Submitted: June 10, 2015
from United States District Court for the District of
Minnesota - Minneapolis
LOKEN, SHEPHERD,  and KELLY, Circuit Judges.
Central Lakes College (CLC) received student complaints about
posts on Craig Keefe's Facebook page, he was removed from
the Associate Degree Nursing Program for behavior unbecoming
of the profession and transgression of professional
boundaries. Keefe filed suit against several CLC
administrators, alleging violations of his First Amendment
and due process rights. After some defendants were dismissed,
the district court granted the remaining defendants summary
judgment. Keefe v. Adams, Civ. No. 13-326, Order (D.
Minn. Aug. 26, 2014). Keefe appeals. Reviewing the grant of
summary judgment de novo, we affirm. See
Richmond v. Fowlkes, 228 F.3d 854, 857 (8th Cir. 2000)
(standard of review).
The Events Leading to Removal.
completed the practical nursing program at CLC and became a
licensed practical nurse in June 2011. He enrolled in the
Associate Degree Nursing Program in the fall of 2011, seeking
to become a registered nurse. He was dismissed at the end of
that semester for failing to maintain the required grade
levels in all nursing courses. He reapplied, was admitted to
the Program, and again began classes in the fall of 2012.
November, a student complained to Keefe's instructor, Kim
Scott, about several posts Keefe had made on his public
Facebook page. She provided Scott printouts of five posts she
felt were threatening and related to the classroom. A few
days later, a second student approached Scott at the start of
a clinical class in which she was enrolled with Keefe. She
told Scott that Keefe made statements on Facebook that
"made her feel extremely uncomfortable and nervous,
" and that "she didn't feel she could function
in the same physical space with Craig at the clinical
site." Concerned about patient care and safety in the
clinic, Scott separated Keefe and the student during the
shift. The student forwarded the posts to Scott later that
receiving the two complaints, Scott forwarded the posts to
her supervisor, Connie Frisch, CLC's Director of Nursing.
Frisch read the posts and verified they came from Keefe and
were accessible to anyone on the internet. Frisch then
contacted the Vice President of Academic Affairs, Kelly
McCalla, who told her to meet with Keefe. Frisch contacted
Keefe and set up a meeting, without explaining its purpose.
Keefe sent Frisch an email asking for more detail about the
meeting. Frisch responded that she would prefer to review the
topic in person rather than via phone or email, advising
Keefe he did not need to prepare for the meeting and noting
that "the topic of professional boundary is central to
the role of the nurse and I am sure that you appreciate the
delicacy of the topic."
then received an email from Kim Scott relaying a
student's concern that Keefe had told someone there would
be "hell to pay for whoever complained about me."
Frisch called Keefe and moved the meeting up one day, so that
he would not be in his next clinical class with the concerned
student. Keefe again asked what the meeting was about. Frisch
again said she would prefer to discuss it in person but that
due process would be followed.
agreed day, Keefe met with Frisch and Beth Adams, CLC's
Dean of Students. McCalla did not attend because he would be
responsible for reviewing any academic appeal. Frisch began
the meeting by reviewing the steps of the Due Process Policy
from the Student Handbook. She told Keefe that his Facebook
posts raised concerns about his professionalism and boundary
issues. She did not give him copies of the posts, but she
read aloud portions of the posts that she considered most
significant. We will reproduce only the posts that Frisch and
Adams testified gave them particular concern. A more
extensive recital of the offensive posts that Scott forwarded
to Frisch can be found at pages 5-6 of the district
Glad group projects are group projects. I give her a big fat
F for changing the group power point at eleven last night and
resubmitting. Not enough whiskey to control that anger.
Doesnt anyone know or have heard of mechanical pencils. Im
going to take this electric pencil sharpener in this class
and give someone a hemopneumothorax with it before to long. I
might need some anger management.
LMAO [a classmate], you keep reporting my post and get me
banded. I don't really care. If thats the smartest thing
you can come up with than I completely understand why your
going to fail out of the RN program you stupid bitch....And
quite creeping on my page. Your not a friend of mine for a
reason. If you don't like what I have to say than
don't come and ask me, thats basically what creeping is
isn't it. Stay off my page...
who testified she was most disturbed by the statement about
giving someone a hemopneumothorax, then gave Keefe an
opportunity to respond. He told her there were a lot of jokes
on his page, his page had been hacked, and he did not know it
was public. Frisch testified that Keefe was not receptive to
her concern that the posts were unprofessional. Based on
Keefe's "lack of remorse, lack of concern, not
recognizing, not saying he wanted to change, " Frisch
decided to remove him from the Associate Degree Program:
Clearly there was a lot of confusion about the
professionalism . . . I didn't believe I could teach him.
