It is now recognized as illegal in the state of Kansas to summarily expel a college student just for posting a photo of herself on Facebook next to a placenta. This undoubtedly will come as a relief to … well, let’s face it, nobody’s ever done this before and nobody ever will. But still. When you get a victory for student rights, you can’t look a gift … y’know what, never mind.
Look, there really is a larger issue here, but what got you reading this far was “Facebook placenta photo,” so let’s get right to it. Go ahead and look. We’ll wait right here.
Once your retinas readjust, try to focus on this. Last fall, Doyle Byrnes, a 22-year-old Johnson County Community College nursing student taking a class at a suburban Kansas City hospital, posed for a photograph, smiling Vanna-White-meets-Hannibal-Lecter style, standing next to a lab-specimen placenta. She immediately recognized the photo as icky and disturbing and hit the “delete” key.
No, ha ha, really, that’s what people would’ve done back in the olden days before, like, 2007. But of course that’s not what happened here. Instead, the photo ended up where people always keep their embarrassing, distasteful and career-threatening photos, Facebook.
JCCC’s director of nursing — a woman on whom a good placenta joke clearly is lost — was unamused. She summoned all four students involved in the display and, despite their sincere apologies, expelled them from the nursing program on the spot.
Byrnes filed suit in U.S. District Court, arguing that the expulsion violated her constitutional rights. On Jan. 7, the court agreed and ordered her reinstated.
The court got the law right, and to understand why requires understanding some history.
During the most troubled days of civil-rights strife across the South, courageous judges on the Louisiana-based Fifth Circuit U.S. Court of Appeals braved significant personal risk in issuing a sequence of rulings protecting the rights of demonstrators. Among the most important was Dixon v. Alabama State Board of Education, a 1961 ruling that grew out of a series of peaceful demonstrations by students from Alabama State University.
Seeking to integrate public eateries in Montgomery, Alabama State students staged a series of sit-in protests. The president of the college warned that the demonstrations were disrupting the orderly operation of the campus. When the students persisted, the State Board of Education expelled six of them, including St. John Dixon, who became the lead plaintiff in a federal civil-rights suit challenging the expulsions.
(Undoubtedly, when Dixon locked arms with his classmates at the lunch counter in the basement of the Montgomery County Courthouse, he was thinking: “Someday, the civil rights for which my brothers and I risk our lives today will protect the inalienable right to share placenta jokes on Facebook. As soon as somebody invents that.”)
In the Dixon case, the Fifth Circuit found that — even though attendance at college is not a constitutionally guaranteed right — the Due Process Clause guarantees students some basic procedural safeguards before they may be removed. When the harm to the individual is as serious as the loss of college enrollment, the court indicated, due process requires the college to provide relatively elaborate pre-expulsion procedures. This includes notice of the specific disciplinary charges, a list of the supporting facts and witnesses, and the opportunity to present a full defense.
Burns received none of these formalities before being run out of JCCC. Although she eventually was afforded an appeal hearing, by then she had already missed a round of exams. Even if fully vindicated, she would have suffered at least a semester-long detour in her education, which is why courts emphasize the importance of giving fair warning before an irrevocable decision is made.
Those who believe their right to free expression has been infringed by a state institution should be mindful that the Due Process Clause, rather than the First Amendment, often provides the strongest basis for relief. Even where a school’s disciplinary action may withstand a First Amendment challenge, the action can be voided if the student received inadequate notice and opportunity to be heard. A more detailed discussion of how to successfully bring a due process challenge appears here.