PROFESSIONAL STANDARDS AND THE FIRST AMENDMENT IN HIGHER EDUCATION: WHEN INSTITUTIONAL ACADEMIC FREEDOM COLLIDES WITH STUDENT SPEECH RIGHTS

INTRODUCTION In 2016, a divided three-judge panel of the United States Court of Appeals for the Eighth Circuit upheld a student's expulsion from a public college's nursing program in Keefe v. Adams.1 In doing so, the majority rejected Craig Keefe's contention that Central Lakes College ("CLC")2 violated his First Amendment3 speech rights by punishing him for messages posted on Facebook while off campus.4 In rebuffing Keefe, the majority declared it lawful for the Minnesota college to enforce against him tenets of the American Nurses Association's ("ANA")5 Code of Ethics.6 This code provides, in key part, that a "nurse treats colleagues, employees, assistants, and students with respect and compassion. [...]most troubling from a pro-free speech perspective, the appellate court upheld the college student's expulsion using a test developed by the United States Supreme Court in Hazelwood School District v. Kuhlmeier.23 That case examined censorship of the on-campus speech of high school students occurring within the curriculum. Yet in both Oyama and Tatro, the appellate courts nonetheless upheld enforcement of professional standards and rejected First Amendment-based student speech claims.46 Specifically, the Ninth Circuit concluded that the University of Hawaii did not violate postbaccalaureate, education-certificate student Mark Oyama's speech rights when it denied his studentteacher application due largely to his comments about the appropriateness of sexual relationships between adults and children.47 Writing for a unanimous three-judge panel, Kim Wardlaw rejected Hazelwoodd.48 Instead, she reasoned Oyama's rights were not infringed because the University's "decision related directly to defined and established professional standards, was narrowly tailored to serve the University's core mission of evaluating Oyama's suitability for teaching, and reflected reasonable professional judgment. "49 Three years prior to Oyama, the Supreme Court of Minnesota in Tatro held that the University of Minnesota did not trample on the First Amendment rights of an undergraduate mortuary-science student when it disciplined her for several Facebook posts.50 As in Oyama, the Minnesota high court declined to adopt Hazelwooďs test.51 Instead, it held that "a university may regulate student speech on Facebook that violates established professional conduct standards,"52 provided the restrictions are "narrowly tailored and directly related to established professional conduct standard