Kimberly Diel, a University of Tennessee pharmacy student, recently filed a first amendment lawsuit against the school, alleging the university expelled her because she posted on her private, personal social accounts the school deemed too sexual. The pharmacy school complained that this was “unprofessional.”
It is all too common that professional schools or special programs claim a greater right to oversee students’ private life and private speech than the universities in which they are embedded— which already claim substantial rights to do so. This is always in the name of “professionalism” and other difficult to define would-be codes of decorum.
Diel says university officials used extremely vague and subjective standards throughout the ordeal. She believes this will compromise normal, everyday online discussions. And it has certainly put her doctoral studies at risk. She argues the university’s actions violated the First and Fourteenth Amendments of the United States Constitution.
Diel took reasonable measures to conceal her identity online, using an alias on Instagram and Twitter. Nothing identified her as a student of the University of Tennessee’s pharmacy school. However, Diel claims that she was twice scolded by the school for her posts on social media, which was apparently following her online.
The second time she was reprimanded, the school’s professional conduct committee took issue with a post in which she quoted the Cardi B song “WAP.” She was expelled, but she got the expulsion reversed upon appeal.
Diel’s attorney claims the university “proactively tried to find her and apparently were monitoring her social media for over a year.” Because the University of Tennessee is a state institution, subject to both the Tennessee State Constitution and the federal Constitution, Diel claims her freedom of speech and expression is protected, and that the school’s actions violate that freedom.
Diel’s social media posts occasionally express views about sexuality and use profanity. When the university twice brought up Diel under “professionalism codes,” the committee never provided her with information about what those codes were. Diel still does not know which specific policies she violated, or what the university’s standards are regarding sexual, crude or vulgar activity on social media for doctoral students.
Despite having successfully appealed her expulsion, Diel fears the committee will eventually launch another investigation to pry into how she portrays herself on social media.
The larger implications are also concerning with this case. If a university may expel or otherwise discipline a student for offensive speech in their private lives, but is unwilling or unable to provide any standards for what it deems offensive or what its “professionalism codes” include, then the university can potentially apply such nebulous standards however it sees fit. The sky is the limit. “Professionalism” could then be used to repress certain types of speech or viewpoints or even pursue people on the basis of their identity. It may be no accident that Ms. Diel, was an outspoken black woman in her online presence, became the target of the University’s obsessive monitoring.
This case is worth watching. In 2019 the 10th Circuit Court of Appeals ruled against a medical student whose chief sin was to exclaim online, “The Republican Party sucks” but, an equal opportunity offender, he also declared supporters of President Obama to be “WORSE than the Germans during WW2.”
His medical school found these statements to be “unprofessional” conduct. “Professionalism” and “unprofessionalism” has the potential to become an increasingly broad exception to free speech on campus, which allows universities to sanction private speech that is neither “harassment” nor a “true threat” or other exceptions to the First Amendment.
Ms. Diel’s case is also interesting because she did not intend to publish her statements under her own name, and she did so anonymously without any overt connection to the University of Tennessee or its pharmaceutical program.
The court will have to decide what a university can and cannot do with regard to enforcing speech and monitoring its students’ private lives, both of in person and on campuses as well as virtual and online.