Free Speech

Tennessee Pharmacy School Nearly Expelled Student for Twitter Sex Talk

The Foundation for Individual Rights in Education is suing on her behalf.

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From the Complaint in Diei v. Boyd, filed Wednesday by the Foundation for Individual Rights in Education:

[1.] Kimberly Diei brings this First Amendment lawsuit because her public university is violating her constitutional rights by policing her personal, off-campus expression on social media. Diei was nearly expelled from the University of Tennessee Health Science Center College of Pharmacy after university officials twice investigated her personal social media activity, concluding some of her posts were too "crude," "vulgar," or "sexual." Because of the vague, subjective standards employed by university officials during this shocking ordeal, Diei fears that participating in everyday discussions online may again put her doctoral degree at risk. The First and Fourteenth Amendments do not allow this result.

[2.] A University of Chicago graduate now pursuing a Doctor of Pharmacy degree, Diei is an excellent student. Outside of school, Diei expresses herself on social media using the pseudonym "KimmyKasi." In particular, Diei enjoys commenting on topics of interest to her and other young, black social media users, occasionally using profanity and freely expressing her views about sexuality. None of her posts identify her as a College of Pharmacy student or indicate any affiliation with the University of Tennessee.

[3.] Through an anonymous complaint, the College of Pharmacy's Professional Conduct Committee … learned of Diei's social media activity in 2019. After an "investigation," the Committee punished Diei for allegedly violating "various professionalism codes." A year later, the Committee again investigated Diei's social media activity. In four days, the Committee contacted Diei about her social media, "investigated" her social media, and unanimously voted to expel her for posting "sexual," "crude," and "vulgar" content that again allegedly violated "various professionalism codes."

Despite punishing Diei twice under these "various professionalism codes," the Committee never provided them to Diei. To this day, Diei does not know what policy she violated or what expression the College of Pharmacy considers too "sexual," "crude," or "vulgar" for its doctoral students' social media activity. Although Diei successfully appealed her expulsion, Diei fears that it is simply a matter of time before the Committee begins another investigation into her protected expression on social media.

[4.] The College of Pharmacy cannot police and punish the protected expression of students like Kimberly Diei simply because officials do not like or understand it. Papish v. Bd. of Curators of Univ. of Mo., 410 U.S. 667, 670 (1973) ("[T]he mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of 'conventions of decency.'"). "[S]tate colleges and universities are not enclaves immune from the sweep of the First Amendment." Healy v. James, 408 U.S. 169, 180 (1972). Accordingly, public institutions cannot investigate or discipline—let alone expel—students for speech protected by the First Amendment. See Speech First, Inc. v. Schlissel, 939 F.3d 756, 765–66 (6th Cir. 2019). But that is exactly what the University of Tennessee Health Science Center College of Pharmacy tried to do…

[60.] For example, in the following tweet, Diei contributed to a trending discussion on Twitter about the song "WAP" by Cardi B featuring Megan Thee Stallion by suggesting lyrics for a possible remix:

[62.] In another tweet, Diei defended the lyrics of "WAP" against criticism from other users—who were arguing that those lyrics were inappropriate—by pointing out that humans are inherently sexual beings:

[63.] And in another tweet, Diei joked about the amount of time she spends getting prepared to go out for the evening by referencing the popular song "Partition" by Beyoncé:

FIRE is clearly right here. Indeed, Diei's speech would be protected against expulsion or other university discipline even if it were said on campus, or with an indication that Diei was a University of Tennessee pharmacy student. The right to speak includes the right to speak about sex, without euphemism and circumlocution; the law still recognizes a narrow obscenity exception, but none of this would qualify. (Such speech could be excluded, alongside a good deal of other speech, from faculty- or administration-curated discussions or publications, for instance class conversations or alumni magazines, but that's a separate matter.)

Here's my casebook's excerpt from Papish, the 1973 precedent that FIRE cites:

Petitioner [Barbara Papish], a graduate student in the University of Missouri School of Journalism, was expelled for distributing on campus a newspaper "containing forms of indecent speech" in violation of a bylaw of the Board of Curators…. The particular newspaper issue in question was found to be unacceptable for two reasons. First, on the front cover the publishers had reproduced a political cartoon previously printed in another newspaper depicting policemen raping the Statue of Liberty and the Goddess of Justice. The caption under the cartoon read: "… With Liberty and Justice for All." Secondly, the issue contained an article entitled "M_____f_____ Acquitted," which discussed the trial and acquittal on an assault charge of a New York City youth who was a member of an organization known as "Up Against the Wall, M_____f_____."

