A pharmacy graduate student is suing the University of Tennessee for violating her freedom of speech and 'spying' on her after they tried to expel her for allegedly 'vulgar' posts on social media.
Kimberly Diei, 27, was expelled in September by the college's Health and Science Center (UTHSC) after anonymous students twice complained about her photos on Instagram and Twitter, including wear low-cut tops, sticking her tongue out and writing reportedly raunchy rap lyrics inspired by Cardi-B.
Although the college later reversed the decision to avoid court, the doctoral candidate, who is studying for a PhD in nuclear medicine, is fighting back with the help of a pro-bono lawyer and filed a federal lawsuit on Wednesday.
The University of Chicago graduate, who now studies at the Tennessee public school's Memphis campus, posts under the pseudonym kimmykasi and called her messages to her 19,500 Instagram followers and 2,000 Twitter followers 'sex positive' and designed to 'empower' black women.
A spokeswoman for the University of Tennessee, Melissa Tindell, said she could not comment on pending litigation.
Kimberly Diei, 27, a pharmacy doctoral candidate at The University of Tennessee, is suing the school for allegedly violating her 'freedom of speech' by expelling her for supposedly 'vulgar' posts on social media after some students made anonymous complaints
The University of Chicago graduate has 19,500 Instagram followers and posts 'sex positive' photo of herself, like this one from Instagram, which she says are designed to empower the black community
A disciplinary panel at the college expelled her in September for the posts, though they reversed the decision when it became clear she would sue. Diei pictured in a photo from Instagram
Diei, pictured on Instagram, said her posts were 'sex positive' and that her social media did not impinge on her ability to be a pharmacist
Diei, pictured on Instagram, said she believes she was targeted by students because she is 'outspoken' in class and that they made complaints on Facebook
Diei posts on Twitter under a pseudonym which she says is not affiliated with the college. The college used examples of her tweets to say the content was 'inappropriate'
She studies at The University of Tennessee's Health and Science Center (UTHSC), in Memphis, where she specializes in nuclear medicine and hopes to get her PhD in 2023
Diei told The New York Times that the case has made her 'sick to my stomach' but she believed that the university had violated her First Amendment rights 'for no legitimate pedagogical reason' and that she was taking the case forward to prevent future students being targeted.
She added, in an interview with legal website Fire.org: 'It’s just a matter of time before they come back for another investigation into my expression on social media. UT spied on my social media activity — activity that has no bearing on my success as a pharmacist or my education. I can be a successful and professional pharmacist as well as a strong woman that embraces her sexuality. The two are not mutually exclusive.'
On Wednesday Diei filed a federal lawsuit against the college with the help of a pro bono lawyer
In her lawsuit Diei accuses the university of spying on her social media and making up their own rules to punish individual students
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ShareDiei graduated from the University of Chicago in 2015 with a biology degree before teaching physics in a charter school.
She went back to school to specialize in nuclear pharmacy and handling radioactive materials and hopes to earn her doctorate pharmacy degree in 2023.
The situation started last year when Diei was reported for the first time and ordered to write a 'letter of reflection', but the second time she received a letter on Sept. 2 claiming her 'conduct is a serious breach of the norms and expectations of the profession' and that one of posts identified her as a student at the college, which she denies.
The college referenced the student handbook, which says that university staff 'may monitor social networking sites on occasion and egregious unprofessional postings could lead to disciplinary actions.'
But it left her to extrapolate what was 'egregious', she said.
The disciplinary panel of the school's professional conduct committee, composed, according to court papers, of nine faculty members and three students, cited several examples it considered objectionable in Diei’s posts.
Reportedly including 'contributing to a trending discussion on Twitter about the song ‘WAP’ by Cardi B featuring Megan Thee Stallion by suggesting lyrics for a possible remix.'
Her suggestion — 'He ain’t my pops but I call him DAD' because he is good in bed (her wording was different) — was 'well within the normal bounds of discussion on social media'. her complaint says.
