Is It A First Amendment Violation To Kick A Student Out Of Nursing School For Blogging About A Patient?
from the questions,-questions dept
Michael Scott points us to an interesting lawsuit, in which a student who was expelled from nursing school after blogging about patients, is fighting to say that the expulsion violated her First Amendment rights and her due process rights. Of course, the First Amendment doesn't mean you get to say whatever you want, but I believe the key issue here is that she was attending the University of Louisville -- which is a state school, so there is some aspect of government action here. On the due process side, she claims that she was never given a fair hearing and never told what specific rules she violated. The district court had ruled in her favor, ordering the university to reinstate her, but did so by effectively ignoring her specific charges, and claiming instead that the woman had not violated the university's honor code or confidentiality agreement, so it was a simple contract dispute where she had not violated the contract.However, the university reasonably appealed, pointing out that the woman hadn't even argued that point, so it was wrong to decide the case on those grounds, and now an appeals court has agreed, sending the case back to the district court to consider the First Amendment issues. While I'm a big supporter of the First Amendment, I'm not sure I see how she has any significant claim here. The university did nothing to silence her speech, but merely said that if she wanted to say those things, she couldn't do it while a student in their school. The due process claim may have a bit more to it, in that the situation was handled poorly, and it appears the woman had no chance to defend herself or argue her side of the story. But, you would think that a university has the right to determine who to allow in and who to expel without it being a constitutional issue...
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Filed Under: expelled, first amendment, free speech, school
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what about the patient's privacy rights
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The patient should sue the blogger.
Furthermore, I'm rather shocked the university didn't use this law to justify its decision, because it's pretty damn powerful, regardless of 1st Amendment issues.
How would this girl feel if she were the target of blogs?
Oh, wait.
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Re: what about the patient's privacy rights
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Re: what about the patient's privacy rights
Of course, I would also have to look at the actual blog; Did she name the patient, or provide identifying info?
If she did, that's obviously more serious; If she didn't, that's still grounds for punishment.
Pretty simple. So it should be easily dealed with, right?
It seems like there's just been incompetence at every step of the case :/
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Still, it looks a lot like a ton of stupid just fell out and went legal.
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But there is a Constitutional issue
The university can't do that: the 1st Amendment isn't suspended because someone's a student somewhere.
And incidentally, HIPAA doesn't trump the 1st Amendment. Someone who discloses personally identified medical information may have to face consequences under HIPAA, but I see nothing in this report that says the university (or any other state or federal entity) is making a claim that HIPAA's in play here. And even if they were, then the proper action is to apply the HIPAA statute (legally) and the HIPAA policies of the university (administratively), both of which of course require due process, including the presentation of a complaint to the accused.
(I'm HIPAA-trained, by the way, so I don't take disclosure of private information lightly. But I don't see any here yet.)
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Isn't that the exact definition of silencing speech. Short of taking someone's life, all instances of silencing speech are really just where and how said speech is allowed (i.e. "You can say whatever you want, just not in this country... just not within X miles of this event, etc.)
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Yeah. And the ICE does nothing to detain Appelbaum, it's Appelbaum's decision to fly which causes his continual delays.
If they nurse wants to blog. She should stay home. If Appelbaum wants to be free from detainment, he should stay home. Problem solved.
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Re: what about the patient's privacy rights
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Re:
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Re: But there is a Constitutional issue
Ummm, what? How was the first amendment "suspended"? The university isn't required to accept anyone as a student. If you worked for this university and you went around telling people it was an awful place to get an education they could fire you.
The first amendment only guarantees that the government will not try to stop your speech, it doesn't protect you from the consequences of that speech.
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I think Mike hit his head
Uhm… Yeah they did. Think about your logic for a moment, if every entity in the country took that stance, that people can say anything they want, just so long as it’s not while they’re a student/employee, etc. of said entity, then that would open a can of worms where either everyone would be afraid to say anything at all, for fear of being removed, or we wouldn’t have anyone belonging to any entities whatsoever.
Let me give you an example, I work for a municipal government, currently run by party A of the two party system. I have a blog where I talk about my support of party B of that system, not saying anything at all bad about party A, just my support of party B. With your logic they could fire me for writing that blog, telling me I can say anything I want, just that I couldn’t do it while employed by them.
This is exactly what the 1st Amendment was designed to protect against. Of all places that someone should feel comfortable saying anything, a university is that place. The whole concept of higher education is the free sharing of ideas and knowledge, when universities start that stifling that sharing it undermines the entire educational process.
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Re: I think Mike hit his head
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Re: But there is a Constitutional issue
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Not quite the same...
