UPDATES & ANALYSIS

10.26

Eighth Circuit: Your Facebook post could get you kicked out of school

by Ryan Leemkuil | October 26, 2016

By Ryan Leemkuil

Can a public college kick you out of school for stuff you post on Facebook?  Yes, according to the Eighth Circuit’s decision today in Keefe v. Adams, a case that drew interest from numerous free speech and anti-censorship groups. 

Craig Keefe was a student in the nursing program at Central Lakes College.  He was also, like millions of college students, a Facebook user.  But Keefe didn’t just post cat pics and news stories.  No, Keefe posted about his anger problems, called another student a “stupid bitch,” and said he was going to give someone a hemopneumothorax—a puncturing of the lung that allows air and blood to flood the lung cavity (yikes!).  Perhaps unsurprisingly, a couple students complained to faculty that Keefe’s posts made them “uncomfortable and nervous,” and the school ultimately expelled Keefe for violating school policies on professionalism.

Keefe responded with a lawsuit, claiming that his expulsion violated his free speech rights under the First Amendment.  Keefe framed his argument broadly and focused on the fact that his speech was made in online, off-campus Facebook posts.  According to Keefe, a college student may not be punished for off-campus speech unless it is speech that is unprotected by the First Amendment, such as obscenity.

The Eighth Circuit, describing Keefe’s position as “extreme,” sided with the school.  The Court began by noting that courts have long upheld academic requirements of professionalism, especially for programs training medical professionals.  The Court then rejected Keefe’s distinction between online and on-campus speech.  “A student may demonstrate an unacceptable lack of professionalism off campus,” Judge Loken explained, “as well as in the classroom, and by speech as well as conduct.”  Thus, a college may require compliance with professional standards off campus so long as the school’s restrictions are “reasonably related to legitimate pedagogical concerns.”  That was met here, the Court explained, because Keefe’s Facebook posts, coupled with his lack of remorse, demonstrated to the school that he was “unable to meet the professional demands of being a nurse.”

Judge Kelly dissented.  In her view, the school’s academic concerns were beside the point, because Keefe’s speech was “off-campus, was not school-sponsored, and cannot be reasonably attributed to the school.”  Judge Kelly also expressed concern for invoking generic codes of conduct—“respect and compassion”—as the basis to restrict speech.  Echoing the broader critiques of “safe spaces” and campus speech codes, Judge Kelly warned that these vague standards“could easily be used to restrict protected speech” and may not give students enough notice of what is or is not allowed. 

*Ryan Leemkuil is legal counsel at Fareway  Stores and before that was an attorney at Nyemaster Goode. 

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