NABP Legal Briefs: School Gets In Your Facebook

November 30, 2011 11:03 AM

By Dale J. Atkinson, JD

Originally published in the November-December 2011 NABP Newsletter

In recent times, the regulatory community has questioned more and more the role (or obligation) educational programs have in communicating ultimate criteria for licensure to its applicants and graduates. That is, are educational programs required to undertake an initial assessment of applicants to the program regarding, for example, one’s criminal history or moral character as such a background may be an impediment to eventual licensure, in spite of graduation and successful completion of the licensure examination? What obligations do educational programs owe to admitted applicants who will expend time and monies to the school only to potentially be deemed ineligible for licensure based upon past transgressions occurring prior to enrollment in the program?

This question is further emphasized in certain educational programs where placement of enrolled students in medical settings is a requirement to graduation and such medical settings mandate criminal background checks and reserve the right to deny placement. Under this scenario, a currently enrolled student who has completed a significant portion of the curriculum may be precluded from or limited in opportunities for placement in an internship/externship mandated for graduation. Finally, the proliferation of for-profit schools/programs has placed further scrutiny on these issues as an argument can be made that schools/programs focus on enrollment numbers, rather than quality of applicants.

One legislative attempt to address these issues comes from the state of Texas, which mandates that every individual who applies for a license with the Texas Department of Licensing and Regulation (the Department) and other boards that issue licenses is subject to a criminal background check to determine his or her suitability for the license. In 2009, the state enacted new provisions to allow a person to find out before applying for licensure (or for that matter, before applying for an educational program) whether he or she would likely be denied a license due to his or her criminal history, as determined by the Department or board at that time. The Department or board reviews the requesting individual’s criminal convictions, deferred adjudications, and any other aspect of his or her criminal history that may have bearing on a license application. Within 90 days of receiving a complete request, it will issue a criminal history evaluation letter stating that the Department would or would not recommend granting a license to the requestor, based on all of the information available to the Department at that time. The Department’s view of the requestor’s criminal background may be different at the time of an actual license application, due to a change in the requestor’s circumstances, discovery of additional information not previously known to the Department or board, or a change in the Department or board’s policies relating to applicants’ criminal backgrounds.

Under any circumstances, a ruling at the time of licensure application to a regulatory board is also dependent upon successful completion of the educational program, licensure examinations, and other criteria contained in the practice act. Nonetheless, licensing boards will ultimately be asked to assess and determine licensure eligibility of applicants who may have a suspect past. Indeed, activities questioning an applicant’s moral character may occur in the educational program. Consider the following.
Students in mortuary arts programs leading to licensure as funeral directors and embalmers take significant laboratory courses, which involve the physical handling of human materials and cadavers, including dissection. Cadavers are acquired through an anatomy-bequest program of the university whereby the body of a deceased person is provided to the school and referred to as a “Donor.” All mortuary arts students participate in orientation programs that address appropriate conduct with respect to Donors and, in addition, sign acknowledgements agreeing to abide by the school’s code of conduct.

During November and December 2009, a student of the school posted on her Facebook page several postings that referred to her cadaver as “Bernie” (derived by the student from the movie Weekend at Bernie’s) and also referenced the use of a scalpel and a trocar in an embalming exercise related to aspirating a cadaver. In addition, the student posted references to wanting to “stab a certain someone in the throat with a trocar” and that she will spend time “updating my ‘Death List #5’ and making friends with the crematory guy.” Finally, her Facebook postings stated that Bernie would no longer be with her, that she would miss him, and that she maintained a “lock of [Bernie’s] hair in her pocket.” According to her Facebook settings, these postings were allowed to be viewed by “friends” and “friends of friends” of the student, which amounted to hundreds of people.

A fellow student who also worked for the anatomy-bequest program of the university reported concerns over the student’s postings to the school administration personnel. The director of the mortuary arts program met with department faculty and the police regarding these postings. No criminal charges were filed, but the student, after a hearing conducted by the Campus Committee on Student Behavior (CCSB), was found responsible for violating several sections of the code of conduct. As a result, she was sanctioned by being given a failing grade in the lab class, required to enroll in an ethics class, write a letter to faculty regarding respect to the program and cadavers, and complete a psychiatric evaluation. Her internal appeals were denied as the provost affirmed the CCSB findings and held that her actions were “disrespectful, unprofessional, and reasonably interpreted as threatening.” The student appealed the matter to the state of Minnesota Court of Appeals.

On appeal, the student argued, among other things, that her Facebook posts were protected literary expressions and subject to protections of free speech under the First Amendment of the United States Constitution. The court noted that although student speech is afforded broad constitutional protections and that “state colleges and universities are not enclaves immune from the sweep of the First Amendment,” that schools may limit or discipline student expression if school officials “reasonably conclude that it will ‘materially and substantially disrupt the work and discipline of the school.’” In determining such to be the standard, the court rejected the student’s argument that an “actual threat” is the threshold from exempting expression from First Amendment protections. In making this argument, the student emphasized that her postings were not an actual threat but were in response to a recent break-up with a boyfriend and, when read in context, obviously constitute “literary expression intended to be satirical, vent emotion, and incorporate popular culture references.”

Thus, the court narrowed the issue to whether the student postings materially and substantially disrupted the work and discipline of the school. In finding for the school, the court held that these posts were violent, threatening, and solicited attention from those in the anatomy-bequest program, potentially adverse to the acquisition of Donors. Further, the testimony indicated that multiple students and professors felt threatened as potential targets of her “Death List” and that such clearly disrupted the work of the school.

The court also rejected the arguments of the student that the activities occurred off campus and were thus not subject to the authority or jurisdiction of the school. Citing the code of conduct, the court found that off campus activity can form the basis of student discipline as such is explicitly stated within the code. As far as specific rules within the code alleged to have been violated, the court upheld some of the findings of violations, while overturning others. The court upheld the postings to constitute threatening conduct, that Facebook posts constitute “blogging” as referenced in the code, and that her actions violated the disclosure form signed by mortuary arts students as related to Donors. The court found in favor of the student as to the fact that her postings did not, as defined in the code, constitute “physical handling” of a cadaver, did not implicate “funeral service,” and did not substantiate that the student “failed to treat a decedent with proper care and dignity during transport.”

However, based upon its conclusions, the court affirmed the findings and sanctions of the school, noting that appellate courts generally defer to the universities in student discipline matters. The court upheld the sanctions imposed by the school and affirmed the holding of the CCSB and provost.

Assuming such information is available for the licensing boards, the behavior of students within an educational setting may provide a basis for a more in-depth moral character assessment when and if such student eventually seeks licensure by the applicable state board. Readers are reminded of the Albany College of Pharmacy (ACP) case reported on in the article, “Compounded Diploma,” referencing Papelino v Albany College of Pharmacy, Union University, 2009 WL 2957789 (US DC NY 2009) and published in the November-December 2009 NABP Newsletter. In that article the concluding paragraph stated:
Thus, the District Court ruled in favor of ACP in granting its request for summary judgment. The educational standards under which applicants for licensure as pharmacists must meet necessitates, at times, the verification or certification of the academic achievements of the student-applicant for licensure. Educational programs have an obligation to not only their students, but the licensing boards that rely upon the graduation as one criterion in the licensure process. The above represents an interesting approach to refusing to certify a student who received a diploma.

Stay tuned as there has been activity on the Papelino case reversing in part the lower court ruling and such will be the topic of a future NABP Newsletter Legal Briefs article.

Tatro v University of Minnesota, Case Number A10-1440 (App. Ct. MN 2011)