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Re: Not quite the same...
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State action
Ummm, what? How was the first amendment "suspended"? The university isn't required to accept anyone as a student. If you worked for this university and
you went around telling people it was an awful place to get an education they could fire you.
The First Amendment protection is not limited to criminal punishment for speech. Even when the government acts as employer, educator or proprietor the free speech, exercise and establishment clause forbids certain government action.
The fact that a private employer may fire persons based on their speech does not mean that the government may condition participation in education or employment on refraining from otherwise protected speech.
So arguing that the First Amendment is not implicated as long as you can choose not to attend medical school is simply wrong as a matter of law.
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Re: But there is a Constitutional issue
"The university can't do that: the 1st Amendment isn't suspended because someone's a student somewhere."
The university can do that because it's the student's choice to attend the university, thus it is really just a time, place and manner restriction. (Well, if it ever reaches the Supreme Court, that will be what's in the decision authored by Justice Thomas, and joined by four others in a 5-4 decision).
The student can say whatever she wants, but there will be repercussions. Some MAY be for violating HIPPA, and some MAY be for violating school policy. (I can only gather that the restriction was for using social media).
But . . .
State school kicks you out without a hearing, thus depriving you of $$, which is property, can't do that without Due Process. But, it is well known that you must exhaust administrative remedies before resorting to a lawsuit. The student appealed the dismissal, which was denied, but did not take the next administrative step of filing an Academic Grievance (http://chronicle.com/article/Nursing-Student-Sues-After-U/42558/)
Interestingly, since the District Court found in her favor in 2009, the student, a Ms. Yoder, was able to back to school, has graduated, and is now a nurse.
What I learned here today:
If your nurse is Nina Yoder, exercise your patients' rights, and ask that she not be allowed any access to you or your information, lest your sordid medical history ends up in a Blog somewhere.
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Re: I think Mike hit his head
Personally, I afford more regard for talking about subjects in the order of:
1) Ideas
2) Events
3) People
Eleanor Roosevelt inspired me to think this way.
If you decided to talk about a fellow employee's life in detail, and while only talking objectively, you reveal more details about that person than they wish (and, which will allow others to identify them), I would take issue with that too.
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Re: I think Mike hit his head
The First Amendment is ONLY for the Government. I'm sorry to say that anyone anywhere can put a stop to you saying anything they don't like. ONLY the government can not do that.
For instance take any forum on the Internet, you cannot say anything you want, and the moderators/owners can delete anything they don't like, and even go so far as to kick you off the site if they choose....
I find it ironic that the very same forum owners/moderators scream and cry out about their 1st amendment rights all the while they are deleting and/or censoring anything they don't like in the area that the can control those very actions.
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Re:
The girl seems to not be able to listen in class since she ignored chapter 1 & 2 Ethics and privacy.
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Re: Re: Not quite the same...
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Re: Re: I think Mike hit his head
http://www.pageonekentucky.com/wp-content/uploads/2009/03/yoder1.pdf
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Re: The patient should sue the blogger.
Besides, the school can tell its students that they don't want you talking about pygmy hippo's, and if you do, we'll expel you. They can pretty much stipulate anything they want.
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Re: Re: Re: I think Mike hit his head
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The university did nothing to silence her speech, but merely said that if she wanted to say those things, she couldn't do it while a student in their school.
Whhhhaaaa reallly???
How about: "The IRS isn't silencing speech, but if you say that you have to pay higher taxes." Or: "You can say that if you want, but then you can't access welfare." The government and its entities punishing individuals for exercising first amendment rights, even if it doesn't directly block the speech, is still indirectly blocking it.
A point to remember: this is a state school, no? University is a platform for speech itself. Academic freedom anyone? I'm shocked that you would advocate for the right of state-sponsored schools to limit academic freedom and free speech by threat of expulsion.
Government schools don't get to selectively claim the status of private institutions when it suits them but claim public when they want more tax-payer money.
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Unconstitutional conditions
The university can do that because it's the student's choice to attend the university, thus it is really just a time, place and manner restriction. (Well,
if it ever reaches the Supreme Court, that will be what's in the decision authored by Justice Thomas, and joined by four others in a 5-4 decision).
You no nothing. Your reasoning that there is no First Amendment violation because attendance is voluntary is flatly wrong.
I can cite a ton of cases applying the First Amendment to universities where the attendance is voluntary and finding against the administration.
Someone wrote:
The nurse's right to free speech ends when it encroaches on the patient's right to confidentiality.