The pharmacy dean overruled her expulsion three weeks later, after a telephone conversation in which, Ms. Diei said, the dean asked her to try to block people affiliated with the school from her accounts, and to minimize her affiliation with the university, which she said was 'hard for me to do when I have so many followers'.
Ms. Diei said she crafted her posts for an audience of black women like herself, and hoped she might become popular enough to make money promoting products.
'I use words and phrases common amongst our community,' she said, including the word 'kasi' in her pseudonym, an Igbo word meaning 'greatest' that is a tribute to her Nigerian father.
Greg H. Greubel, Diei's pro-bono lawyer, a staff attorney at the Foundation for Individual Rights in Education, said in the age of social media colleges and schools are struggling to learn how and when to assert rules over their students' online lives, with students claiming that what they do off campus is irrelevant.
He added: 'It’s so hard to fit old First Amendment principles into the social media era. This is one of those areas of law that needs to evolve.'
Kimberly Diei's pro bono lawyer Greg Greubel filed a federal lawsuit on Wednesday accusing The University of Tennessee of violating her 'freedom of speech'. The university said it cannot comment on an on-going legal case
Peter Lake, who often advises college presidents and is the director of the Center for Excellence in Higher Education Law and Policy at Stetson University College of Law, said the troubles stem from the blurring of boundaries between school and home life as a result of the internet.
He added: 'If someone is shouting in a classroom, you have the right to control the time, place and manner. When they are shouting on Twitter, is it their space or yours?'
Mark Merritt, a former general counsel at the University of North Carolina at Chapel Hill, said that universities generally do not 'spy' on students social media, unless they receive a complaint.
He said: 'Universities don’t tend to be social media police in the sense that they’re out there actively monitoring social media. But it happens fairly frequently that things are brought to the attention of the administration.'
In January the Supreme Court agreed to hear the case of a high school cheerleader in Pennsylvania who was removed from the junior varsity squad after she posted allegedly rude complaints about not making the varsity team.
The cheerleader had sent an image to 250 Snapchat friends of herself and a friend raising their middle fingers, along with text cursing 'school,' 'softball,' 'cheer' and 'everything.'
After getting kicked off the team, she sued and won reinstatement.
But the Mahanoy Area School District is appealing, in a case being closely watched by school authorities.
In 2007, the Supreme Court backed Alaskan head teacher Deborah Morse who suspended a student for unfurling a 14-foot banner with the message 'Bong Hits 4 Jesus', as the Olympic torch parade went through Juneau en route to the 2002 Winter Games in Salt Lake City.
The student, Joseph Frederick, was suspended for ten days even thouugh he said it was a prank.
By a narrow margin the Supreme Court backed the principal's 'suppression' of Frederick's freedom of speech, claiming there was a loophole for when that speech 'promoted' illegal drug use.
The decision showed the court deeply split over what weight to give to free speech in public schools.
Douglas Mertz, a lawyer for Joseph Frederick, with the banner that led to a 10-day suspension in 2002 and a trip to the Supreme Court, which ruled in 2007 that a student's freedom of expression can be suppressed by their school if they were advocating illegal drug use
In 1973 the Supreme Court ruled that the University of Missouri cannot punish students for indecent or offensive speech that does not disrupt campus order or interfere with the rights of others, after it expelled a student for distributing an underground newspaper
Legal experts have said that freedom expression lawsuits took place in multiple colleges and schools ion the 1960s and 1970s.
In the early 1970s the University of Missouri expelled Barbara Papish, a thirty-two-year-old graduate journalism student for reprinting an offensive cartoon and a vulgar headline in an underground newspaper, saying it violated a university policy requiring students 'to observe generally accepted standards of conduct” and prohibiting 'indecent conduct or speech.'
The Supreme Court found in 1973 that the university had violated the First Amendment by expelling the student and held that 'the mere dissemination of ideas — no matter how offensive to good taste — on a state university campus may not be shut off in the name alone of ‘conventions of decency.’'
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