THE BLOG
01/15/2015 02:35 pm ET Updated Mar 17, 2015

Vague Professional Codes Threaten Student Speech Rights

As 2015 arrives, students nationwide should beware a new threat to the First Amendment on campus: the use of vague, broad "professional codes" to punish student speech. A pair of First Amendment challenges brought by students punished for violating professional standards are currently before federal appellate courts, with important decisions expected in the new year.

Keefe v. Adams, a Minnesota case now before the United States Court of Appeals for the Eighth Circuit, provides a clear example of this threat to free speech.

Irritated with his peers and his school, a nursing student at Central Lakes College took to his Facebook page to voice his frustrations. He joked about needing whiskey to control his anger after a fellow student introduced last-minute changes to a group project, and complained about others receiving special accommodations for tests. He even griped about overuse of an electric pencil sharpener, sarcastically asking if his peers had ever "heard of mechanical pencils" and suggesting he would "give someone a hemopneumothorax" with the sharpener before long. Shortly afterwards, the student was expelled from the nursing program. Administrators told him that his Facebook posts constituted "behavior unbecoming of the profession and transgression of professional boundaries."

But students enrolled in professional courses of study at public institutions possess full First Amendment rights. Just because students aim to become nurses, doctors, teachers or lawyers doesn't mean they've waived their free speech rights on or off campus.

Impossibly broad, hopelessly vague prohibitions like this violate the First Amendment. How can students be sure exactly what speech does and does not "transgress" a college administrator's understanding of "professional boundaries?" Nurses and lawyers gripe about colleagues on Facebook, just like everyone else. And even setting aside the unfairness of holding a student still learning his or her trade to a standard meant for practicing professionals, policing poorly-defined "professional boundaries" means that protected speech -- like jokes made far outside of the classroom, frank conversations about a professor or peer, or complaints about a professional practice -- become off-limits.

Worse still, empowering college administrators to punish students for speech that runs afoul of vague rules all but guarantees viewpoint-based censorship. An elastic ban on "behavior unbecoming of the profession" may be invoked all too easily by an administrator to punish speech that he or she simply dislikes, First Amendment be damned. Today, sarcastic Facebook jokes about whiskey or pencil sharpeners are grounds for expulsion; tomorrow, publicly criticizing the nursing program or health care reform might be.

Faced with this uncertainty, self-censorship becomes rational: What student wants to risk her education and career by testing an administrator's subjective sense of professional decorum? The resulting chill on protected speech violates the First Amendment and is unacceptable at our public universities, institutions designed to serve as true marketplaces of ideas.

Enforcing administrators' interpretations of vague professional standards means that students with dissenting, radical, or just plain unpopular viewpoints may be unfairly denied entry to their chosen profession. For example, the student in the other case addressing this issue -- Oyama v. University of Hawaii, currently before the United States Court of Appeals for the Ninth Circuit -- was effectively dismissed from his teaching program after the university claimed that his personal views on students with disabilities and age of consent laws were "not in alignment" with professional teaching standards.

But professions benefit from an influx of new thinking into their ranks. Ideas that were once "not in alignment" within certain professions may over time become prevailing wisdom. As the Foundation for Individual Rights in Education (FIRE, where I work) and the Student Press Law Center pointed out in a friend-of-the-court brief filed with the Ninth Circuit, before 1974, psychiatrists believed that homosexuality was a mental illness -- so "professors might have thought that a student who thought that homosexuality is normal showed a lack of good medical judgment." Instead of allowing administrators to punish students for speech out-of-step with contemporary professional beliefs, professors and peers should challenge each other and let the best ideas win.

The stakes for student speech in Keefe and Oyama are high. Like FIRE and other free speech watchdogs, students nationwide should hope that the First Amendment isn't expelled from professional programs at our public universities.