MINNESOTA — TheMinnesota Supreme Court held Wednesday that public universities can restrictthe speech of students in “professional programs” when the program has rulesconsistent with established professional standards.
The decision, which has drawn mixed reactions from FirstAmendment advocates, marks the first time that a state Supreme Court hasconsidered 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 courtdecision from July 2011 but departs from the rationale that the lower courtused to arrive there.
The case centers around a series of Facebook posts made inlate 2009 by Amanda Tatro, a former student in the University of Minnesota’smortuary science program.
Among other things, Tatro wrote that she was looking forwardto stabbing “a certain someone in the throat” with a trocar — an embalming toolthat is used to remove gases and fluids from the body. In her testimony, Tatroexplained that “a certain someone” satirically referred to an ex-boyfriend whohad broken up with her the night before, and that her friends on Facebook wouldunderstand the reference.
She also wrote in another post that she “gets to play, Imean dissect, Bernie today.”
Bernie was the name Tatro had assigned to the donor body onwhich she was working.
The posts prompted a classmate to bring Tatro’s Facebookactivity to the school’s attention, and a police investigation was subsequentlylaunched. Although the police found no crime had been committed, a panel of thecampus committee on student behavior concluded in April 2010 that Tatro hadviolated the student conduct code prohibiting threatening conduct.
The committee assigned several punishments, including givingTatro a failing grade in her anatomy-laboratory class and placing her onacademic probation for the remainder of her undergraduate career. Thosesanctions were later upheld by the university provost.
The state Supreme Court on Wednesday agreed with theMinnesota Court of Appeals that the university had not violated Tatro’s FirstAmendment rights when it imposed disciplinary sanctions following the Facebookposts.
In reaching its decision last year, the appellate courtreasoned that the standard set in Tinkerv. Des Moines Independent Community School District applies to publicuniversity students’ off-campus speech.
Tinker, a 1969Supreme Court case, held that speech may be restricted if it is illegal orcould cause a “substantial disruption” of school activities.
When arguing in front of the state high court, theUniversity of Minnesota contended that the court should apply the Hazelwood School District v. Kuhlmeierstandard to govern off-campus speech. Hazelwood,a 1988 Supreme Court decision, provides far more leeway for schooladministrators to curb student expression, essentially holding that a schoolmay limit speech as long as the limitations are related to “legitimatepedagogical concerns.”
Tatro, on the other hand, argued that public universitystudents should be entitled to the same free speech rights as members of thegeneral public with regard to Facebook posts. In so doing, she said that herposts did not constitute “true threats,” which refer to statements in which thespeaker communicates a clear intent to commit a violent, unlawful act.
The court on Wednesday disagreed with both parties, as wellas with the appellate court’s application of Tinker. It instead ruled that, in unique disciplines like theuniversity’s mortuary science program, “a university does not violate the freespeech rights of a student enrolled in a professional program when theuniversity imposes sanctions for Facebook posts that violate academic programrules that are narrowly tailored and directly related to establishedprofessional conduct standards.”
In crafting this decision, the court avoided weighing in onthe still-unanswered question of what standard should be used to governoff-campus speech by college students. It instead emphasized that the uniquenature of the mortuary science program — and Tatro’s violation of the standardsthat form the foundation of the program — was enough to justify the discipline.
“Tying the legal rule to established professional conductstandards limits a university’s restrictions on Facebook use to students inprofessional programs and other disciplines where student conduct is governedby established professional conduct standards,” Associate Justice Helen Meyerwrote for the unanimous 5-0 panel. “And by requiring that the restrictions benarrowly tailored and directly related to established professional conductstandards, we limit the potential for a university to create overbroadrestrictions that would impermissibly reach into a university student’spersonal life outside of and unrelated to the program.”
Applying this standard, the court then held that Tatro hadviolated academic program rules, as well as a state statute that definesunprofessional conduct in the field of mortuary science as the failure to treatthe body of the deceased, or the family or relatives of the deceased, withdignity and respect.
“In this case, the university is not sanctioning Tatro for aprivate conversation, but for Facebook posts that could be viewed by thousandsof Facebook users and for sharing the Facebook posts with the news media,”Meyer wrote. “Accordingly, we conclude that the university’s sanctions weregrounded in narrowly tailored rules regulating widely disseminated Facebookposts.”
Because the court found that Tatro had violated theprogram’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 theoutcome of Wednesday’s decision.
“It’s unfortunate that the court didn’t recognize her FirstAmendment rights,” he said. “They seemed to suggest that somehow, because shegoes to a professional school, she gives up those rights while she’s inschool.”
While Kushner does not believe that Tatro’s posts violatedthe mortuary science program standards, he did acknowledge that Wednesday’sdecision was preferable to the precedent set by the appellate court.
He said that the “politically inflammatory nature” ofTatro’s speech may have made it particularly difficult for the court to sidewith 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 authorityto establish and enforce rules that train our students in the professionalethics and norms they will need to follow to be successful in their chosenprofession,” he said in a statement. “To be successful, our students need tolearn and practice a high degree of discretion and sensitivity in speakingabout their work.”
Frank LoMonte, executive director of the Student Press LawCenter, 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 Amendmentoff the books for college students, and the Minnesota Supreme Court stoppedthem in their tracks.”
That “bullet,” LoMonte said, was the possible application ofHazelwood as the standard foroff-campus speech by college students. The court rejected that standard, andalso cast doubt on the applicability of Tinkerin similar situations, LoMonte said.
Though he acknowledged that the use of “establishedprofessional conduct standards” in a free speech ruling may invite competinginterpretations, he believes that Wednesday’s opinion was worded carefullyenough to restrict other courts from applying it beyond fields that haveformalized standards, such as medicine and law.
The decision was “definitely a narrow carve-out that seemsonly to impact a small subset of students,” LoMonte said, pointing to the“reluctance of this court and others to stake out a global standard thatapplies 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 particularlysevere when compared to the prospect of suspension or expulsion.
“There’s no way under the First Amendment that the relativemildness of the punishment matters,” LoMonte said. “If the school is trying todeter you from speaking, then it’s an ample violation of the First Amendment.”
He believes it would be worth trying to appeal the case tothe Supreme Court, although remains doubtful the Court would take it, given thelack of existing case law on off-campus speech among lower courts.
Though Wednesday’s decision is binding only to students inMinnesota who bring up claims in state court, LoMonte said the opinion could nonethelessbe persuasive to other courts because it is the first to address the off-campusspeech issue in college.
Decades ago, LoMonte added, a decision like Wednesday’swould be considered a loss by the First Amendment community. He believes it isa sign of the times that such a ruling is a cause for slight celebrationtoday.
“It’s a sad reality that in today’s climate, a narrow defeatis going to feel like it’s a victory,” LoMonte said. “We’re essentiallycelebrating the fact that schools didn’t do as much damage to First Amendmentrights as they wanted to, and that’s unfortunate.”
By Seth Zweifler, SPLC staff writer