Healy v. James (1972) makes it clear that the mere dissemination of ideas—no matter how offensive to good taste—on a state university campus may not be shut off in the name alone of "conventions of decency." Other recent precedents of this Court make it equally clear that neither the political cartoon nor the headline story involved in this case can be labeled as constitutionally obscene or otherwise unprotected…. [Nor can] the University's action here … be viewed as an exercise of its legitimate authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination…. [P]etitioner was expelled because of the disapproved content of the newspaper rather than the time, place, or manner of its distribution.

Since the First Amendment leaves no room for the operation of a dual standard in the academic community with respect to the content of speech, and because the state University's action here cannot be justified as a nondiscriminatory application of reasonable rules governing conduct, [the expulsion] below must be reversed.

Justice Rehnquist, joined by Chief Justice Burger and Justice Blackmun join, dissented:

[That] petitioner could not be criminally prosecuted by the Missouri state courts for the conduct in question … [does not mean that] she may not therefore be expelled from the University of Missouri for the same conduct. A state university is an establishment for the purpose of educating the State's young people, supported by the tax revenues of the State's citizens. The notion that the officials lawfully charged with the governance of the university have so little control over the environment for which they are responsible that they may not prevent the public distribution of a newspaper on campus which contained the language described in the Court's opinion is quite unacceptable to me.

But that view was rejected by the majority.

As you might gather, the word expurgated in the opinion, though not by the dissenting opinion in the Court of Appeals, was "motherfucker." It seems likely that the decision to expurgate stemmed from the preference of the author of the per curiam, who was later revealed to be Justice Powell; compare Cohen v. California (1971), Hess v. Indiana (1973) (including Justice Rehnquist's dissent, likewise joined by Chief Justice Burger and Justice Blackman), and FCC v. Pacifica Foundation (1978), which fully spell out vulgarities.

UPDATE: For a similar case, involving discipline of a medical student for harsh criticism of abortion right supporters, see here. Unfortunately, that student's lawsuit was dismissed on qualified immunity grounds, and the Tenth Circuit affirmed the dismissal (wrongly, I think). The Diei lawsuit I'm discussing here, though, also seeks declaratory relief and an injunction, and the qualified immunity defense won't apply to that.

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  1. I hope she can count the number of pills correctly. When are pharmacists going to be automated with computers to cross reference prescriptions and identify potential medical issues?

    1. Oh, about 20 years ago – – – – – – – – – –

    2. What I didn’t realize until I checked was that while you used to be able to be licensed as a pharmicist with a BS degree in it, the profession has now done what the legal profession did and requires a “Doctorate” — a graduate PharmD degree from a program accredited by the Accreditation Council for Pharmacy Education.

      OTOH, pharmacists in some states can (a) prescribe certain prescription drugs (e.g. “morning after” pill) and give vaccination shots. And, at least in theory, the pharmacist is supposed to discuss each new prescription with the patient — I always ask them to, and some (not all) actually know quite a bit.

      1. “the profession has now done what the legal profession did and requires a “Doctorate” — a graduate PharmD degree from a program accredited by the Accreditation Council for Pharmacy Education.”

        So pharmacists can call themselves doctors? What can go wrong?

        1. Lawyers can too.

          Some in academia do — and not always ones that actually passed the bar exam. I’m thinking of three different student affairs administrators…

        2. The can, but they don’t. My daughter is a PharmD and works in a hospital, the only people who call themselves Doctor there are medical doctors, not Ed.D’s, or PharmD’s.

          1. If a Psychologist with an Ed D can call himself a “Doctor”, then I — also with an Ed D — will do likewise.

            What scares me is what the “Nurse Practitioners” are being allowed to do — without supervision and without ever having gone to medical school.

            1. A hospital orderly with a phd in English, etc.

  2. Eugene,
    While you’re certainly correct if you limit yourself to Supreme Court case law involving colleges, you also know that message hasn’t gotten down to the lower courts. They continue to import Tinker and Hazelwood into higher education, or nonsense like professional credentialing. We still have Hunt v University of New Mexico (posting political comments on Facebook) and Keefe v. Adams (complaining about lab partners on Facebook). I hope Diei crushes them, but let’s not be pollyannaish about it.

    1. True — some lower courts have been bad on this, though others have been quite good.

        1. Blah, blah, blah.

          1. Best defense of the Volokh Conspiracy’s hypocrisy I have seen yet.

      1. It’s not even that as much as the student affairs fascists know that only 1%-2% of the students whose rights they violate will actually be able to (a) get an attorney and then (b) mount a legal challenge — and that can be mooted by simply admitting that they were wrong (in this instance) and then getting the student for something else six months later.

