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Feb 26, 2018
Alex Morey, JD, an attorney at the Foundation for Individual Rights in Education, said Bhattacharya is also alleged to have exhibited other threatening behavior on social media and in chat rooms. However, if Bhattacharya was suspended for reasons other than what he said at the panel, Morey said, the burden of proof is on the school. They'll need to prove that the incidents listed, and not his speech, are the motivation for Bhattacharya's removal from the program. "We haven't seen [that] yet," she said.

In a statement sent to Medscape by UVA Health Public Information Officer Eric Swensen, the school said, "It is worth noting, however, that the court's recent ruling is based only on the facts as alleged by the plaintiff and must accept all of those allegations as true at this stage of the proceedings."
Problems With Professionalism Policies
The case brings into focus concerns about professionalism policies in medical education. "Traditionally it's been assumed that a physician has certain values, attributes, and behaviors that constitute professionals, which, in some ways, boil down to inspiring trust in him or her," said Edward Krupat, PhD, associate professor of medicine at Harvard University.

However, many feel that these binding codes of student conduct allow institutions to inhibit civil rights under the guise of professionalism: A standard critics say is inconsistently and often ill-defined.

"They just didn't like what he said and the way he said it," Morey said about Bhattacharya. "That is not the same as someone engaging in behavior that fundamentally undermines the profession they are in."
UVA Health's professionalism policy prohibits conduct that is perceived as rude and says that a pattern of unprofessionalism — defined as three or more recorded events — or one egregious act of unprofessionalism can be punished with removal from the school. What remains to be seen is documented proof of the specific unprofessional or egregious acts that got Bhattacharya suspended. "Clearly it's subjective," Krupat said. And "there's an ever-widening gray area" when it comes to these policies.

In a 2020 study of 108 medical graduates, Krupat and his collaborators found that those who had to go before their review board for professionalism concerns as students were more than five times more likely undergo disciplinary review during residency. They were two times more likely to be sued or sanctioned during their practice.

Krupat said that a traditional approach would be to look at the list of documented offenses and ask, "Would this be your first choice for a physician?" If the facts the dean alleges are true of Bhattacharya, then the answer may be no, Krupat said, based on his limited familiarity with the case. However, he said the situation may be "more complex than the dean says."
What is unlikely, according to Krupat, is that medical staff were eager to quickly get rid of a student. In his experience, medical faculty often take extra precautions to understand, justify, and support medical students. There's even a term in the medical education literature to describe faculty's unrelenting tendency to stick with students: "failure to fail." Krupat finds it "highly unusual that someone would say something in a gray area and be asked to leave."

What a Ruling May Mean
Despite the many seemingly contradictory and gray areas, Morey sees it as cut-and-dried. "It's a pretty clear First Amendment violation," she told Medscape. "It's been one of the more egregious cases we've seen lately."

There are exceptions to free speech on college campuses, Morey said. Students have First Amendment rights; however, in the classroom setting, the professor and school also have the right to maintain an orderly environment. The panel opened the floor for questions. Thus, Bhattacharya's counsel is arguing that the faculty essentially turned the program over to the students. According to Morey, because UVA hasn't been able to prove that Bhattacharya's discourse caused a "material disruption," the First Amendment suit is moving forward.
In a Q&A, the school has essentially created a public forum," Morey said. "What they can't do is open a forum for public speech and punish the speech [they] don't like." She said that the courts have historically ruled that a student still has their rights.

"A ruling against Kieran Bhattacharya, in this case, would hugely undermine the First Amendment rights of professional students at every program across the country," Morey said.

However, Nichols said that there have also been cases where the judiciary chooses not to get involved with the self-governing of an individual institution. "It could be an uphill battle for the student," she said. If UVA can prove their claim that Bhattacharya's pattern of behavior — and not his commentary on microaggressions — is what put others at risk and was the cause of suspension, then the school's decision will likely hold.
Krupat said this case comes at a time when everyone — both students and faculty — feel like they are walking on eggshells. Power dynamics are rightfully being called into question but "a pendulum stuck at one end never just swings to the middle and stops," he said. Students are frightened that faculty will be insensitive. Faculty fear that if they give negative feedback they might be accused of bias. He does think this tension is "something that will resolve itself for the better in the future," he said.

The jury trial is currently set for early January 2022. In the meantime, First Amendment advocates are "heartened" that the judge allowed the case to proceed while those concerned with professionalism policies continue to closely watch what happens next.

Donavyn Coffey is a freelance journalist who covers health and the environment from her home in the Bluegrass. Her work has appeared in Popular Science, Insider, and SELF.
Always more to the story, almost like the dangerous insane hide behind freedumb of speech.