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Kieran Bhattacharya was slated to graduate from University of Virginia (UVA) Medical School in 2021. But in late 2018, he was suspended. In early 2019, the University Threat Assessment Team went a step further, issuing Mr. Bhattacharya a no-trespass warning.
Mr. Bhattacharya claims the unraveling of his medical training was because of questions he asked at a UVA-hosted panel on microaggressions that took place 1 month before his suspension. His attorneys argue that, after making some admittedly less-than-collegial statements at a forum, the institution branded him as a threat. The school counters that Mr. Bhattacharya had a pattern of concerning, unprofessional behavior. The matter will now be settled in court.
UVA initially attempted to have Mr. Bhattacharya’s suit thrown out. A federal judge did dismiss three of four counts; however, he also ruled the lawsuit could move forward on the grounds that Mr. Bhattacharya’s First Amendment right to free speech was infringed.
Supporters claim that Mr. Bhattacharya was a student in good standing with the university, until he spoke publicly at the panel. They say the discipline he’s faced for those remarks is an egregious breach of free speech. Several experts say his case highlights the use – or rather misuse – of professionalism policies to undermine student freedoms and valuable discourse.
UVA argues that it’s not so simple and that the facts considered by the judge this spring were only part of the story. According to the defense, Mr. Bhattacharya’s side leaves out key details leading up to his suspension. The institution says Mr. Bhattacharya did and said things that provoked medical school officials to question the safety of the campus and his fitness to practice medicine. This news organization attempted to contact Mr. Bhattacharya several times through his attorneys and did not receive a response.
What happened at the microaggression panel
On this, both parties agree: A panel on microaggressions took place on Oct. 25, 2018. Mr. Bhattacharya, then a 2nd-year UVA medical student, was the first volunteer to speak when the floor was opened for questioning.
“Thank you for your presentation,” said Mr. Bhattacharya, according to an audio recording of the event. “I had a few questions, just to clarify your definition of microaggressions.” He then asked his first question: “Is it a requirement, to be a victim of microaggression, that you are a member of a marginalized group?”
The presenter, Beverly Colwell Adams, PhD, associate professor emeritus in the department of psychology and previously the assistant dean of UVA’s College of Arts and Sciences, said it was not. But before she could go on to explain, Mr. Bhattacharya interrupted, speaking quickly. “But in the definition, it just said you had to be a member of a marginalized group, in the definition you used on the last slide. So that’s contradictory.” Dr. Adams responded. “What I had there is kind of the generalized definition,” she said. “In fact, I extend it beyond that.”
Mr. Bhattacharya asked a second question – to which Dr. Adams responded – about defining a marginalized group. Then, during a third question about differentiating between microaggressions and unintentional rude statements, Mr. Bhattacharya sped up again, repeating some of Dr. Adams’ own presentation back to her. He then asked if she had done any other research on microaggression, after calling the evidence she provided “one anecdotal case.” Dr. Adams responded with an example.
Mr. Bhattacharya’s fourth question was then intercepted by a fellow panelist, Sara Rasmussen, MD. She offered an anecdote about her own experience with microaggression, as a person from rural West Virginia. She offered some advice on understanding the impact of your actions and then advised, “You have to learn to uncouple the intent of what you’re saying and the impact it has on the audience.”
Mr. Bhattacharya briefly disagreed with Dr. Rasmussen, and then called the evidence Dr. Adams presented “anecdotal” a second time. At that point, Dr. Rasmussen interrupted him to say that Dr. Adams had offered “a lot of citations from the literature” and then called on another student to ask a question.
In total, Mr. Bhattacharya engaged with the panel for just over 5 minutes. He is now arguing in court that those 5 minutes forever changed his life.
Blindsided
After the event, according to court documents, Nora Kern, MD, and one of the panelists filed a professionalism concern card about Mr. Bhattacharya’s discourse. “This student asked a series of questions that were quite antagonistic toward the panel. He pressed on and stated one faculty member was being contradictory. His level of frustration/anger seemed to escalate until another faculty member defused the situation by calling on another student for questions,” Dr. Kern wrote on the card that was later included in Mr. Bhattacharya’s case filing.
