Louisville student’s sarcastic delivery-room blog births a bad First Amendment outcome

Posting on social media about stuff you see at work is risky business. When you’re enrolled in college, it’s downright hazardous.

The University of Minnesota disciplined a mortuary science student who made flippant remarks on Facebook about the corpse she was assigned to dissect. A community college in Kansas tried to expel a nursing student who, for some reason, decided her Facebook page looked a little bare without a portrait of her next to somebody’s placenta.

And now, a federal appeals court has decided it’s legal for a state university to kick you out of nursing school for writing distastefully descriptive narratives on social media about the icky things you observe in the delivery room.

Former nursing student Nina Yoder’s case against the University of Louisville illustrates just how difficult it is for any student to prevail in a First Amendment claim against a state institution, because federal constitutional law has evolved to be highly protective of disciplinary judgment calls.

Yoder’s case has been around for quite some time. How long, you ask? So long, that she got in trouble for writing on MySpace.

The trouble started back in February 2009, when Yoder posted — in detail that will extinguish your interest in reading, eating or reproducing for quite some time — her observations about witnessing the miracle of childbirth. An excerpt:

At last my girl gave one big push, and immediately out came a wrinkly bluish creature, all Picasso-like and weird, ugly as hell, covered in god knows what, screeching and waving its tentacles in the air.

Upon seeing the blog, the dean of Louisville’s nursing school — accompanied by two police officers — presented Yoder with a letter of immediate “academic dismissal.” The letter declared that Yoder was in violation of the college’s Honor Code (which she’d signed as a precondition for enrolling in the clinical nursing course) because she disclosed confidential patient information. Litigation ensued.

On its first trip through the courts, a federal district judge allowed Yoder to re-enroll at Louisville, finding that — although the MySpace postings were “for the most part, crass and uncouth” — the Honor Code applied only to “professional” conduct while acting as a representative of the school.

But that order dealt only with interpretation of the contractual agreement Yoder signed, and did not address her constitutional claims. Which brings us to Round Two.

Although she’d been reinstated, Yoder still wanted a judgment (and the accompanying money damages and attorney fees) that Louisville violated her First Amendment right of free expression and her Fifth Amendment right of due process. She didn’t get it.

In a 3-0 ruling issued May 15, the Sixth Circuit U.S. Court of Appeals decided that Yoder had failed to demonstrate a violation of her constitutional rights blatant enough to entitle her to damages.

When suing the employees of a state agency over a civil-rights violation, a plaintiff must prove not only that her rights were violated, but that the culpable state employees were on notice at the time that they were “clearly” breaking the law. If no clear violation is proven, then “qualified immunity” applies, and there can be no money damages.

That burden has proven nearly insurmountable for students, because the courts have made such a botch job of the law of the First Amendment in schools. Judges who themselves have remarkable difficulty correctly applying the First Amendment in student-versus-school disputes are inclined to empathize with college administrators whose defense is, “I did the best I could.”

Outside of the school setting, what Yoder wrote on her MySpace page would unquestionably be constitutionally protected speech. While she said some crass and unkind things about the patients she encountered, the remarks (like those quoted above) were colorful hyperbole not meant to be taken seriously. No patient was named or described in enough detail to be widely identifiable.

To overcome Yoder’s First Amendment rights, Louisville had to demonstrate either (a) that her speech disrupted the orderly operations of the school (unlikely) or (b) that she had somehow contractually waived her First Amendment rights. The college prevailed on the latter theory.

Finding that a citizen has waived her First Amendment rights is serious business, and the validity of the “waiver” (by way of signing an Honor Code and subsequent patient confidentiality pledge) deserved a more thorough inquiry than it received in the court.

While it certainly is possible to waive certain rights in a freely bargained exchange, the exchange is no longer “free” — and the waiver no longer enforceable — if the bargain crosses the line into coercion.

Let’s say that a student, having sunk tens of thousands of dollars and three years of her life into a nursing degree, shows up for her clinical class and is told — on the spot, with no time to think — that she must sign a waiver or be removed from a class that is a mandatory prerequisite for graduation. If those were Yoder’s facts, then it’s at least possible that the “bargain” — sign this paper or waste three years of your life — was no bargain at all. The court should have inquired more deeply into the circumstances of the waiver before assuming its validity.

Probably the best that can be said for this quirky case (and let’s by the way stipulate that ridiculing the people you’re assigned to observe as a would-be health care provider is, regardless of its constitutional status, a pretty ill-advised career strategy) is that the Yoder ruling is “unpublished.” Meaning that a future college student in one of the Sixth Circuit states (Ohio, Michigan, Kentucky, Tennessee) — one hopes, a student with more sympathetic facts — will be free to re-litigate the same legal issues another day.

The case is Yoder v. University of Louisville, No. 12-5354.