U Tenn Pharmacy School Pays $250K Settlement for Trying to Expel Student for Sexually Themed Tweets
FIRE, which represented the student (Kimberly Diei) reports:
After her First Amendment lawsuit set precedent last fall for student free speech rights, Memphis pharmacist Kimberly Diei agreed to a $250,000 settlement with the University of Tennessee. [The settlement was $180K to Diei, and $70K to her lawyers at FIRE. -EV]
Just a month into her studies in September 2019, UT’s pharmacy school investigated Kim for her social media content focused on sexuality, fashion, and music. The college justified the investigation by using vague “professionalism” standards—standards it never provided to Kim—but ultimately dropped that first investigation.
In one tweet, Kim contributed to a trending discussion on Twitter about the song “WAP” by Cardi B and Megan Thee Stallion, suggesting lyrics for a possible remix. In another, she posted a selfie and referenced lyrics from a popular Beyoncé song. [Just to be clear, the lyrics were pretty sexually themed, though that rightly didn’t change the First Amendment analysis. -EV]
Unfortunately, Kim’s ordeal was not unique. For years, colleges around the country have wielded professionalism codes against students for their expression even when the student’s speech has no bearing on their ability to succeed in a given field. Kim’s posts were wholly separate from the college, as her accounts operated under a pseudonym and did not reveal her then-identity as a student.
Yet by the following year, Kim was under a second investigation, and UT administrators voted to expel her. In the midst of preparing for exams, she appealed to the dean, who reversed the decision after hearing from FIRE. Then, FIRE sued on behalf of Kim in February 2021….
In 2024, a federal appeals court agreed, ruling that her expression—which administrators called “sexual,” “crude,” and “vulgar”—was “clearly protected” by the First Amendment. Crucially, in a blow to the qualified immunity that often shields government actors from paying damages for violating constitutional rights, the court emphasized that previous Supreme Court precedent and prior Sixth Circuit rulings put “beyond debate” that the First Amendment protects Kim’s speech.
Here’s my September post on the Sixth Circuit opinion:
From [the] opinion in Diei v. Boyd, written by Judge Chad Readler and joined by Judges Joan Larsen and Stephanie Davis:
Kimberly Diei enrolled at the University of Tennessee Health Science Center College of Pharmacy to pursue a doctorate in pharmacy. At the time, Diei maintained social media accounts under the pseudonym “KimmyKasi,” where she posted about song lyrics, fashion, and sexuality. According to Diei, her social media posts neither identified her “as a College of Pharmacy student” nor “indicated any affiliation with the University of Tennessee.” Those accounts would nevertheless put Diei at the center of a school investigation.
Just a month into her studies, Diei was informed by Christa George, Chair of the College’s Professional Conduct Committee, that the Committee had received an anonymous complaint regarding Diei’s social media activity. George explained that the Committee would review the posts to decide whether they violated the “Standards for Student Professionalism Conduct,” requirements Diei asserts she was never provided. Following an investigation, the Committee unanimously held that Diei’s postings were “sexual,” “crude,” and “vulgar” in nature, and thereby violated the College’s professionalism standards. The Committee, however, did not vote to expel Diei.
The following school year, George notified Diei that the Committee had received a second complaint similar to the first. After a hearing, the Committee informed Diei that the content of the newly complained-of posts also violated the College’s professionalism standards. The Committee deemed Diei’s social media activity “a serious breach of the norms and expectations of the profession[],” and concluded that Diei did not “meet the threshold of professional behavior or the requirements of the Technical Standards for students.” Accordingly, the Committee voted unanimously to dismiss Diei from the College. Diei appealed that decision to the school’s Dean. Roughly three weeks later, the Dean reversed the Committee’s decision.
Diei sued, claiming the original decision violated the First Amendment, and the Sixth Circuit held that her case could go forward:
First Amendment freedoms are somewhat constrained in the educational context. Generally speaking, “students do not ‘shed their constitutional rights to freedom of speech or expression,’ even ‘at the schoolhouse gate.'” At the same time, public high schools and universities have considerable authority to control student speech in light of the pedagogical roles of those institutions. That is not to say the First Amendment necessarily affords the same protection to speech by a high
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