According to Regina Rini, PhD, Canada research chair in philosophy of moral and social cognition at York University in Toronto, there are two layers to Mr. Bhattacharya’s discussion with the panel. She told this news organization that the first level is the content of the conversation: “His very first question was a very reasonable one.” Since the 1970s, when Chester Pierce first coined the term microaggression, most experts have agreed that the action must be directed at a person within a marginalized group. “It sounds like the presenter has a nuanced view,” Dr. Rini said. She added that his “was a fair question to ask.”
However, Dr. Rini said the second layer – the way conversation took place – is a separate concern. “Maybe two rounds of questions later, he starts speaking quickly” and fires off multiple questions one after the other, when asking if Dr. Adams had any evidence, and called her support anecdotal, Dr. Rini said. “That’s not a cooperative attempt to hear an answer.”
“He’s a little antagonistic,” Alana Nichols, JD, MD, attorney and a medical pediatrics intern at the University of Alabama at Birmingham, said after listening to the recording. “He did sound like he had an agenda and was not being receptive to what they were saying.” However, Dr. Nichols said, “What brought me pause as someone in medicine was the way it escalated.”
After Dr. Kern filed the professionalism concern card, two faculty members contacted Mr. Bhattacharya. Christine Peterson, MD, assistant dean for medical education, emailed to ask if he wanted to discuss how to navigate uncomfortable conversations and how to cope with “unintended consequences of conversations.” The day after the panel, John Densmore, MD, associate dean for admissions and student affairs, emailed Mr. Bhattacharya, asking to meet the following week.
Mr. Bhattacharya met with both deans. Dr. Peterson only briefly mentioned the panel. Dr. Densmore didn’t at all, according to court documents. Dr. Densmore also didn’t mention the professionalism concern card to Mr. Bhattacharya. However, the Academic Standards and Achievement Committee discussed it about 2 weeks later, at their monthly meeting.
Dr. Kern was the only voting member present who actually witnessed the microaggression panel. Dr. Peterson was there as a guest. The committee voted unanimously to send Mr. Bhattacharya a letter, reminding him of the importance of showing respect to everyone. The letter was sent the following day, Nov. 14, 2018. Mr. Bhattacharya still had no knowledge of the professionalism concern card.
On Nov. 26, Dr. Densmore sent Mr. Bhattacharya an email that read: “We were notified by the Dean of Students Office that you were heading back to Charlottesville. You will need to be seen by CAPS [Counseling and Psychological Services] before you can return to classes.”
On Nov. 27, court records show Mr. Bhattacharya emailed Dr. Densmore, questioning the school’s ability to mandate psychiatric evaluation. The decision was reinforced with an email from the then senior associate dean for education at UVA Medical School. Mr. Bhattacharya was not permitted to return to class without the evaluation.
“If I were in his situation, I would feel kind of blindsided,” Dr. Nichols said. Mr. Bhattacharya met with two deans immediately after the event, during which he said his conduct with the panel was barely or not at all mentioned. To him, the situation could well have seemed to be over, Dr. Nichols said. In her opinion, as a lawyer and doctor in training, the situation “escalated very quickly and not very transparently.”
More than microaggressions
UVA points to an entirely different timeline. In fact, the school claims that neither Mr. Bhattacharya’s statements at the panel nor the tone with which he spoke there had any bearing on the decision to suspend him.
According to court documents, UVA denies that Mr. Bhattacharya “ever faced discipline because of the content of [his] speech at the panel discussion.” It also denies that the mandate for psychological evaluation was related to or in any way triggered by his behavior at the panel discussion.
UVA’s official statement on the case states: “The student in question was dismissed from the School of Medicine after a series of incidents and repeated instances of erratic behavior that raised security concerns as well as questions about his professionalism and fitness to practice medicine.”