Maybe, but this is different from claiming that the First Amendment is inapplicable on the faulty assumption that attending school implicitly waives the right to speak out against the school.
Some here really don't understand how the First Amendment works. It's well settled caselaw that the government may not condition enjoyment of education, employment or benefits on waiver of First Amendment rights.
Justice Holmes once argued that the right to work as a police officer was different from the right to speak, thereby endorsing the view that once you work for the government you waive your free speech rights.
But that narrow notion of the First Amendment is no longer good law.
Government employees have less free speech rights than ordinary citizens, but that balancing approach has never been extended to adult students free speech rights.
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Re: I think Mike hit his head
Are you blogging confidential information?
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Re: Unconstitutional conditions
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Re: Re: I think Mike hit his head
And did you also read my follow up post where I put a link to a pdf that has the actual blogs in question in this case, where there is NO confidential information being disclosed at all?
This is not a case about leaking confidential information, this is a case about a university overstepping their bounds in trying to control what their students can or cannot say, confidentiality plays no part in it whatsoever.
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Re: Re: I think Mike hit his head
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Wild assumptions anyone?
Lets just ASSUME that she did something bad without any proof of misconduct whatsoever, and then discuss how bad what she did was without even knowing what she did.... Getting expelled from a university isn't proof of anything except the fact that the school has overzealous administrators quick to jump on the current political/party 'bandwagon'.
When I heard about a nurse blogging, I assumed that it would be talking about general procedures, daily tasks, first time performing various procedures, etc for her own records and potential review purposes (ie. Today I got to perform my first frontal lobotomy on a Senator, would you believe there really is nothing in there, even before performing the lobotomy. Now she's not saying which senator, and since they are all pretty much vacant up there, nothing that would be personally identifiable, until the senator saw the blog and posted a comment of course).
Lets just jump to conclusions and support whatever the current government agency is saying regardless of the facts... They are from the government, and they are here to help...
/sarcasm off
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Re: But there is a Constitutional issue
She made a mistake, she shouldn't have done it, she'll probably get another shot somewhere else and unless she's an imbecile she won't do it again.
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The decision doesn't tell us enough to judge either constitutional; argument
Mike, I think, would be sympathetic to some of those claims. For example, what about a high school that suspended a student for blogging about teachers or the principal? What about the post office firing an employee for supporting the wrong presidential candidate? The First Amendment applies to those cases, no?
So the First Amendment is implicated, and the question is, what is there on the other side? Unfortunately, the appellate decision, available at http://www.ca6.uscourts.gov/opinions.pdf/11a0221n-06.pdf, doesn't recite any of the specifics. So it is hard to speculate about whether the defendant has sound arguments. I have seen cases where a medical facility defends action against an employee who criticized patient care -- typical whistleblower activity -- by wrapping itself in the privacy of patients when, in fact, no patient privacy was violated.
A newspaper report about the district court decision, http://chronicle.com/article/Judge-Orders-U-of-Louisville/47925/, suggests that the problem here MAY have been that Yoder expressed views about patients generally that the university did not like -- for example, views about abortion -- and not really anything that could be fairly characterized as a HIPAA violation. Of course, this is just what was attached to her complaint. It is hard to form a judgment based on that alone.
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Re:
In any event, a first amendment claim is absurd. Her speech was not limited -- she has the right to free speech, she also has the right to be punished for the content of that speech. Accordingly, it is perfectly acceptable, and even smart, for a nursing school to fire someone who runs afoul of ethical guidelines. In other words, this is not about prior restraint, which is pretty much the only cause of action under the first amendment. It is about post publication punishment, which is almost entirely unproblematic.
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Blogging...
First Amendment does NOT give you the right to discuss patient issues no matter what anyone thinks. Would you want your doctor to discuss your health with your sister-in-law? Would you want your lawyer to discuss your case with your mechanic?
And in any case, should this woman become a nurse I hope she has had a realization about privacy.
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Re: Re: But there is a Constitutional issue
However, it seems to me that the first amendment should protect you from government punishment as a result of exercising your free speech.
After all there's not much point in free speech if the government can, for example, put you in prison for saying certain things. The government isn't stopping you from speaking, just you'll only be able to speak to your significant other once a month through a wire mesh ...
Otherwise all the first amendment would do is prevent the government from taping your mouth shut and breaking your fingers?
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Re: Unconstitutional conditions
Anonymous Coward wrote:
"You no nothing. Your reasoning that there is no First Amendment violation because attendance is voluntary is flatly wrong."
First, it's "I know nothing."