        This is something that FIRE simply doesn’t understand — when you have college regulations so broadly written that every student violates at least a dozen of them on a daily basis, it isn’t hard to “get” the student for something else later….

        Absent someone like Betsy DeVos successfully instituting some of the due process safeguards that she was attempting — or parents learning just what fascist gulags colleges have become — I don’t see this ending soon. Not before higher education implodes, and this might help accelerate that.

        1. Why do you defend the college rapists who prey on vulnerable women of color, like sexual assault survivor AOC?

          1. I don’t know if you are being facetious or not Rabbi, but the true untold scandal in the the Campus Kangaroo Korts is the disproportionate percentage of Black males accused of sexual misconduct.

            It’s not a majority of the cases, but then they aren’t a majority of the males on campus, either. (Nationwide, there are over 2 black female students for each black male student — hence the number of Black men on campus is roughly a *third* of the total and not half.)

            And unlike real courts, all records are sealed and hence no statistics are kept. But it is being quietly noticed that there are an awful lot of Black faces amongst the cadre of accused students.

            Why BLM is not making an issue about this is beyond me — actually, it isn’t because BLM is largely run and controlled by White women. Feminists of the “believe her” mentality who won’t let themselves be confused by the facts.

        2. There are things that could help. First and foremost, if SCOTUS affirms in BL v Mahanoy, it would crush a decent amount of this nonsense overnight. Keeping school administrators’ grubby fingers off of student speech online and off campus would not only resolve Ms. Diei’s case, but it would also stop hundreds of other cases of university overreach. I’m not optimistic that Mahanoy is affirmed on the Third Circuit’s analysis, but such a bright line rule would make qualified immunity much easier to overcome and schools would be facing monetary liability routinely.

          1. Yes, but again, BL v. Mahanoy involves minors.

            If I, as a teacher in that school, saw that post, I’d at least have a chat with someone in the Guidance Department about it.

            Maybe it’s a joke, maybe it isn’t — and if it isn’t, then there likely is something you very much need to find out about because you are responsible for that girl — who is a minor. I know of one case where the (female) girl’s basketball coach was making her players walk barefoot through chicken manure in her barn.

            Memory is that Jerry Sandusky, the UPenn Football Perp, was caught by a high school teacher who noticed things that didn’t quite look right in the weight room and asked questions that led to the first victim, with everything cascading from there.

            Same thing if I saw a picture of a student with a gun — I’d have to ask a few questions because you can’t ignore stuff, but that doesn’t mean crucify the kid.

            You are supposed to be the adult, after all — and perhaps exhibit a scintilla of adult judgment.

            1. Because the names are often withheld it is hard to get a handle on this.

              At LSU there is an ongoing investigation of the athletic department’s handling of some alleged sexual misconduct, some involving current big name athletes and going back years. So far as I can tell every male athlete accused is black and every accuser who has come forward is white.

  3. Can this also be a lesson to aspiring professionals?

    Or is that white-splaining?

    1. A lesson that people in authority will violate your constitutional rights? And that if you want to protect those rights, you have to fight for them rather than just taking the course of least resistance?

      1. Yes?

        Do we really think that is what she intended to sign up for when posting on social media? To be a test case? Or did she just want to graduate and get a job?

        1. What difference does that make. The university clearly violated her privacy because some asshole student was vicious.

          1. Girls fight over boys, too….

          2. Right. I think probably this thought might have been more the targeted offense than the profanity: “Spent all this time getting my hair done just for your man to fuck it up”.

      2. “A lesson that people in authority will violate your constitutional rights? And that if you want to protect those rights, you have to fight for them rather than just taking the course of least resistance?”

        Respectfully, most students don’t have the ability to…

        This woman is an exceptional student — a U-C graduate and concurrently pursuing a certificate in nuclear medicine, not to mention being both Black and female — this isn’t “Bubba” who graduated from Tennessee State and drives a 21-year-old pickup truck leaking everything except brake fluid.

        Reality is that there is a lot of work involved in suing a university — it’s an arcane industry that even judges prefer to defer to, and that’s combined with there not being a lot of money in these suits. In most states, the 11th Amendment and the State Tort Claims Act precludes the possibility of a large jury award — in MA they are limited to $100K. And the administrators know this as well, they aren’t that fearful of a lawsuit because they start knowing their maximum liability — and negotiate from that perspective.