The university cites two such incidents. The first is a meeting with Dr. Densmore at which Mr. Bhattacharya’s behavior was so concerning that he was escorted to the counseling center. After meeting with the counselor, Mr. Bhattacharya was involuntarily hospitalized afterward. At a second meeting with Dr. Densmore, UVA’s filing alleges that Mr. Bhattacharya’s behavior was so “erratic, aggressive, and concerning” that Dr. Densmore called the police. The school also cites a second involuntarily hospitalization and a restraining order against Mr. Bhattacharya by his girlfriend, a fellow medical student, as reasons for his suspension.
Mr. Bhattacharya’s girlfriend, Angel Hsu, a recent graduate of UVA medical school, has since been added to the list of defendants. Mr. Bhattacharya’s attorneys have called her a third-party coconspirator, working with Dr. Peterson and Dr. Densmore to have Mr. Bhattacharya removed from the university. Mr. Bhattacharya alleges that Dr. Hsu’s schemes started when he broke up with her the day before the microaggression panel. He claims that, during their relationship, she admitted to framing two other men for sexual misconduct during her undergraduate education at Emory. All of this is detailed in the 87-page document filed by Mr. Bhattacharya’s attorneys regarding his relationship with Dr. Hsu.
Alex Morey, JD, an attorney at the Foundation for Individual Rights in Education, said Mr. Bhattacharya is also alleged to have exhibited other threatening behavior on social media and in chat rooms. However, if Mr. Bhattacharya was suspended for reasons other than what he said at the panel, Ms. 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 Mr. Bhattacharya’s removal from the program. “We haven’t seen [that] yet,” she said.
In a statement sent to this news organization 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,” Ms. Morey said about Mr. 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 Mr. Bhattacharya suspended. “Clearly it’s subjective,” Dr. Krupat said. And “there’s an ever-widening gray area” when it comes to these policies.
In a 2020 study of 108 medical graduates, Dr. 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.
Dr. 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 Mr. Bhattacharya, then the answer may be no, Dr. 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 Dr. 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.” Dr. 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, Ms. Morey sees it as cut-and-dried. “It’s a pretty clear First Amendment violation,” she said in an interview. “It’s been one of the more egregious cases we’ve seen lately.”
There are exceptions to free speech on college campuses, Ms. 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, Mr. Bhattacharya’s counsel is arguing that the faculty essentially turned the program over to the students. According to Ms. Morey, because UVA hasn’t been able to prove that Mr. 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,” Ms. 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,” Ms. Morey said.
However, Dr. 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.
Dr. 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.
A version of this article first appeared on Medscape.com.
Kieran Bhattacharya was slated to graduate from University of Virginia (UVA) Medical School in 2021. But in late 2018, he was suspended. In early 2019, the University Threat Assessment Team went a step further, issuing Mr. Bhattacharya a no-trespass warning.
Mr. Bhattacharya claims the unraveling of his medical training was because of questions he asked at a UVA-hosted panel on microaggressions that took place 1 month before his suspension. His attorneys argue that, after making some admittedly less-than-collegial statements at a forum, the institution branded him as a threat. The school counters that Mr. Bhattacharya had a pattern of concerning, unprofessional behavior. The matter will now be settled in court.
UVA initially attempted to have Mr. Bhattacharya’s suit thrown out. A federal judge did dismiss three of four counts; however, he also ruled the lawsuit could move forward on the grounds that Mr. Bhattacharya’s First Amendment right to free speech was infringed.
Supporters claim that Mr. Bhattacharya was a student in good standing with the university, until he spoke publicly at the panel. They say the discipline he’s faced for those remarks is an egregious breach of free speech. Several experts say his case highlights the use – or rather misuse – of professionalism policies to undermine student freedoms and valuable discourse.
