Minn. high court: University can discipline student for online cadaver comments

Speech that violates certain professional conduct standards not protected

MINNESOTA — The Minnesota Supreme Court held Wednesday that public universities can restrict the speech of students in “professional programs” when the program has rules consistent with established professional standards.

The decision, which has drawn mixed reactions from First Amendment advocates, marks the first time that a state Supreme Court has considered the question of what off-campus speech rights a college student has.

The ruling — which comes in the case of Tatro v. University of Minnesota — affirms a state appellate court decision from July 2011 but departs from the rationale that the lower court used to arrive there.

The case centers around a series of Facebook posts made in late 2009 by Amanda Tatro, a former student in the University of Minnesota’s mortuary science program.

Among other things, Tatro wrote that she was looking forward to stabbing “a certain someone in the throat” with a trocar — an embalming tool that is used to remove gases and fluids from the body. In her testimony, Tatro explained that “a certain someone” satirically referred to an ex-boyfriend who had broken up with her the night before, and that her friends on Facebook would understand the reference.

She also wrote in another post that she “gets to play, I mean dissect, Bernie today.”

Bernie was the name Tatro had assigned to the donor body on which she was working.

The posts prompted a classmate to bring Tatro’s Facebook activity to the school’s attention, and a police investigation was subsequently launched. Although the police found no crime had been committed, a panel of the campus committee on student behavior concluded in April 2010 that Tatro had violated the student conduct code prohibiting threatening conduct.

The committee assigned several punishments, including giving Tatro a failing grade in her anatomy-laboratory class and placing her on academic probation for the remainder of her undergraduate career. Those sanctions were later upheld by the university provost.

The state Supreme Court on Wednesday agreed with the Minnesota Court of Appeals that the university had not violated Tatro’s First Amendment rights when it imposed disciplinary sanctions following the Facebook posts.

In reaching its decision last year, the appellate court reasoned that the standard set in Tinker v. Des Moines Independent Community School District applies to public university students’ off-campus speech.

Tinker, a 1969 Supreme Court case, held that speech may be restricted if it is illegal or could cause a “substantial disruption” of school activities.

When arguing in front of the state high court, the University of Minnesota contended that the court should apply the Hazelwood School District v. Kuhlmeier standard to govern off-campus speech. Hazelwood, a 1988 Supreme Court decision, provides far more leeway for school administrators to curb student expression, essentially holding that a school may limit speech as long as the limitations are related to “legitimate pedagogical concerns.”

Tatro, on the other hand, argued that public university students should be entitled to the same free speech rights as members of the general public with regard to Facebook posts. In so doing, she said that her posts did not constitute “true threats,” which refer to statements in which the speaker communicates a clear intent to commit a violent, unlawful act.

The court on Wednesday disagreed with both parties, as well as with the appellate court’s application of Tinker. It instead ruled that, in unique disciplines like the university’s mortuary science program, “a university does not violate the free speech rights of a student enrolled in a professional program when the university imposes sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.”

In crafting this decision, the court avoided weighing in on the still-unanswered question of what standard should be used to govern off-campus speech by college students. It instead emphasized that the unique nature of the mortuary science program — and Tatro’s violation of the standards that form the foundation of the program — was enough to justify the discipline.

“Tying the legal rule to established professional conduct standards limits a university’s restrictions on Facebook use to students in professional programs and other disciplines where student conduct is governed by established professional conduct standards,” Associate Justice Helen Meyer wrote for the unanimous 5-0 panel. “And by requiring that the restrictions be narrowly tailored and directly related to established professional conduct standards, we limit the potential for a university to create overbroad restrictions that would impermissibly reach into a university student’s personal life outside of and unrelated to the program.”

Applying this standard, the court then held that Tatro had violated academic program rules, as well as a state statute that defines unprofessional conduct in the field of mortuary science as the failure to treat the body of the deceased, or the family or relatives of the deceased, with dignity and respect. 

“In this case, the university is not sanctioning Tatro for a private conversation, but for Facebook posts that could be viewed by thousands of Facebook users and for sharing the Facebook posts with the news media,” Meyer wrote. “Accordingly, we conclude that the university’s sanctions were grounded in narrowly tailored rules regulating widely disseminated Facebook posts.”

Because the court found that Tatro had violated the program’s professional conduct standards, it wrote that it need not address the “true threat” aspect of her argument.

Jordan Kushner, Tatro’s attorney, was disappointed with the outcome of Wednesday’s decision.

“It’s unfortunate that the court didn’t recognize her First Amendment rights,” he said. “They seemed to suggest that somehow, because she goes to a professional school, she gives up those rights while she’s in school.”

While Kushner does not believe that Tatro’s posts violated the mortuary science program standards, he did acknowledge that Wednesday’s decision was preferable to the precedent set by the appellate court. 

He said that the “politically inflammatory nature” of Tatro’s speech may have made it particularly difficult for the court to side with her. He and Tatro have not yet decided whether they will petition the U.S. Supreme Court for review, Kushner added.

Mark Rotenberg, general counsel for the university, applauded the decision.

“This important decision affirms the university’s authority to establish and enforce rules that train our students in the professional ethics and norms they will need to follow to be successful in their chosen profession,” he said in a statement. “To be successful, our students need to learn and practice a high degree of discretion and sensitivity in speaking about their work.”

Frank LoMonte, executive director of the Student Press Law Center, believes Wednesday’s decision is a “mixed result.”

“The First Amendment dodged a bullet today,” LoMonte said. “The University of Minnesota was out to essentially wipe the First Amendment off the books for college students, and the Minnesota Supreme Court stopped them in their tracks.”

That “bullet,” LoMonte said, was the possible application of Hazelwood as the standard for off-campus speech by college students. The court rejected that standard, and also cast doubt on the applicability of Tinkerin similar situations, LoMonte said.

Though he acknowledged that the use of “established professional conduct standards” in a free speech ruling may invite competing interpretations, he believes that Wednesday’s opinion was worded carefully enough to restrict other courts from applying it beyond fields that have formalized standards, such as medicine and law.

The decision was “definitely a narrow carve-out that seems only to impact a small subset of students,” LoMonte said, pointing to the “reluctance of this court and others to stake out a global standard that applies to all online, off-campus speech.”

He was most disappointed with the latter part of the ruling, which emphasized that the consequences imposed on Tatro were not particularly severe when compared to the prospect of suspension or expulsion.

“There’s no way under the First Amendment that the relative mildness of the punishment matters,” LoMonte said. “If the school is trying to deter you from speaking, then it’s an ample violation of the First Amendment.”

He believes it would be worth trying to appeal the case to the Supreme Court, although remains doubtful the Court would take it, given the lack of existing case law on off-campus speech among lower courts.

Though Wednesday’s decision is binding only to students in Minnesota who bring up claims in state court, LoMonte said the opinion could nonetheless be persuasive to other courts because it is the first to address the off-campus speech issue in college.

Decades ago, LoMonte added, a decision like Wednesday’s would be considered a loss by the First Amendment community. He believes it is a sign of the times that such a ruling is a cause for slight celebration today.

“It’s a sad reality that in today’s climate, a narrow defeat is going to feel like it’s a victory,” LoMonte said. “We’re essentially celebrating the fact that schools didn’t do as much damage to First Amendment rights as they wanted to, and that’s unfortunate.”

By Seth Zweifler, SPLC staff writer

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