A federal appeals court has ruled that public college officials did not violate free speech or due process rights of a student removed from a nursing program after writing Facebook posts during his free time that allegedly violated professional standards.

Free speech advocates fear the 2-1 ruling issued Wednesday by a panel of the St. Louis-based U.S. Court of Appeals for the 8th Circuit could allow schools to punish many things uttered or written off campus merely by asserting it violates an outside group's professional standards.

“It’s an end-run around student rights,” says Ari Cohn, an attorney at the Foundation for Individual Rights in Education, which submitted an amicus brief in favor of student Craig Keefe, who lost an initial 2014 District Court ruling before appealing.

“Students in professional programs could find themselves in an increasingly perilous situation where they have to refrain from saying anything that might offend or upset someone else or risk being thrown out of their program,” he says. “In this case, the standards were so vague that discipline could be meted out for any disfavored speech.”

The nursing program's handbook said students were "obligated to uphold and adhere to" the American Nurses Association Code of Ethics, which says nurses should pursue "compassionate and caring relationships with colleagues and others," "a commitment to the fair treatment of individuals" and maintain "boundaries that establish appropriate limits to relationships."

Facebook posts written by Keefe and reported to a teacher by two students mentioned using "whiskey for anger management" and "giv[ing] someone a hemopneumothorax," a medical condition involving blood and air in the chest cavity. The most contentious posts, excerpted in the majority opinion, said:



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.

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 3 management.

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...

One issue at the core of the case was whether Keefe was properly dropped from the program on grounds of committing an academic offense. The steps of a standard disciplinary process, by contrast, require informing the accused what they did and allowing them to prepare a defense.

Keefe was offered a chance to explain himself after classmates expressed concern to an instructor at Minnesota's Central Lakes College, the court record says. But he was not explicitly told what the informal meeting was about beforehand or allowed to review the Facebook posts held against him. He initially said the posts were jokes or the result of a hack, and his lack of remorse led to his removal from the nursing program for lack of professionalism.

Judge James Loken sided with the school in the majority opinion, writing “a university may violate the First Amendment if it invokes a curriculum-based code of ethics as a pretext to punish a student’s religious views and speech ... [but] Keefe made no allegation, and presented no evidence, that defendants’ reliance on the Nurses Association Code of Ethics was a pretext for viewpoint, or any other kind of discrimination.”

The Supreme Court ruled in 1978, Loken wrote, that “[p]ersonal hygiene and timeliness may be as important factors in a school’s determination of whether a student will make a good medical doctor as the student’s ability to take a case history or diagnose an illness," upholding an academic dismissal in Board of Curators of Univ. of Mo. v. Horowitz.

But dissenting Judge Jane Kelly fired back: “Keefe was dismissed as a result of a conflict with classmates on Facebook. Case law does not support classifying as 'academic' dismissals based on off-campus speech that merely happened to be about the school or its students.”

"Quite simply, Code requirements that nurses treat others with 'respect and compassion' and avoid 'any and all forms of prejudicial actions' or 'disregard for the effect of one’s actions on others' could easily be used to restrict protected speech," she wrote. "In addition, when a college applies a generalized Code of Conduct to speech after the fact, I question whether students like Keefe are provided sufficient notice of what the Code prohibited and what it allowed."

Kelly wrote that the Supreme Court "went out of its way" in Morse v. Frederick in 2007 to say that a "Bong Hits 4 Jesus" sign held by a high school student on sidewalk near campus, which administrators punished with a suspension, "would have been protected if it had been delivered outside of school." The judge also pointed favorably to a pair of 2011 decisions from the 3rd Circuit in favor of middle and high school students who had been punished for creating MySpace profiles in their free time to portray school principals as being a sex addicted pedophile in one case and a pot-smoking "steroid freak" in the other.

Kelly added that in the Horowitz case, the expulsion of a medical student was "based on the fact that faculty had for two years expressed dissatisfaction with [the student's] clinical performance. In contrast, [the Minnesota school's director of nursing] reported that she was unaware of any prior professionalism problems involving Keefe.“

The Minnesota attorney general’s office, which represented the school officials, referred questions to the state college system.

Dr. Hara Charlier, president of Central Lakes College, said in a statement that the school is "committed to instilling in our students the professional standards that they must meet in their careers" and that "we are very pleased to have prevailed in this decision.”

Keefe's attorney, Jordan Kushner, however, says "student rights both for free speech and due process is an evolving area and this decision was a step backwards."

Kushner says he was not immediately able to reach his client to discuss a possible appeal. He says Keefe, who had been a licensed practical nurse seeking to become a registered nurse, "basically had to give up on the medical profession" as a result of the school's decision.

"This is a case with real, substantial constitutional issues that has a chance of being heard further," Kushner says.

Cohn, meanwhile, warns the holding if not overturned en banc by the appeals court or the Supreme Court, could allow for an unknown variety of problematic cases, perhaps ensnaring journalism undergraduates, would-be teachers and others whose future professional fields have lofty and vague standards an administrator could cite.