UVA argues that it’s not so simple and that the facts considered by the judge this spring were only part of the story. According to the defense, Mr. Bhattacharya’s side leaves out key details leading up to his suspension. The institution says Mr. Bhattacharya did and said things that provoked medical school officials to question the safety of the campus and his fitness to practice medicine. This news organization attempted to contact Mr. Bhattacharya several times through his attorneys and did not receive a response.
What happened at the microaggression panel
On this, both parties agree: A panel on microaggressions took place on Oct. 25, 2018. Mr. Bhattacharya, then a 2nd-year UVA medical student, was the first volunteer to speak when the floor was opened for questioning.
“Thank you for your presentation,” said Mr. Bhattacharya, according to an audio recording of the event. “I had a few questions, just to clarify your definition of microaggressions.” He then asked his first question: “Is it a requirement, to be a victim of microaggression, that you are a member of a marginalized group?”
The presenter, Beverly Colwell Adams, PhD, associate professor emeritus in the department of psychology and previously the assistant dean of UVA’s College of Arts and Sciences, said it was not. But before she could go on to explain, Mr. Bhattacharya interrupted, speaking quickly. “But in the definition, it just said you had to be a member of a marginalized group, in the definition you used on the last slide. So that’s contradictory.” Dr. Adams responded. “What I had there is kind of the generalized definition,” she said. “In fact, I extend it beyond that.”
Mr. Bhattacharya asked a second question – to which Dr. Adams responded – about defining a marginalized group. Then, during a third question about differentiating between microaggressions and unintentional rude statements, Mr. Bhattacharya sped up again, repeating some of Dr. Adams’ own presentation back to her. He then asked if she had done any other research on microaggression, after calling the evidence she provided “one anecdotal case.” Dr. Adams responded with an example.
Mr. Bhattacharya’s fourth question was then intercepted by a fellow panelist, Sara Rasmussen, MD. She offered an anecdote about her own experience with microaggression, as a person from rural West Virginia. She offered some advice on understanding the impact of your actions and then advised, “You have to learn to uncouple the intent of what you’re saying and the impact it has on the audience.”
Mr. Bhattacharya briefly disagreed with Dr. Rasmussen, and then called the evidence Dr. Adams presented “anecdotal” a second time. At that point, Dr. Rasmussen interrupted him to say that Dr. Adams had offered “a lot of citations from the literature” and then called on another student to ask a question.
In total, Mr. Bhattacharya engaged with the panel for just over 5 minutes. He is now arguing in court that those 5 minutes forever changed his life.
Blindsided
After the event, according to court documents, Nora Kern, MD, and one of the panelists filed a professionalism concern card about Mr. Bhattacharya’s discourse. “This student asked a series of questions that were quite antagonistic toward the panel. He pressed on and stated one faculty member was being contradictory. His level of frustration/anger seemed to escalate until another faculty member defused the situation by calling on another student for questions,” Dr. Kern wrote on the card that was later included in Mr. Bhattacharya’s case filing.
According to Regina Rini, PhD, Canada research chair in philosophy of moral and social cognition at York University in Toronto, there are two layers to Mr. Bhattacharya’s discussion with the panel. She told this news organization that the first level is the content of the conversation: “His very first question was a very reasonable one.” Since the 1970s, when Chester Pierce first coined the term microaggression, most experts have agreed that the action must be directed at a person within a marginalized group. “It sounds like the presenter has a nuanced view,” Dr. Rini said. She added that his “was a fair question to ask.”
However, Dr. Rini said the second layer – the way conversation took place – is a separate concern. “Maybe two rounds of questions later, he starts speaking quickly” and fires off multiple questions one after the other, when asking if Dr. Adams had any evidence, and called her support anecdotal, Dr. Rini said. “That’s not a cooperative attempt to hear an answer.”
“He’s a little antagonistic,” Alana Nichols, JD, MD, attorney and a medical pediatrics intern at the University of Alabama at Birmingham, said after listening to the recording. “He did sound like he had an agenda and was not being receptive to what they were saying.” However, Dr. Nichols said, “What brought me pause as someone in medicine was the way it escalated.”
