The Next Step in Student Speech Analysis? How the Eighth Circuit Further Complicates the First Amendment Rights of University Students in Keefe v. Adams

• Publication year: 2022

51 Creighton L. Rev. 425. THE NEXT STEP IN STUDENT SPEECH ANALYSIS? HOW THE EIGHTH CIRCUIT FURTHER COMPLICATES THE FIRST AMENDMENT RIGHTS OF UNIVERSITY STUDENTS IN KEEFE V. ADAMS

THE NEXT STEP IN STUDENT SPEECH ANALYSIS? HOW THE EIGHTH CIRCUIT FURTHER COMPLICATES THE FIRST AMENDMENT RIGHTS OF UNIVERSITY STUDENTS IN KEEFE V. ADAMS

Kai Wahrmann-Harry, '19

I. INTRODUCTION

In the seminal student speech case, Tinker v. Des Moines Independent Community School District, (fn1) the United States Supreme Court concluded that high school officials violated students' First Amendment rights when they were punished for expressing their opposition to the Vietnam War.(fn2) The Court decided that school officials may discipline a student for speech made on school premises only if the speech causes a material and substantial interference with school activities or the rights of other students.(fn3) Following Tinker, the Court addressed other instances in which high school officials may regulate student speech.(fn4) In Hazelwood School District v. Kuhlmeier,(fn5) the Court held that high school officials were permitted to regulate student speech conducted in school-sponsored expressive activities so long as the regulation was reasonably related to legitimate pedagogical concerns.(fn6) Relevant to both Tinker and Hazelwood was the situational context: in both cases the students the schools respectively disciplined were high school students.(fn7)

Since Hazelwood, however, courts have struggled to determine the applicable legal standard for assessing the First Amendment rights of students at the university level and beyond.(fn8) Further complicating this issue, the advent, evolution, and widespread use of social media has muddled any First Amendment analysis conducted by a court in the context of higher education.(fn9) To date, the United States Supreme Court has consistently refused to hear cases on this issue, offering no guidance on what standard is applicable and leaving courts mired in confusion regarding off-campus speech in a university setting.(fn10)

In Keefe v. Adams,(fn11) the United States Court of Appeals for the Eighth Circuit held that the First Amendment rights of a nursing student were not violated when his university dismissed him for statements he made on his personal Facebook account.(fn12) Mr. Keefe's statements included: wanting to give someone a hemopneumothorax with an electric pencil sharpener; needing to take anger management; and referring to another student as a stupid bitch.(fn13) The Eighth Circuit applied both Hazelwood and Tinker, reasoning speech that violated established professional nursing standards was subject to administrative discipline.(fn14)

This Note will first present the facts and holding of Keefe v. Adams.(fn15) Next, this Note will discuss the development of the student speech doctrine leading up to the Keefe decision.(fn16) Finally, this Note will argue that the Eighth Circuit erred when it failed to apply the directly related to and narrowly tailored test to assess Central Lakes College's expulsion of Mr. Keefe for violating professional conduct standards because Tinker and Hazelwood are inapplicable to a university student's off-campus, non-school-sponsored speech.(fn17)

II. FACTS AND HOLDING

In Keefe v. Adams,(fn18) Craig Keefe brought claims against several administrators at Central Lakes College's Brainerd campus (collectively, "CLC"), alleging that the basis for his dismissal violated his First Amendment rights.(fn19) CLC dismissed Mr. Keefe from its Associate Degree Nursing Program ("Program") for a series of offensive statements he posted on his public Facebook account.(fn20) CLC administrators determined that Mr. Keefe's posts violated the Student Conduct Code ("Code") because the posts demonstrated behavior unbecoming of the nursing profession, a breach of confidentiality, and a transgression of professional boundaries.(fn21) The Code required students to uphold and adhere to the Nursing Association Code of Ethics ("NACE"), which illustrated the professional and ethical standards for nursing professionals.(fn22) CLC dismissed Mr. Keefe from the Program, citing his conduct as an academic program violation under both the Code and NACE.(fn23)

