The University of Tennessee Nearly Expelled a Student for Racy Tweets, Now Agrees To Pay Her $250,000
The settlement vindicates Kimberly Diei's First Amendment right to comment on sexually explicit rap songs without suffering government retaliation.
In 2020, Kimberly Diei, a pharmacy student at the University of Tennessee, tweeted about Cardi B's sexually explicit song "WAP" under the handle KimmyKasi. Diei did not spell out "wet-ass pussy," but she did propose some additional lyrics in a post that tagged Cardi B and Megan Thee Stallion (who collaborated on the song), adding, "Let me be on the remix please." In another post, Diei alluded to the Beyoncé song "Partition," joking about spending "all this time getting my hair done just for your man to fuck it up." In a third post, Diei wrote, "I'm bout to write a book about the birds and bees entitled 'it started with a dick suck'" because the "truth is that's how most of us got here."
Although Diei wrote those posts under a pseudonym and did not mention any connection to the university or its College of Pharmacy, her racy online speech prompted two administrative investigations and nearly resulted in her expulsion. With help from the Foundation for Individual Rights and Expression (FIRE), Diei sued the university in federal court, arguing that the First Amendment bars state-operated schools from investigating or punishing students based on off-campus, constitutionally protected speech unrelated to their academic activities. Last September, a federal appeals court agreed, and last week Diei reached a $250,000 settlement with the university that FIRE announced today.
"UT's pharmacy school learned an important lesson today," said FIRE attorney Greg H. Greubel. "There is nothing unprofessional about students expressing love of hip-hop and their sexuality on social media. Kim has proven something FIRE has said for 25 years: The First Amendment robustly protects students' rights to have a voice outside of school, even if college administrators don't like what they have to say."
Diei was just one month into her studies when the pharmacy college's Professional Conduct Committee informed her that it had received a complaint about her social media activity. The committee unanimously concluded that her "sexual," "crude," and "vulgar" speech violated the college's standards of professionalism. Although the committee decided not to expel Diei, it received another complaint the next school year, which prompted it to conclude that her online commentary constituted "a serious breach of the norms and expectations of the profession." This time, the committee voted unanimously to dismiss Diei from the pharmacy school, a decision that was ultimately overruled by the college's dean.
In a February 2021 lawsuit, FIRE argued that "the College of Pharmacy's professionalism policies are unconstitutional on their face" because they give the Professional Conduct Committee and its chair "complete discretion" to "punish a broad range of protected speech," including "off-campus, personal speech," for "no legitimate pedagogical reason." Those policies, FIRE said, were also unconstitutionally vague because they provided "no basis for clear and consistent application," inviting viewpoint-based discrimination. Diei also challenged the policies as applied to her and argued that her treatment was a form of unconstitutional retaliation for speech protected by the First Amendment.
After a federal judge dismissed Diei's lawsuit, she asked the U.S. Court of Appeals for the 6th Circuit to review that decision. In its ruling last September, a three-judge panel unanimously concluded that "Diei's speech, as alleged, was clearly protected by the First Amendment."
The 6th Circuit noted the Supreme Court's June 2021 decision in Mahanoy Area School District v. B.L., which held that a Pennsylvania public school violated the First Amendment when it suspended a 14-year-old girl, Brandi Levy, from the cheerleading team for a year because of her profane Snapchat complaint about not being picked for the varsity squad. In a message that was visible for just 24 hours to 250 of her friends, Levy had posted a picture of herself with her middle finger raised, accompanied by the caption, "Fuck school fuck softball fuck cheer fuck everything."
By an 8–1 vote, the Supreme Court ruled in the cheerleader's favor. While public schools may sometimes have a legitimate interest in regulating students' off-campus speech, Justice Stephen Breyer said in the majority opinion, the school in this case had failed to cite any academic disruption sufficient to justify the penalty it imposed.
Accepting Diei's allegations as accurate for purposes of the appeal, the 6th Circuit saw her situation as similar. Because Diei "disclaim[ed] receipt or knowledge of the professionalism policy under which [she] was purportedly disciplined," the appeals court said, "we cannot, at this stage, credit the College's claimed pedagogical purposes." Although "her speech may have disrupted the College in ways not apparent from the complaint," the opinion said, that had not been established by the record at that point.
"This ruling confirms what I've known all along," Diei said after the 6th Circuit revived her lawsuit. "I have a right to express myself in my private life that's separate from school, and so do my classmates. I enrolled in pharmacy school to learn, not to have my taste in music and my thoughts on culture policed."
The 6th Circuit's decision impelled the university to reach the settlement announced today. Although Diei told The New York Times she "never had a strong interest in politics," her experience awakened her to the perils of censorship. "I wasn't about to let my university get away with silencing me or any other student for speaking our truth," Diei, now a pharmacist at a Walgreens in Memphis, said in a FIRE press release. "Staying positive while fighting for my rights for years wasn't easy, but it was necessary. We all need to speak up when someone tries to take our rights away—our voice is way too powerful to let anyone shut it down."