After Dr. Kern filed the professionalism concern card, two faculty members contacted Mr. Bhattacharya. Christine Peterson, MD, assistant dean for medical education, emailed to ask if he wanted to discuss how to navigate uncomfortable conversations and how to cope with “unintended consequences of conversations.” The day after the panel, John Densmore, MD, associate dean for admissions and student affairs, emailed Mr. Bhattacharya, asking to meet the following week.
Mr. Bhattacharya met with both deans. Dr. Peterson only briefly mentioned the panel. Dr. Densmore didn’t at all, according to court documents. Dr. Densmore also didn’t mention the professionalism concern card to Mr. Bhattacharya. However, the Academic Standards and Achievement Committee discussed it about 2 weeks later, at their monthly meeting.
Dr. Kern was the only voting member present who actually witnessed the microaggression panel. Dr. Peterson was there as a guest. The committee voted unanimously to send Mr. Bhattacharya a letter, reminding him of the importance of showing respect to everyone. The letter was sent the following day, Nov. 14, 2018. Mr. Bhattacharya still had no knowledge of the professionalism concern card.
On Nov. 26, Dr. Densmore sent Mr. Bhattacharya an email that read: “We were notified by the Dean of Students Office that you were heading back to Charlottesville. You will need to be seen by CAPS [Counseling and Psychological Services] before you can return to classes.”
On Nov. 27, court records show Mr. Bhattacharya emailed Dr. Densmore, questioning the school’s ability to mandate psychiatric evaluation. The decision was reinforced with an email from the then senior associate dean for education at UVA Medical School. Mr. Bhattacharya was not permitted to return to class without the evaluation.
“If I were in his situation, I would feel kind of blindsided,” Dr. Nichols said. Mr. Bhattacharya met with two deans immediately after the event, during which he said his conduct with the panel was barely or not at all mentioned. To him, the situation could well have seemed to be over, Dr. Nichols said. In her opinion, as a lawyer and doctor in training, the situation “escalated very quickly and not very transparently.”
More than microaggressions
UVA points to an entirely different timeline. In fact, the school claims that neither Mr. Bhattacharya’s statements at the panel nor the tone with which he spoke there had any bearing on the decision to suspend him.
According to court documents, UVA denies that Mr. Bhattacharya “ever faced discipline because of the content of [his] speech at the panel discussion.” It also denies that the mandate for psychological evaluation was related to or in any way triggered by his behavior at the panel discussion.
UVA’s official statement on the case states: “The student in question was dismissed from the School of Medicine after a series of incidents and repeated instances of erratic behavior that raised security concerns as well as questions about his professionalism and fitness to practice medicine.”
The university cites two such incidents. The first is a meeting with Dr. Densmore at which Mr. Bhattacharya’s behavior was so concerning that he was escorted to the counseling center. After meeting with the counselor, Mr. Bhattacharya was involuntarily hospitalized afterward. At a second meeting with Dr. Densmore, UVA’s filing alleges that Mr. Bhattacharya’s behavior was so “erratic, aggressive, and concerning” that Dr. Densmore called the police. The school also cites a second involuntarily hospitalization and a restraining order against Mr. Bhattacharya by his girlfriend, a fellow medical student, as reasons for his suspension.
Mr. Bhattacharya’s girlfriend, Angel Hsu, a recent graduate of UVA medical school, has since been added to the list of defendants. Mr. Bhattacharya’s attorneys have called her a third-party coconspirator, working with Dr. Peterson and Dr. Densmore to have Mr. Bhattacharya removed from the university. Mr. Bhattacharya alleges that Dr. Hsu’s schemes started when he broke up with her the day before the microaggression panel. He claims that, during their relationship, she admitted to framing two other men for sexual misconduct during her undergraduate education at Emory. All of this is detailed in the 87-page document filed by Mr. Bhattacharya’s attorneys regarding his relationship with Dr. Hsu.
