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Keefe v. Adams

United States Court of Appeals, Eighth Circuit

October 26, 2016

Craig Keefe, Plaintiff- Appellant
Beth Adams; Connie Frisch; Kelly McCalla, Defendants-Appellees Foundation for Individual Rights in Education; Alliance Defending Freedom; Student Press Law Center; Electronic Frontier Foundation; American Booksellers Foundation for Free Expression; National Coalition Against Censorship; American Civil Liberties Union of Minnesota, Amid on Behalf of Appellant

          Submitted: June 10, 2015

         Appeal from United States District Court for the District of Minnesota - Minneapolis

          Before LOKEN, SHEPHERD, [1] and KELLY, Circuit Judges.

          LOKEN, Circuit Judge.

         After 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[2] 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).

         I. Background

         A. The Events Leading to Removal.

         Keefe 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.

         In late 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 day.

         After 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."

         Frisch 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.

         On the 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 court's Order:

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[3] 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...

         Frisch, 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.

         At the 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.

         Keefe 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 professionalism.

         B. The Relevant Nursing Program Standards.

         As part 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 Program's handbook:

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.

         The Nurses Association Code of Ethics, which the Handbook states students are "obligated to uphold and adhere to, " emphasizes professionalism and personal and professional boundaries:

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 professional boundaries.
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 values.[4]

         C. Keefe's Administrative Appeal.

         Keefe 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 ...

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