He was not responsive to what I said. You know, nursing
programs have an obligation to graduate students who are not
just able to pass the classes, but to be safe and to have all
of the soft skills, including professionalism . . . . I could
not see that he had it. In fact he convinced me that I
wasn't going to be able to teach him that.
end of the meeting, Frisch told Keefe he could finish the
semester and his credits would transfer as electives to a
different course of study within CLC. She also advised Keefe
he could appeal the decision to Vice President McCalla. Beth
Adams testified that Keefe appeared not to understand the
seriousness of the problem; he was defensive and did not seem
to feel responsible or remorseful. She was concerned about
the "whiskey for anger management" post because
Keefe became argumentative during the discussion.
testified he asked Frisch which posts she was referring to,
and she mentioned the comment about using whiskey for anger
management, the swearing, and calling a fellow student a
"stupid bitch." When she gave him an opportunity to
respond, Keefe told her that his Facebook page had been
hacked, but he confirmed in his deposition that he wrote each
of the posts in question. He also told Frisch that many of
his comments were jokes. She responded that his comments were
quite disturbing and that she felt he had anger issues. Keefe
testified that, when he mentioned his First Amendment rights,
Frisch said that she understood his rights but this was about
The Relevant Nursing Program Standards.
of enrolling in the Associate Degree Program, Keefe
acknowledged receipt, review, and understanding of the
Nursing Program Student Handbook. The handbook states that
"all current and future students are expected to adhere
to the policies and procedures of this student
handbook." Following the meeting, Frisch wrote a letter
to Keefe, stating: "As we discussed, the decision has
been made to remove you from the Associate Degree Nursing
Program at CLC as a consequence of behavior unbecoming of the
profession and transgression of professional boundaries"
based on the contents of his Facebook page. The letter
reviewed the appeal process and stated he was being removed
pursuant to the following section of the Nursing
Student Removal from Nursing Program
Integral to the profession of nursing is a concern for the
welfare of the sick, injured, and vulnerable and for social
justice; therefore students enrolled in the Associate Degree
(AD) Nursing Program and Central Lakes College (CLC) accept
the moral and ethical responsibilities that have been
credited to the profession of nursing and are obligated to
uphold and adhere to the professional Code of Ethics. The
American Nurses Association (2001) Code for Nurses with
Interpretive Statements outlines the goals, values, and
ethical principles that direct the profession of nursing and
is the standard by which ethical conduct is guided and
evaluated by the profession. The AD Nursing Program at
Central Lakes College has an obligation to graduate students
who will provide safe, competent nursing care and uphold the
moral and ethical principles of the profession of nursing.
Therefore, students who fail to meet the moral, ethical, or
professional behavioral standards of the nursing program are
not eligible to progress in the nursing program. Students who
do not meet academic or clinical standards and/or who violate
the student Code of Conduct as described in the Central Lakes
College catalog and the AD Nursing Student Handbook are also
ineligible to progress in the AD Nursing Program. Behaviors
that violate academic, moral, and ethical standards include,
but are not limited to, behaviors described in the College
Catalog Student Code of Conduct as well as:
. . .
• transgression of professional boundaries;
• breaching of confidentiality/HIPAA (including any type
of social media breach);
• behavior unbecoming of the Nursing Profession.
Students who fail to adhere to the CLC Student Code of
Conduct and the moral and ethical standards outlined in the
handbook are ineligible to progress in the Nursing Program.
Nurses Association Code of Ethics, which the Handbook states
students are "obligated to uphold and adhere to, "
emphasizes professionalism and personal and professional
1.5 Relationships with colleagues and others
-- The principle of respect for persons extends to all
individuals with whom the nurse interacts. The nurse
maintains compassionate and caring relationships with
colleagues and others with a commitment to the fair treatment
of individuals, to integrity-preserving compromise, and to
resolving conflict. Nurses function in many roles, including
direct care provider, administrator, educator, researcher,
and consultant. In each of these roles, the nurse treats
colleagues, employees, assistants, and students with respect
and compassion. This standard of conduct precludes any and
all forms of prejudicial actions, any form of harassment or
threatening behavior, or disregard for the effect of
one's actions on others.
2.4 Professional Boundaries -- When acting
within one's role as a professional, the nurse recognizes
and maintains boundaries that establish appropriate limits to
relationships. . . . In this way, nurse-patient and
nurse-colleague relationships differ from those that are
purely personal and unstructured, such as friendship. . . .
In all encounters, nurses are responsible for retaining their
5.3 Wholeness of character -- Nurses have
both personal and professional identities that are neither
entirely separate, nor entirely merged, but are integrated.
In the process of becoming a professional, the nurse embraces
the values of the profession, integrating them with personal
Keefe's Administrative Appeal.
spoke with Vice President McCalla the next day to discuss the
appeal process. McCalla reviewed the substance of the posts
with Keefe and referred him to a student advocate, who helped
write the appeal. Before filing the appeal, Keefe sent Frisch
a lengthy email identifying procedures in CLC's Due
Process Policy he had not been provided. Frisch forwarded the
email to McCalla, who then emailed Keefe that his appeal had
been received and warned Keefe that he should not contact the
nursing faculty, the Dean of Nursing, or his former nursing
classmates. Keefe testified that he did not attend further