Alex Morey, JD, an attorney at the Foundation for Individual Rights in Education, said Mr. Bhattacharya is also alleged to have exhibited other threatening behavior on social media and in chat rooms. However, if Mr. Bhattacharya was suspended for reasons other than what he said at the panel, Ms. 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 Mr. Bhattacharya’s removal from the program. “We haven’t seen [that] yet,” she said.
In a statement sent to this news organization 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,” Ms. Morey said about Mr. 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 Mr. Bhattacharya suspended. “Clearly it’s subjective,” Dr. Krupat said. And “there’s an ever-widening gray area” when it comes to these policies.
In a 2020 study of 108 medical graduates, Dr. 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.
Dr. 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 Mr. Bhattacharya, then the answer may be no, Dr. 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 Dr. 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.” Dr. 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, Ms. Morey sees it as cut-and-dried. “It’s a pretty clear First Amendment violation,” she said in an interview. “It’s been one of the more egregious cases we’ve seen lately.”
There are exceptions to free speech on college campuses, Ms. 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, Mr. Bhattacharya’s counsel is arguing that the faculty essentially turned the program over to the students. According to Ms. Morey, because UVA hasn’t been able to prove that Mr. 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,” Ms. 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,” Ms. Morey said.
However, Dr. 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.
Dr. 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.
A version of this article first appeared on Medscape.com.
Kieran Bhattacharya was slated to graduate from University of Virginia (UVA) Medical School in 2021. But in late 2018, he was suspended. In early 2019, the University Threat Assessment Team went a step further, issuing Mr. Bhattacharya a no-trespass warning.
Mr. Bhattacharya claims the unraveling of his medical training was because of questions he asked at a UVA-hosted panel on microaggressions that took place 1 month before his suspension. His attorneys argue that, after making some admittedly less-than-collegial statements at a forum, the institution branded him as a threat. The school counters that Mr. Bhattacharya had a pattern of concerning, unprofessional behavior. The matter will now be settled in court.
UVA initially attempted to have Mr. Bhattacharya’s suit thrown out. A federal judge did dismiss three of four counts; however, he also ruled the lawsuit could move forward on the grounds that Mr. Bhattacharya’s First Amendment right to free speech was infringed.
Supporters claim that Mr. Bhattacharya was a student in good standing with the university, until he spoke publicly at the panel. They say the discipline he’s faced for those remarks is an egregious breach of free speech. Several experts say his case highlights the use – or rather misuse – of professionalism policies to undermine student freedoms and valuable discourse.
UVA argues that it’s not so simple and that the facts considered by the judge this spring were only part of the story. According to the defense, Mr. Bhattacharya’s side leaves out key details leading up to his suspension. The institution says Mr. Bhattacharya did and said things that provoked medical school officials to question the safety of the campus and his fitness to practice medicine. This news organization attempted to contact Mr. Bhattacharya several times through his attorneys and did not receive a response.
What happened at the microaggression panel
On this, both parties agree: A panel on microaggressions took place on Oct. 25, 2018. Mr. Bhattacharya, then a 2nd-year UVA medical student, was the first volunteer to speak when the floor was opened for questioning.
“Thank you for your presentation,” said Mr. Bhattacharya, according to an audio recording of the event. “I had a few questions, just to clarify your definition of microaggressions.” He then asked his first question: “Is it a requirement, to be a victim of microaggression, that you are a member of a marginalized group?”
The presenter, Beverly Colwell Adams, PhD, associate professor emeritus in the department of psychology and previously the assistant dean of UVA’s College of Arts and Sciences, said it was not. But before she could go on to explain, Mr. Bhattacharya interrupted, speaking quickly. “But in the definition, it just said you had to be a member of a marginalized group, in the definition you used on the last slide. So that’s contradictory.” Dr. Adams responded. “What I had there is kind of the generalized definition,” she said. “In fact, I extend it beyond that.”