        And lawyers tend to be both lazy and greedy — or more charitably stated, tend to make a cost/benefit assessment on which cases they will chose to accept. It also doesn’t help that the students are often not sympathetic victims — but for her academics, Diei wouldn’t be — not in front of a Tennessee jury where language such as hers would very much be frowned upon, particularly by the middle-aged Black women who literally have a picture of Jesus on every wall of their house. (Seriously.)

        The slip & fall or auto accident or (some) medical malpractice suits often get settled without the lawyer ever even having to actually file a suit — the attorney gets the contingency fee and goes on to the next case. By contrast these cases are complicated and even if a student has a $20,000 retainer (which most won’t), it still is a complicated headache that a lawyer with bills to pay will avoid — in favor of the aforementioned low hanging fruit.

    2. Yes. The lesson is to not show your face and be better at anonymizing yourself.

      1. Or not going to college at all.

        There are only two reasons why students go to increasingly expensive colleges — the social experience and getting a good job upon graduation.

        The latter is largely gone — the generic college degree isn’t the credential that it was in the 1970’s, while a jaw-dropping percentage of college graduates are employed in jobs that don’t require a college education. Before the Trump Recovery, parents and students were seriously questioning the value of a degree.

        And while earlier generations of students once looked to college as an escape of the regulations of their parents, students today often find that they had far more freedom in high school than in college, and also have to now deal with a roommate.

        I think that the shakeout of the Wuhan Covid pandemic will be a lot fewer students going to college. (That’s already happening.)

  4. As long as she promises never to vote anything but democrat, she should be allowed to reman; otherwise, out she goes!

    1. Must be really hard to walk around with that massive chip on your shoulder.

  5. Seems like the girl is obviously correct here, and the University is obviously wrong.

    It appears that the University system who is violating Kimberly Diei’s civil rights is the same one that violated Mimi Grove’s civil rights.

    1. Did Mimi Grove get any redress or is she just screwed?

  6. At least we probably won’t have to worry she’ll be one of those pharmacists with scruples about filling a birth-control presciption.

  7. Oh, and…

    This (((white, male))) blog has gone 0 days without using foul and obscene language referring to sexual matters.

  8. Golden Age of First Amendment!

    The Founders would be proud.

    1. In the context of the Volokh Conspiracy, Artie Ray would be silent.

      Censored.

      Banned.

      Viewpoint-driven censorship seems to be a selective taste among conservatives.

      1. More crappola from the troll

      2. Section 230, Artie.

    2. I don’t know about the Founders, but, according to Wikipedia, Robert Bork would’ve been fine with this:

      Bork held that the Constitution only protected speech that was “explicitly political”, and that there were no free speech protections for “…that variety of expression we call obscene or pornographic.”

      Her speech may not have been “obscene or pornographic,” but it certainly wasn’t “explicitly political.”
      I am not sure I disagree with Judge Bork.

      1. “Her speech may not have been “obscene or pornographic,” but it
        certainly wasn’t “explicitly political.” I am not sure I disagree with Judge Bork.”

        Looks to me like she’s advocating a sex-positive view of female sexuality.

      2. The problem in practice is that if this gets upheld, it’s going to get invoked to justify censoring people with a more “conservative” (i. e. non-insane) view of sexuality.

        I’m not talking about how the Constitution *ought* to apply, but how it actually *will* apply – in a culture where affirming two biological sexes and the man/woman definition of marriage is *way* more controversial than what this student said, if you can censor the latter then you’re paving the way for censoring the former.

        1. The left needs no “paving” to censor “affirming two biological sexes”. They already do it.

          They just get twitter and youtube and facebook and Random House to “de-platform” you and sick the mob on your employer. No FIRE can seek redress for you then, its all “private companies”.

          This student should start her own pharmacy school.

        2. Cal Cetín : “The problem in practice is that if this gets upheld, it’s going to get invoked to justify censoring people with a more “conservative” (i. e. non-insane) view of sexuality….. affirming two biological sexes and the man/woman definition of marriage is *way* more controversial than what this student said”

          Two Points :

          1. I don’t see anything “insane” in Ms Diei’s sexuality. Exuberant to be sure, but nothing wrong with that.

          2. I’ve yet to see any lefty not “affirm” the two sexes or man/women marriages. In fact the libs I know happily & joyfully affirm all the man-women marriages that come their way – with parties (bachelor & bachelorette), ceremonies, gifts, congratulations, hearty good cheer & warm fellowship.

