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First Amendment allies ask Supreme Court to review, reverse harmful decision on ‘unprofessional’ student speech

By March 29, 2017

The Cato Institute, the Electronic Frontier Foundation, the National Coalition Against Censorship, and the Student Press Law Center filed an amici curiae (“friends of the court”) brief Monday, asking the Supreme Court of the United States to review a decision by a federal appeals court that endangers student free speech rights. UCLA School of Law professor Eugene Volokh prepared the brief with the help of UCLA law students.

Last October, the U.S. Court of Appeals for the Eighth Circuit held that Craig Keefe’s free speech and due process rights were not violated when Central Lakes College removed him from its nursing program due to posts Keefe made on Facebook while off campus. College administrators argued that Keefe’s complaints about his classmates constituted “behavior unbecoming of the profession and transgression of professional boundaries” and therefore violated the Nursing Program Student Handbook, which incorporated the professional code of ethics of the American Nurses Association.

In his suit, Keefe claimed that the public institution’s decision to punish him based on such broadly-worded standards and its failure to afford Keefe a fair hearing before doing so violated his First and Fourteenth Amendment rights, respectively.

The Eighth Circuit rejected Keefe’s arguments, holding that “professional codes of ethics are a legitimate part of a professional school’s curriculum that do not, at least on their face, run afoul of the First Amendment” and that Central Lakes College afforded Keefe sufficient opportunity to be heard.

Keefe has now requested review by the Supreme Court, filing a petition for a writ of certiorari. (FIRE is providing financial support for that petition.)

As my colleague Zach Greenberg noted in November, this decision opens the door for college administrators to censor and punish expression by students in professional-level programs with impunity. Speaking to Insider Higher Ed last year, FIRE’s Will Creeley aptly summed up the ramifications of the Eighth Circuit’s ruling against Keefe:

The idea that students are somehow professionals as soon as they matriculate, and that if they say something anywhere online that a watchful administrator deems to be out of line with a vague subjective notion of professionalism, they can be censored, is very disturbing. [Under this ruling], as soon as you sign up for a public university program that has incorporated a professional code of ethics, you’re on the clock at all hours.

The amici brief filed Monday advocates for a much more speech-protective line to be drawn:

A private association can adopt whatever views of professionalism it chooses; but the First Amendment prevents a public university from embodying such private associations’ views into officially enforced speech restrictions.

If they are allowed to do so, administrators will use their broad discretion to punish student speech they disagree with or simply don’t like under the guise of the speech being “unprofessional.” In fact, as the brief points out, college administrators have already done just that — including in cases relied on by the Eighth Circuit.

Writing about the brief this week, Frank LoMonte, attorney and executive director of the Student Press Law Center, lamented that the Eighth Circuit’s decision “has left college students with lesser free-speech protections than 12-year-olds.” Ilya Shapiro and David McDonald of Cato wrote that were the decision allowed to stand, “professional schools, including law and business schools” would be able to “enforce ideological litmus tests under the guise of ensuring adherence to professional ethics.” This result would stifle debate and discussion among students in a range of professional programs, which is why it’s particularly appropriate that UCLA law students helped in developing the brief.

FIRE commends the groups and individuals who contributed to this amici brief and hopes to see the Supreme Court review and reverse the Eighth Circuit’s decision.