Mr. Bhattacharya asked a second question – to which Dr. Adams responded – about defining a marginalized group. Then, during a third question about differentiating between microaggressions and unintentional rude statements, Mr. Bhattacharya sped up again, repeating some of Dr. Adams’ own presentation back to her. He then asked if she had done any other research on microaggression, after calling the evidence she provided “one anecdotal case.” Dr. Adams responded with an example.
Mr. Bhattacharya’s fourth question was then intercepted by a fellow panelist, Sara Rasmussen, MD. She offered an anecdote about her own experience with microaggression, as a person from rural West Virginia. She offered some advice on understanding the impact of your actions and then advised, “You have to learn to uncouple the intent of what you’re saying and the impact it has on the audience.”
Mr. Bhattacharya briefly disagreed with Dr. Rasmussen, and then called the evidence Dr. Adams presented “anecdotal” a second time. At that point, Dr. Rasmussen interrupted him to say that Dr. Adams had offered “a lot of citations from the literature” and then called on another student to ask a question.
In total, Mr. Bhattacharya engaged with the panel for just over 5 minutes. He is now arguing in court that those 5 minutes forever changed his life.
Blindsided
After the event, according to court documents, Nora Kern, MD, and one of the panelists filed a professionalism concern card about Mr. Bhattacharya’s discourse. “This student asked a series of questions that were quite antagonistic toward the panel. He pressed on and stated one faculty member was being contradictory. His level of frustration/anger seemed to escalate until another faculty member defused the situation by calling on another student for questions,” Dr. Kern wrote on the card that was later included in Mr. Bhattacharya’s case filing.
According to Regina Rini, PhD, Canada research chair in philosophy of moral and social cognition at York University in Toronto, there are two layers to Mr. Bhattacharya’s discussion with the panel. She told this news organization that the first level is the content of the conversation: “His very first question was a very reasonable one.” Since the 1970s, when Chester Pierce first coined the term microaggression, most experts have agreed that the action must be directed at a person within a marginalized group. “It sounds like the presenter has a nuanced view,” Dr. Rini said. She added that his “was a fair question to ask.”
However, Dr. Rini said the second layer – the way conversation took place – is a separate concern. “Maybe two rounds of questions later, he starts speaking quickly” and fires off multiple questions one after the other, when asking if Dr. Adams had any evidence, and called her support anecdotal, Dr. Rini said. “That’s not a cooperative attempt to hear an answer.”
“He’s a little antagonistic,” Alana Nichols, JD, MD, attorney and a medical pediatrics intern at the University of Alabama at Birmingham, said after listening to the recording. “He did sound like he had an agenda and was not being receptive to what they were saying.” However, Dr. Nichols said, “What brought me pause as someone in medicine was the way it escalated.”
After Dr. Kern filed the professionalism concern card, two faculty members contacted Mr. Bhattacharya. Christine Peterson, MD, assistant dean for medical education, emailed to ask if he wanted to discuss how to navigate uncomfortable conversations and how to cope with “unintended consequences of conversations.” The day after the panel, John Densmore, MD, associate dean for admissions and student affairs, emailed Mr. Bhattacharya, asking to meet the following week.
Mr. Bhattacharya met with both deans. Dr. Peterson only briefly mentioned the panel. Dr. Densmore didn’t at all, according to court documents. Dr. Densmore also didn’t mention the professionalism concern card to Mr. Bhattacharya. However, the Academic Standards and Achievement Committee discussed it about 2 weeks later, at their monthly meeting.
Dr. Kern was the only voting member present who actually witnessed the microaggression panel. Dr. Peterson was there as a guest. The committee voted unanimously to send Mr. Bhattacharya a letter, reminding him of the importance of showing respect to everyone. The letter was sent the following day, Nov. 14, 2018. Mr. Bhattacharya still had no knowledge of the professionalism concern card.
On Nov. 26, Dr. Densmore sent Mr. Bhattacharya an email that read: “We were notified by the Dean of Students Office that you were heading back to Charlottesville. You will need to be seen by CAPS [Counseling and Psychological Services] before you can return to classes.”