Second, it would help if you could improve your reading comprehension, specifically the ability to understand the implication in the parenthetical following the sentence you quoted.
Finally, it's "well settled case law," not "caselaw."
I'm still of the opinion this case will be decided on Due Process grounds, but . . . I know nothing.
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Connick v. Myers
Connick v. Myers gives us the test for what the government can reprimand their employees for. For a government employee to have any first amendment right,
Yes, but please provide a citation to a case where the government as employer rationale was extended to students attending government
education.
The justification for limiting the speech of government employees is inapposite to its power to limit what adult students may say about the government.
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Re: But there is a Constitutional issue
Firing someone for violating HIPAA in no way raises a first amendment issue. The only way that this would raise a first amendment issue is if the school did something _that prevented her from speaking in the first place_. They didn't. So its not.
EOM.
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Firing someone for violating HIPAA in no way raises a first amendment issue.
But was there a HIPAA violation? Hypothesize a statement that does not specifically identify a patient, or provide information from which the patient could be indirectly identified. Does that violate HIPAA?
Of course, we don't know enough about the facts of this case to know whether they fit this hypothetical
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May not be protected speech
Medical information is considered "legally privileged" information, the same way that attorney/client information is privileged. Legally privileged information is not treated the same as any other types of information - in search warrants, in courts, etc. There is a STRONG possibility that this information would NOT be protected under the first amendment.
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Get away from the HIPPA argument
According to all the arguments presented having to do with HIPPA, it would make one think that anyone in the medical profession is banned from talking to anyone else about how their day at work went. Which is completely preposterous.
Lets say that I am a nurse and work in a hospital, according to people here I am prohibited from going home after a hard day of work and telling my family about this patient I had with a really bad case of cancer, and how we were trying x,y,and z to make the patient comfortable to no avail, and I am really tired after doing that all day.
This scenario is not only perfectly legal, but happens every day every where. So long as no identifiable information is given, and the patient is referred to simply as "the patient" HIPPA has not been violated.
So please, get off the HIPPA bandwagon, it has nothing to do with this discussion.
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Re: But there is a Constitutional issue
So where in this story did you see the part where the University shut her up. I did not see that.
They did kick her out. That dose not violate her 1st amendment rights though.
Like many people you think that the 1st amendment means you can say anything you want with no consequences.
That is just not true.
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Congress has made no law here at all.
The neither the Congress of the United States nor The university made any law abridging her freedom to speak, or to write or blog or anything really.
They told her to "Get the fuck out".
Unless she can prove that being a student at that university is absolutely needed in order for her to be free to speak then nothing here has anything to do with her "rights".
Of course people who misunderstand the constitution so badly are usually Lawyers with a vested interest in the misunderstanding, idiots who think that the world owes them, or soon to be federal judges raping the citizens of their real constitutional rights.
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Re: But there is a Constitutional issue
Never said the 1st Amendment is suspended, but a university has the right to accept, deny or expel students if it determines they violate its policies. That's not a First Amendment issue.
If this was a case of a public high school, where everyone is guaranteed admittance, it might be somewhat different. But in school situation where the school has the ability to accept or deny admission, I'm not convinced that there's any First Amendment issue to change whether or not they wish you to be a part of the school.
Sorry if that distinction wasn't clear.
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Re: The decision doesn't tell us enough to judge either constitutional; argument
Mike, I think, would be sympathetic to some of those claims. For example, what about a high school that suspended a student for blogging about teachers or the principal? What about the post office firing an employee for supporting the wrong presidential candidate? The First Amendment applies to those cases, no?
I agree, but I believe those are very different scenarios, both involving political speech.
But there is an important distinction, which I think you're right to bring up. I wasn't saying that there's never a First Amendment issue involving speech on a state university campus... but in a situation where the university already has the right to accept or deny admission, is it really a 1st amendment issue to expel someone over things that present behavior that is antithetical to what they are training the person to do?
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Re: Re: Re: I think Mike hit his head
The world needs to stop turning because a student did something stupid? Only in America..... Anywhere else this would have been a shut case immediately.
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Re: Re: But there is a Constitutional issue
Incidentally, I know this because I've done it: I worked for a major (public) university and was critical of one of the academic departments. A professor in that department went to my boss's boss and demanded I be fired; my boss's boss, correctly, told him to STFU, that he had absolutely no administrative or legal basis for his demand. (Moreover, attempting to silence informed, reasoned criticism reflected poorly on his academic credentials.)
