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On Monday, the United States Court of Appeals for the Sixth Circuit reversed a () in which a student claimed that the University of Louisville wrongfully dismissed her based on the contents of her personal blog. The district court had refused to rule on the student's free speech and due process claims, and instead created a contractual claim on which to resolve the case. Now, , that court will have to rule on important constitutional issues regarding the regulation of student speech.

The case originated when Nina Yoder, a University of Louisville nursing student who observed a live birth as part of a clinical assignment, posted her views of the experience on her personal blog. A dean later told Yoder that the blog post violated the school's honor code and patient confidentiality, and she subsequently received a letter dismissing her from the university, citing violations of the honor code. After an appeals process in which Yoder was not allowed to participate, the dismissal was upheld.

Yoder sued the school, arguing that the school violated her First Amendment right to free speech, that the honor code and confidentiality agreement were unconstitutionally broad and vague, respectively, and that the school denied her due process by not giving her adequate notice or a proper hearing.

Believing itself constrained to first decide the case on any possible non-constitutional grounds, the district court created an entirely new claim based on contract law and resolved the case on those grounds instead. Examining the language of the honor code and the confidentiality agreement, the court found that Yoder had violated neither and as such was wrongfully dismissed—without reaching the constitutional issues.

On appeal, the Sixth Circuit of the district court's decision to avoid the constitutional issues and insert its own contract theory. Finding that the contract claim was invented by the district court with little support, the appellate court reversed the lower court's findings and remanded the case for further proceedings.

Fortunately, though it never originally reached the constitutional questions, the district court did use language supportive of students' constitutional rights. Particularly, the court said:

If the [School of Nursing] wishes for its students' confidentiality obligations to extend to the giving of non-identifiable information about patients, it must give fair notice.

and

‘Professionalism' is not defined anywhere within the [School of Nursing]'s rules and regulations.  [The associate dean] could not provide a definition of ‘professionalism' when asked at her  deposition. . . . [I]f the SON wishes for the professionalism affirmation in the Honor Code  to apply to every act or all conduct of a SON student everywhere and at all times in all contexts, it must give fair notice by explaining such obligation clearly.

These acknowledgements provide hope that, in the face of overbroad and vague restrictions on student speech, the district court will come out on the side of the First Amendment and due process, and the principles which allow true learning to take place.

FIRE opposes the overreaching of student conduct codes and honor codes that purport to regulate student conduct and speech in all places and at all times. Public colleges and universities like Louisville should not restrict protected student speech at all, let alone speech that occurs off-campus and on the Internet. The University of Louisville's application of its codes and agreements make it impossible for students to know what speech is subject to those regulations and what is ultimately prohibited. This will almost certainly lead to the chilling of student speech—a truly unacceptable result for an institution of higher education.