Dismissing a student for blogging about patients – free speech v. confidentiality agreements in the Sixth Circuit

Long-time readers may remember the case of Nina Yoder, a nursing student who was expelled from the University of Louisville School of Nursing [SON] in 2009 for allegedly breaching the honor code and confidentiality agreements she had signed by her posts on MySpace.  A district judge had ordered her reinstatement in August 2009, and Yoder eventually graduated from the program, but it seems the part of her lawsuit dealing with damages and constitutional issues of free speech and due process had not been addressed and remained in the courts.

The question of what nursing or medical students or staff can say online that might be subject to disciplinary action is an important one, as it may pit notions of protected speech against an entity’s or employer’s legitimate concerns about disclosures. The issue also raises questions about whether online speech during off-duty hours on one’s own computer can be subject to disciplinary action.  Since the time this case first arose, a number of schools have attempted to regulate off-campus online speech in attempts to deal with cyber-bullying.  But what about adults disclosing information learned on the job or in their internships or rotations if they’ve signed a confidentiality agreement?

In an opinion issued by the Sixth Circuit Court of Appeals on the free speech claim, the court notes the absence of relevant precedent:

In addition, both parties rely heavily on Supreme Court cases that govern student speech standards, none of which considers the unique circumstances posed here. Yoder has not identified any case—nor are we aware of any—that undermines a university’s ability to take action against a nursing (or medical) student for making comments off campus that implicate patient privacy concerns. Defendants have legal and ethical obligations to ensure that patient confidentiality is protected, and that nursing students are trained with regard to their ethical obligations. See, e.g., Ky. Rev. Stat. § 314.031(4)(d), (k); id. § 314.111. Yoder gained access to the Patient through the SON’s clinical program, and patients allow SON students to observe their medical treatment in reliance on the students’ agreement not to share information about their medical treatment and personal background. Under such circumstances, Defendants could not “fairly be said to ‘know’ that the law forb[ids] [discharging a student under these circumstances].” Harlow, 457 U.S. at 818.

You can read the full opinion here (pdf).  They do not seem to reach the issue of whether Yoder’s speech was protected speech, but analyze whether the university officials had reasonable grounds to believe that Yoder had waived any First Amendment rights because she had signed the confidentiality agreement and other documents.

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