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Kimberly Diei sued the University of Tennessee after she was censured for what a professor called “vulgar” social media posts.
VIA Productions and Breezy Lucia/FIRE
A former doctoral student’s years-long fight to prove her university violated her First Amendment rights can continue, thanks to a federal appeals court ruling that overturned a lower court’s dismissal of the lawsuit.
Kimberly Diei sued officials at the University of Tennessee in 2021 after a professional conduct committee voted the previous fall to expel her because of her social media posts, her suit says. At the time, she was seeking her doctorate in pharmacy. Her case quickly became another national example of a student or higher education employee’s online speech leading to fights over the scope of free expression protections at public universities.
In the September 2020 expulsion letter, Christa M. George, an associate professor in the university’s College of Pharmacy and chair of the professionalism committee, wrote to Diei that her social media posts were “unprofessional,” “sexual,” “crude” and “vulgar,” the suit says.
What were the posts? Greg Greubel, an attorney for Diei from the Foundation for Individual Rights and Expression, a free speech advocacy group, provided Inside Higher Ed screenshots that he said the committee sent Diei. All the posts were under a pseudonym.
“Y’all mad at sex workers cuz don’t nobody wanna pay you for that dusty ass community dick,” one of Diei’s tweets read. Another: “Bitches can’t even put the ‘ho’ in hotel cuz they getting fucked in borrowed cars.”
There was one tweet with a link to OnlyFans, a site often used to host pornography, but Diei told Inside Higher Ed she only posted there “the same content that I had already posted to Instagram” and she “never posted anything pornographic, anything that was inappropriate.”
“I don’t think they bothered to even research that,” Diei said. Other posts included references to shaving before sex and to the song “WAP,” a raunchy Cardi B anthem featuring Megan Thee Stallion.
Diei said she immediately appealed the recommended expulsion and a dean stopped it. But, in early 2021, she nevertheless sued George, university president Randy Boyd and members of the university’s Board of Trustees, alleging her First Amendment rights had been violated. She said she was self-censoring for fear of further punishment and had suffered distress.
Last year, a judge in the U.S. District Court for the Western District of Tennessee dismissed her case, ruling that her posts weren’t “protected First Amendment speech.” But on Tuesday, the U.S. Court of Appeals for the Sixth Circuit revived it, determining the lower-court judge was wrong to dismiss it and that the First Amendment likely protected her online posts.
“This is just a long time coming, and it’s given me a renewed hope for finally achieving justice,” Diei told Inside Higher Ed Wednesday.
“I was basically just minding my business, doing what most people do on social media,” she said. “It had nothing to do with my education at the institution or the practice of pharmacy, and they tried to police that speech outside of the classroom.”
Diei, who is African American, added that she felt “there was an undertone of racism regarding this whole entire ordeal.” The professionalism committee, she said, was filled with white people “telling me they basically think I’m disgusting and unprofessional.”
Judge Chad A. Readler, writing for the appeals court panel, said in the ruling, “A university cannot use a policy to punish student speech if the university has no legitimate educational reason for doing so.”
Readler also wrote that Diei’s speech was allegedly off campus, pseudonymous, “unrelated to her studies, had no privacy implications, caused no disruption to the college and did not violate any policy of which she was aware.” He said, “It is exceedingly difficult to see how any professionalism policy could serve a pedagogical purpose if students are unaware of its existence.”
Despite Readler’s ruling coming years into the litigation, the judge noted the case was still at an early stage, before both sides can collect evidence via discovery.
“As the record develops, it may reveal that Diei’s speech was not clearly protected,” he wrote. “Today, we merely hold that Diei’s speech, as alleged, was clearly protected by the First Amendment. At this preliminary stage, then, defendants do not deserve dismissal [of the lawsuit] based on qualified immunity.”
Qualified immunity would have protected the individual university officials Diei sued from having to possibly pay monetary damages, Greubel said.
George and a University of Tennessee Health Science Center spokesperson didn’t respond to requests for comment Wednesday. Diei, who has already graduated and become a pharmacist, said she plans to push forward with the litigation. Greubel said Diei will be seeking damages from the officials.
“These professional standards are for your job, they’re not for your personal life,” Greubel said. Yet, he said, they’ve been used for decades to silence student speech.
Diei noted that she graduated with honors.
“I’m meeting the marks, but I still am entitled to a private life and freedom of speech,” she said.
