How would you feel if the nurse helping your wife through labour and delivery had just before finishing nursing school posted a photo of herself on Facebook posing and smiling broadly while holding a human placenta?

In yet another example of students going Facebook stupid, four students who posed for photos with a placenta were reportedly (insidehighered) kicked out of their suburban Kansas City nursing program at after one of the photos was posted on Facebook.  The students were attending a lab course at Olathe Medical Center when one asked the nursing instructor for permission to take pictures with the placenta to be shared on Facebook, which is exactly what they did.   The instructor denies the students asked for permission to post the pictures on Facebook.  The posted photo does not identify the woman from whom the placenta came.

Several hours after the photo was posted, the nursing instructor called the student who posted it and asked her to remove it, which she did immediately.  The four students were each expelled from the program the next day (or, more correctly, were kicked out and asked to reapply for the program this summer), and one of them started a lawsuit to force the school to readmit her immediately.  Here is a link to legal documents filed on behalf of the student.  Here is the press release with an explanation from Johnson County Community College, which includes a quote from the plaintiff’s letter of apology admitting she “should never have posted the photograph”.

Her claim went before a federal judge, who ruled (Huffington Post) against the college and noted that “I’m an uptight guy and I’m not offended [by the picture]“.   He focused on the fact that the particular mother was not identifiable, that there was implied consent by the instructor and that the school’s response was overkill, which denied the student due process.

Most of the opinions on these events involve criticism of the school.  Here is an interesting comment from blogger Eric Stoller (insidehighered):

I wonder if students at JCCC are taught how to use social media sites like Facebook in a manner that is respectful, ethical, and appropriate in terms of patient confidentiality. Posting and sharing all aspects of our daily lives via social media has become an accepted norm. As with most disciplines, students are not always inherently aware of what is and is not right. We have to teach them, not overly punish them when they make mistakes.

This story, which has been big in the news south of the border, raises issues about free expression of students and the power of educational authorities to take action against students for non-academic off-campus behavior.  My guess is that judges will eventually frown upon students arguing that schools should stay away from their online profiles, when those profiles are so easily accessible and the material posted there may be inflammatory and linked to the schools.  The Pridgen decision (see posts here and here) involving the University of Calgary is one example of a recent case that universities are looking to in an attempt to figure out what their response should be to Facebook posts by students that involve their educational experience.

There are several lessons, among others, that can be taken away from this story:

  • Privacy Is Dead, and You Killed It:  Students have to treat Facebook as a professional and educational hazard.  No matter who broad or narrow your class of “friends”, students should expect that anything they post anywhere on the internet may eventually be quoted in major news media.  It may also be taken (or mistaken, as the case may be) by an educational institution or employer as a reason to adopt certain measures against you.  Courts, like in the Pridgen decision, show an appreciation for the nature of interaction and communication on social media (i.e. it’s not exactly Oscar Wilde’s greatest hits), but if you do not want to attract attention, do not show your underwear, so to speak, in the public domain.
  • Students Are in for the Long Haul:  Courts understand that actions by educational institutions can severely impair a student’s ability to earn a livelihood, particular when the internet makes any incident – no matter that the context – almost impossible to keep off the radar of potential future employers.
  • Consider the Legal and Non-Legal Sides of Things:  The college may have overreacted and thus violated the student’s rights, but that doesn’t mean 10 years from now a smartphone-carrying mom-to-be in labour googling the names of attending nurses and physicians (I’ve seen it happen!) will be pleased to learn about these sorts of Facebook hijinks.

We – lawyers, academics, everyone! – are still trying to come to grips with the new reality imposed on us and what that means in terms of our rights and obligations.  If you want to stay out of trouble, tread carefully.

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