On Nov. 27, court records show Mr. Bhattacharya emailed Dr. Densmore, questioning the school’s ability to mandate psychiatric evaluation. The decision was reinforced with an email from the then senior associate dean for education at UVA Medical School. Mr. Bhattacharya was not permitted to return to class without the evaluation.
“If I were in his situation, I would feel kind of blindsided,” Dr. Nichols said. Mr. Bhattacharya met with two deans immediately after the event, during which he said his conduct with the panel was barely or not at all mentioned. To him, the situation could well have seemed to be over, Dr. Nichols said. In her opinion, as a lawyer and doctor in training, the situation “escalated very quickly and not very transparently.”
More than microaggressions
UVA points to an entirely different timeline. In fact, the school claims that neither Mr. Bhattacharya’s statements at the panel nor the tone with which he spoke there had any bearing on the decision to suspend him.
According to court documents, UVA denies that Mr. Bhattacharya “ever faced discipline because of the content of [his] speech at the panel discussion.” It also denies that the mandate for psychological evaluation was related to or in any way triggered by his behavior at the panel discussion.
UVA’s official statement on the case states: “The student in question was dismissed from the School of Medicine after a series of incidents and repeated instances of erratic behavior that raised security concerns as well as questions about his professionalism and fitness to practice medicine.”
The university cites two such incidents. The first is a meeting with Dr. Densmore at which Mr. Bhattacharya’s behavior was so concerning that he was escorted to the counseling center. After meeting with the counselor, Mr. Bhattacharya was involuntarily hospitalized afterward. At a second meeting with Dr. Densmore, UVA’s filing alleges that Mr. Bhattacharya’s behavior was so “erratic, aggressive, and concerning” that Dr. Densmore called the police. The school also cites a second involuntarily hospitalization and a restraining order against Mr. Bhattacharya by his girlfriend, a fellow medical student, as reasons for his suspension.
Mr. Bhattacharya’s girlfriend, Angel Hsu, a recent graduate of UVA medical school, has since been added to the list of defendants. Mr. Bhattacharya’s attorneys have called her a third-party coconspirator, working with Dr. Peterson and Dr. Densmore to have Mr. Bhattacharya removed from the university. Mr. Bhattacharya alleges that Dr. Hsu’s schemes started when he broke up with her the day before the microaggression panel. He claims that, during their relationship, she admitted to framing two other men for sexual misconduct during her undergraduate education at Emory. All of this is detailed in the 87-page document filed by Mr. Bhattacharya’s attorneys regarding his relationship with Dr. Hsu.
Alex Morey, JD, an attorney at the Foundation for Individual Rights in Education, said Mr. Bhattacharya is also alleged to have exhibited other threatening behavior on social media and in chat rooms. However, if Mr. Bhattacharya was suspended for reasons other than what he said at the panel, Ms. 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 Mr. Bhattacharya’s removal from the program. “We haven’t seen [that] yet,” she said.
In a statement sent to this news organization 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,” Ms. Morey said about Mr. 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 Mr. Bhattacharya suspended. “Clearly it’s subjective,” Dr. Krupat said. And “there’s an ever-widening gray area” when it comes to these policies.
In a 2020 study of 108 medical graduates, Dr. 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.
Dr. 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 Mr. Bhattacharya, then the answer may be no, Dr. 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 Dr. 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.” Dr. 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, Ms. Morey sees it as cut-and-dried. “It’s a pretty clear First Amendment violation,” she said in an interview. “It’s been one of the more egregious cases we’ve seen lately.”
There are exceptions to free speech on college campuses, Ms. 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, Mr. Bhattacharya’s counsel is arguing that the faculty essentially turned the program over to the students. According to Ms. Morey, because UVA hasn’t been able to prove that Mr. 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,” Ms. 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,” Ms. Morey said.
However, Dr. 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.
Dr. 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.
A version of this article first appeared on Medscape.com.