          Nope; affirmation doesn’t seem to be a liberal problem. I’d say the issue is more conservative disaffirmation, despite all your snowflake victimhood whining. But – hey – nothing a little hearty good cheer & warm fellowship can’t cure!

          You and Bob should work on’t.

          1. As the Party of Tolerance we affirm “hearty good cheer & warm fellowship”…and we thank God that we are not like unto those who practice “snowflake victimhood whining”! In fact, we progressives have been so active in promoting good cheer and warm fellowship that the phrase “cheerful as a progressive” has basically passed into a proverb.

            And just because this is a legal blog doesn’t mean you can (cheerfully to be sure) feign ignorance of the meaning of the phrase “the man/woman definition of marriage,” or for that matter the meaning of the word “two.”

  9. Prof Volokh, there’s a much larger issue to this that I think you are missing — the inexorably increasing application of campus regulations to off-campus conduct.

    There once was a converse of _Tinker_ — the belief that the school’s authority ceased at the schoolhouse gate. In Loco Parentis had ended with the 26th Amendment, and they had neither authority nor desire to tell young adults what they could or couldn’t do off campus — or otherwise be responsible for them.

    The latter is a point often missed — In Loco Parentis was a legal duty which created liability for negligence.

    About 25 years ago, a new form of In Loco Parentis arrived — no longer a legal duty, it instead became an inexorably expanding grant of authority (but not responsibility) for the off-campus activities of students. The _Bong Hits for Jesus_ case is problematic because while Thomas wrote about this being an aspect of In Loco Parentis, no one is saying that these were unemancipated minors!

    And today, even a student at a public university waives his Constitutional rights when he/she/it enrolls.

    Remember the rather sophomoric (and offensive) Tiki Torch Parade in Charlottesville — not the riot the next day but the adult-sized children parading across the lawn with lit Tiki Torches? A lot of those guys were identified and expelled from their colleges and universities as a result. (A lot more were likely placed on the same sort of double secret probation that Diei was.)

    So we no longer are talking about just the loud party you may have attended off campus, but what you may have done in another time zone — or worldwide on the internet. And that’s what is being overlooked.

    It isn’t that Diei has the right to be crude and vulgar on campus (although I could* cite multiple examples of where white male students have gotten into trouble for that**) — the more important point is that this was (a) off campus, (b) under an assumed name, and (c) she made no reference to the school or her being a student there. But for someone “doxing” her, they never would have known about this.

    * But for FERPA.

    ** On one occasion I printed out a copy of _Cohen v. California_ and dropped it on the Dean’s lap, saying that “If the US Supreme Court, in it’s infinite wisdom, says that one has the right to put the word ‘fuck’ on the back of a jacket and wear it in public, this young man ought to have the right to use that word in what he thought was a private conversation amongst his friends while eating lunch.”

  10. One would think that the administrators who run our educational institutions would be required to know the basic laws governing their actions, but it’s becoming increasingly obvious that very few of these people (most of whom have some kind of doctorate) think that their “professional” conduct is governed by any laws at all. It’s just astonishing. It’s high time that the courts start imposing some stiff sanctions on their blatant violations of the constitutional rights of students and faculty members.

    1. Oh, it’s worse than that.

      There are actually seminars at professional conferences as to how to deal with (i.e. obfuscate) FIRE. There are well-paid attorneys who tell them how to violate civil rights and get away with it.

      Look at the conference schedule of ACPA or NASPA — e.g. https://www.myacpa.org/annual-conventions

      1. I did.

        Saw nothing like what you describe.

  11. Diei successfully appealed her expulsion

    Then this case is moot. She exercised her right to appeal an adverse decision and won. What else is she hoping to gain from this case?

    Diei fears that it is simply a matter of time before the Committee begins another investigation into her protected expression on social media

    Based on what? There is no evidence in the opinion for the basis of this belief. If I “fear” the Biden administration will violate my 2nd amendment rights I don’t have standing to sue.

    This case should have been dismissed on standing or mootness.

    1. Chilling effect?

    2. “She exercised her right to appeal an adverse decision and won. What else is she hoping to gain from this case?”

      Declaratory and injunctive relief. It’s at the end of the complaint.

  12. Well after all, and lucky for her, there is no “trashy ho” exception to the First Amendment.

    1. Thank God!

      1. More important in this context, there also are no exceptions for (1) hypocritical, partisan censors who operate White, male, right-wing blogs or (2) clingers who enjoy getting lathered by such blogs.

        This should make plenty of people happy.

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