MINNESOTA — Apublic university can punish a student for off-campus speech if the speechsubstantially disrupts university operations, the Minnesota Court of Appealsruled Monday.
In a unanimous 3-0 decision, the court upheld the Universityof Minnesota’s discipline of Amanda Tatro, a former student in the school’smortuary science program, for a series of Facebook posts made in November andDecember 2009.
In one of the posts, Tatro wrote that she wanted to use atrocar — an embalming tool that removes gases and fluids from a body —from the school’s laboratory “to stab a certain someone in the throat.” Inanother post, she wrote that she “gets to play, I mean dissect, Bernie today.”
Bernie was the name Tatro had assigned to the donor body onwhich she was working.
Local police began investigating the statements a few daysafter a fellow mortuary science student brought the Facebook posts to theuniversity’s attention. Tatro was suspended from class until the conclusion ofthe investigation.
Although the police concluded that no crime had beencommitted, the university pushed forward, filing a formal complaint againstTatro on Dec. 29, 2009, in which it alleged that she had violated the school’sstudent conduct code.
A panel of the campus committee on student behavior found inApril 2010 that Tatro had violated the code. It assigned several academicdisciplinary measures.
Among other punishments, she was given a failing grade inher anatomy-laboratory class and was placed on academic probation for theremainder of her undergraduate career.
A university appeal committee subsequently upheld thosesanctions, prompting Tatro to take her case to the state appellate court onFirst Amendment grounds.
In its analysis of the free speech issues at hand, thecourt’s opinion centered on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District.In Tinker — which focused on therights of students to wear black armbands in protest of the Vietnam War — theCourt held that public junior high and high school students havea right to speak freely, with the exception of speech that is illegal or causesa substantial disruption to school activities.
Though Tatro’s attorney, Jordan Kushner, had argued that Tinker does not apply in an off-campusspeech setting for college students, Judge Louise Dovre Bjorkman disagreed in the court’s opinion.
“[We] rejectTatro’s contention that the Tinker substantialdisruption analysis does not apply in a university setting,” Bjorkman wrote.“We discern no practical reasons for such a distinction and note that othercourts have acknowledged Tinker’sbroad applicability to public education institutions.”
Frank LoMonte,executive director of the Student Press Law Center, said the court’sapplication of Tinker was troubling.
“It’s worrisometo see a court, without giving deep consideration, apply the Tinker standard to off-campus, onlinespeech just as if it was on-campus speech,” LoMonte said. “It’s not at allcertain to think that Tinker is thecorrect legal standard here and, in fact, there’s good reason to think it’s notthe correct standard.”
While Tinker dealt with a high school setting,LoMonte explained that a “relaxed version of Tinker” has been the standard most courts have applied whenaddressing on-campus speech at the collegiate level.
When it comes tooff-campus speech by college students, however, LoMonte said it is a differentmatter.
He said thatanybody in Tatro’s position should be held to the same “real-world FirstAmendment standard that any adult would.”
Kushner agreed.
“I don’t haveany doubt that this decision was very flawed in its legal reasoning and verydamaging to the principle of free speech,” he said. “The court based itsstandards on those applied to junior high and high school students … and Ithink it’s very problematic when there are no distinctions made betweenuniversity and grade school students.”
Within the next30 days, Kushner plans to petition the Minnesota Supreme Court to review thecase.
Since shepublished the Facebook posts in 2009, Tatro has maintained that her words wereintended as satire and literary expression.
At the campuscommittee on student behavior hearing, she testified that the post in which shediscussed stabbing somebody in the throat was referring to an ex-boyfriend whoviewed her Facebook profile frequently. The ex-boyfriend, she said, would haveunderstood her post in context.
The court didnot agree with Tatro’s argument.
“Whether or not Tatrointended her posts to be satire or mere venting does not diminish theuniversity’s substantial interest in protecting the safety of its students andfaculty and addressing potentially threatening conduct,” Bjorkman wrote in the court’s opinion. “Indeed, the realities of our timerequire that our schools and universities be vigilant in watching for andresponding to student behavior that indicates a potential for violence.”
Mark Rotenberg, general counsel for theuniversity, said he was “gratified” that the court affirmed the school’sdecision to discipline Tatro.
“It’s unfortunate that the student chose notonly to violate her written commitment to the program, but decided to exerciseextremely bad judgment in her threatening language,” he said. “Student freespeech rights, while broad under the First Amendment, do not include threatsthat would substantially disrupt the work of the university.”
During the proceedings, Kushner had argued that Tatro’s actions shouldbe subject to the “true threat” standard, which refers to statements in whichthe speaker communicates a clear intent to commit an unlawful violent act.
By choosing tobypass the issue of whether the speech constituted a true threat and insteadapply Tinker, LoMonte said the courteffectively rendered the police investigation moot.
“Once theexperts in law enforcement conclude that there is no threat, that should be theend of the discussion,” he said, explaining that the police are instructed touse the true threat standard in the context of off-campus speech by collegestudents. “If you are convinced Tinker isthe right standard, then you undermine the police’s investigation.”
When it comes tohumor and satire, LoMonte added that is impossible to enforce a zero-tolerancepolicy for jokes that reference violence — something he said the court wasdangerously close to establishing in its opinion.
“You just haveto look at movies like the Three Stooges’ … to see that violence is intrinsicto humor and has been a staple as long as humor has existed,” he said.
Though Monday’sdecision will become binding precedent in Minnesota if not overturned by ahigher court, it is one of the first published court opinions addressing the off-campusspeech rights of college and university students.
The legalstandard for off-campus speech, even in the high school setting, remainsunclear.
In June, the 3rd U.S. Circuit Court of Appeals — which has jurisdiction overPennsylvania, New Jersey and Delaware — concluded in Layshock v. Hermitage School District and J.S. v. Blue Mountain School District that high schooladministrators are limited in their ability to restrict off-campus studentspeech.
Blue Mountain School District hasconfirmed that it will appeal its case to the U.S. Supreme Court.
In April, however, the 2nd U.S. Circuit Court of Appeals held that a Connecticut high schoolwas constitutionally permitted to discipline former student Avery Doningerafter she called her administrators “douchebags” in a 2007 blog post.
Doninger’s attorney, Jon Schoenhorn, hasalso confirmed that he willask the Supreme Court to hear an appeal.
LoMonte said the future for student free speech rests infuture decisions like these addressing off-campus expression.
“If we start applying Tinkerto all forms of student speech — on campus and off campus — withoutreservation, it’s going to be difficult to find a stopping point,” he said. “Wehave to show that some time during a young person’s life, there’s anopportunity to enjoy the full benefits of American citizenship.”