Soon thereafter, Mr. Keefe brought a 42 U.S.C. § 1983 action against CLC in the United States District Court for the District of Minnesota alleging that his dismissal from the Program violated his First Amendment rights.(fn24) The district court disagreed, concluding that Mr. Keefe's First Amendment rights had not been violated because CLC was permitted to require Program students adhere to nursing profession standards.(fn25) However, the court's reasoning did not address the specific issue of whether a professional school may discipline a student for comments made on an online, off-campus Facebook post.(fn26) Instead, the court focused on whether a professional school was within its authority to dismiss a student for violating professional standards.(fn27)

On appeal, the United States Court of Appeals for the Eighth Circuit affirmed the district court's grant of summary judgment to CLC on Mr. Keefe's First Amendment claim.(fn28) Mr. Keefe argued that First Amendment's protections extended to students' off-campus speech, such as online Facebook posts.(fn29) The Eighth Circuit rejected Mr. Keefe's argument, determining that administrators may discipline students for violations of professional standards both on and off campus so long as their regulation is reasonably related to pedagogical concerns.(fn30) The court noted Tinker v. Des Moines Independent Community School District(fn31) authorized the discipline of public school students for off-campus social media posts when it was reasonably foreseeable that the posts would reach the school community and cause a material and substantial interference to the educational setting.(fn32) The court reasoned that because compliance with NACE was a legitimate part of the Program's curriculum, academic speech that violated those standards constituted a material disruption of the Program's legitimate pedagogical concerns.(fn33)

Moreover, the Eighth Circuit stated that other circuits similarly recognized the greater significance the curriculum possesses at the university level as compared to the high school context the United States Supreme Court, in Hazelwood School District v. Kuhlmeier, (fn34) addressed.(fn35) Against this backdrop, the court cited to a case from the United States Court of Appeals for the Sixth Circuit, Ward v. Polite,(fn36) where the Sixth Circuit stated that when the curriculum is available for all to see, it will be nearly impossible for students to exercise a First Amendment claim against them.(fn37) The court further rejected Mr. Keefe's argument that his Facebook posts were unrelated to academic assignments or requirements under Hazelwood, reasoning that the record conclusively established that his Facebook posts were directed at peers, discussed their activities in the Program, and contained a physical threat related to their coursework.(fn38) Accordingly, the Eighth Circuit affirmed the district court's grant of summary judgment.(fn39)

Judge Kelly dissented to the majority's decision, asserting that a genuine issue of material fact existed as to whether the school acted within its constitutional authority to discipline Mr. Keefe's non-academic, off-campus speech.(fn40) Judge Kelly argued that Hazelwood was inapplicable to the issue at hand because Mr. Keefe's Facebook posts were off-campus, were not school-sponsored, and could not be attributed to the school.(fn41) Furthermore, Judge Kelly disagreed with the majority's position that Mr. Keefe's speech was curricular, reasoning the posts were not made in connection to fulfilling a Program requirement and did not indicate an intent to break specific curricular rules.(fn42) Judge Kelly reasoned that the Court precedent rejected the conclusion that Mr. Keefe's posts were not curricular speech simply because the posts were directed at peers and discussed their conduct in the Program.(fn43) Additionally, Judge Kelly rejected the broad contention that Mr. Keefe's mere use of a medical training term could equate his post to curricular speech.(fn44) In conclusion, Judge Kelly argued that the Eighth Circuit improperly relied on cases not applicable to speech made off campus and unrelated to academic assignments.(fn45)

III. BACKGROUND

A. TINKER V. DES MOINES INDEPENDENT COMMUNITY SCHOOL DISTRICT: SETTING THE STAGE FOR THE HIGH SCHOOL STUDENT SPEECH DOCTRINE

In Tinker v. Des Moines Independent Community School District,(fn46) the United States Supreme Court ruled that high school officials may discipline a student for speech made on school premises, if school authorities forecast that the speech will cause a material and substantial interference with school activities or the rights of others.(fn47) In Tinker, high school students John Tinker and Christopher Eckhardt, along with junior-high school student Mary Beth Tinker (collectively, "Students"), attempted to wear black armbands to school in protest of the Vietnam War.(fn48) Administrators prohibited the Students from returning until they removed the armbands.(fn49) In response, the Students sued the Des Moines Independent Community School District, its board of directors, administrative officials, and faculty (collectively, "School"), alleging the School's...