Now in THIS case, I don't see any evidence -- yet -- that the university has presented anything beyond "we don't like the fact that she was blogging". That's not enough. If they can show that (for example) she disclosed information contrary to HIPAA requirements, then they can certainly take administrative and/or legal action based on that. But I don't see that here; what I see are overreacting control freaks.
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Re: The patient should sue the blogger.
> use HIPAA to justify its decision, because
> it's pretty damn powerful, regardless of 1st
> Amendment issues.
While I agree that the university had the right to discipline the student for commenting on patients, HIPAA is *not* superior to the 1st Amendment.
In any instance where there's a conflict between a statute and the Constitution, the Constitution is superior.
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Re: Re: But there is a Constitutional issue
Forget about the subject/content of her blog for a minute: heck, substitute "kittens and puppies", then re-read and see if the issue becomes clearer.
Now perhaps that evidence exists. Perhaps there is a university rule that says "students agree not to blog about patients". Or perhaps she violated HIPAA. But if there exist such evidence demonstrating an administrative vioation or a legal violation, then the university is obligated to produce that evidence and cite the precise rule/statute violated. If it's SO severe that they feel it justifies expulsion, it should be trivially easy.
But they didn't. And so, AT THIS POINT, it looks to me like she has a case, and it looks to me like it's entirely the fault of the incompetent legal counsel of the university, who should have made sure that every i was dotted and every t was crossed before allowing them to take such drastic action.
Perhaps more facts will become available as this case proceeds.
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Re: Re: Re: But there is a Constitutional issue
Anyone can contract away their rights to certain types of speech as long as they don't agree under duress.
I'm not saying I agree with the Universities choice but being expelled from a school because you reveal details about patients (and openly mock them) while part of a nursing program isn't really surprising. If her code of conduct doesn't address this issue she could probably get back into school, but if it does she doesn't stand a chance.
Either way this isn't about the first amendment.
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Re: Re: Re: But there is a Constitutional issue
This is factually incorrect. If you enter into an employment agreement or sign a student code of conduct and agree not to disparage the university that contract trumps any 1st amendment concern.
my boss's boss, correctly, told him to STFU
I'm glad your boss stood up for you, but that has nothing to do with the 1st amendment. It is more likely you were part of a state union and so your contract does not include provisions which prevent you from disparaging your workplace; however, even government run institutions can require you to sign such an agreement as part of the employment process.
This girl may have a real case to get back into the school but it has nothing to do with the 1st amendment.
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Re: Re: Re: But there is a Constitutional issue
The words with blue underlines are called links. If you click on them they take you to additional information, including the complete filing were you can find the administrative regulation that she violated.
AT THIS POINT, it looks to me like she has a case, and it looks to me like it's entirely the fault of the incompetent legal counsel of the university, who should have made sure that every i was dotted and every t was crossed before allowing them to take such drastic action.
Actually it was Ms. Yoder who didn't dot her Is and cross her Ts. The university has a very clear set of steps, including an academic grievance which you agree to as part of the student code of conduct. Ms. Yoder never filled a grievance, she moved straight to a lawsuit.
Actually reading her little Myspace posts gives some insight into her character and it quickly becomes clear that this is the type of fight she has been waiting for.
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Re: Re: Re: I think Mike hit his head
She is probably flirting with a HIPAA violation but not quite crossing the line; however, I could see the university splitting the difference and deciding they don't think her conduct is professional.
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Re: Re: The patient should sue the blogger.
In any instance where there's a conflict between a statute and the Constitution, the Constitution is superior.
If that were true, all defamation laws (for example) would be unconstitutional.
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Re: Re: Re: The patient should sue the blogger.
> (for example) would be unconstitutional.
No, because defamation laws don't prohibit speech. They just hold you responsible for the damage you cause if you spread lies. You can lie as much as you want. No one's stopping you. You just can't escape the consequences of doing so.
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Constitutional issues
So if they want to expel someone for being black (well, there is a specific provision for that) or a woman, or simply because they don't like your religion (okay, there are specific Constitutional constraints - but I would argue they aren't really needed under the Constitution) .....
Look, anything that chills free speech or other freedoms should be looked at in other than a "because they have more money" viewpoint!
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Re: Re: Re: Re: The patient should sue the blogger.
First, that's a meaningless distinction. That position would equally defend a law imposing the death penalty for criticizing the government. No speech is prohibited, I just have to face the consequences of my speech: death.
Second, it also makes your original statement about HIPAA meaningless. It wouldn't matter whether there's any conflict between HIPAA and the Constitution, because HIPAA could assign any consequences to some particular speech without actually prohibiting that speech. So if true, the university could absolutely depend on HIPAA for its decision (assuming the student violated it).
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