly defined categories of speech unprotected by the First Amendment, such as “true threats.” Nevertheless, the public institution expelled Keefe in December 2012 “as a consequence of behavior unbecoming of the profession and transgression of professional boundaries.”

Keefe sued the college in federal court, arguing that it violated his First Amendment and due process rights. The district court dismissed the case (PDF) in August of this year, holding that “Central Lakes College may hold students in its associate degree nursing program to the standards of the nursing profession.” Keefe is now appealing the dismissal to the Eighth Circuit.

In the amici brief, FIRE and ADF argue that public colleges may not abandon the First Amendment for professional codes of conduct. This is especially important when those codes rely on vague standards and are used to restrict constitutionally protected expression, as in Keefe’s case.

FIRE and ADF explain in our brief how the lower court’s decision is inconsistent with First Amendment jurisprudence and, if allowed to stand, will have serious repercussions for free speech on campus:

The College attempts to justify its disregard for its legal obligations under the Bill of Rights by invoking a vague, subjective “professional standard.” But like the overly broad and vague college speech codes struck down by federal courts across the country over the past twenty-five years, the College’s purported justification for regulating and punishing protected student expression fails to pass First Amendment scrutiny. Public institutions may not require students to conform to professional conduct codes that violate the First Amendment. Nor may they interpret professional conduct codes to permit punishment of students for speech otherwise protected by the First Amendment.

Keefe’s punishment is particularly problematic because his speech was off-campus:

Punishment of off-campus student speech, which the district court sanctioned here, opens the door to far more ominous applications and teaches students the wrong lesson about their First Amendment rights in our modern liberal democracy. As with a public secondary school, a public college’s campus is “not without boundaries and the reach of school authorities is not without limits.”

Unfortunately, this isn’t the first time we’ve seen a public institution rely on hazy notions of “professional standards” to justify disciplining a student for protected speech. Last December, FIRE and the Student Press Law Center filed an amici brief in a similar case currently pending before the U.S. Court of Appeals for the Ninth Circuit.

In that case, Oyama v. University of Hawaii, a student in a teaching program was expelled for expressing unorthodox views about students with disabilities and age-of-consent laws. Our brief (PDF)—prepared by noted First Amendment expert Eugene Volokh in conjunction with the University of California, Los Angeles School of Law’s First Amendment Amicus Brief Clinic—pointed out that allowing institutions to expel students from professional programs simply because the university does not feel their viewpoints or beliefs are in accord with prevailing professional norms does great damage to the profession. What’s more, it lays the groundwork for silencing unpopular speech under vague, subjective “professional standards”:

If universities may dismiss students from educational programs on the grounds that the student’s views fail to comply with dominant professional norms, then most of these campus speech codes could be revived merely by being slightly reworded (for instance, on the theory that allegedly bigoted or otherwise offensive speech is contrary to professional norms). Indeed, if university student speech expressing calm, reasoned views on important public policy topics such as age of consent laws and disability education policy is stripped of First Amendment protection, then universities would have a virtually free hand in engaging in the viewpoint discrimination that the Supreme Court has long condemned. As the speech code cases show, even well-intentioned university administrators often face substantial pressure—from activists, legislators, other administrators, faculty, or students—to restrict student speech. The decision below would give administrators a roadmap to impose such restrictions.

As FIRE has now argued to both the Eighth and Ninth Circuits, such a result is antithetical to the purpose and mission of a university, as well as the legal obligations that bind public colleges and universities.

Read FIRE and ADF’s brief in the Keefe case and check out FIRE’s past coverage for more.

Schools: University of Hawaii at Hilo