The Facebook Standard: Minnesota Supreme Court lowers speech protections for some college students
Months after the Minnesota Supreme Court held that public universities can restrict the speech of students enrolled in “professional programs,” First Amendment advocates and Minnesota students continue to analyze the broader implications of the ruling.
The June 20 decision in Tatro v. University of Minnesota was the first time a state Supreme Court addressed what speech rights college students have away from campus.
The case raised the possibility that colleges would be given broad power to discipline students for posts on social networking sites. Some even wanted the court to import the well-known Hazelwood high school censorship case to higher education. And though that particular standard was rejected, it’s likely to resurface in the future, according to Jane Kirtley, professor in the University of Minnesota’s School of Journalism and Mass Communication.
The caseThe case originated in 2009 when Amanda Tatro, a former student in the University of Minnesota’s mortuary science program, posted a series of eyebrow-raising statuses on Facebook about her work in the program. The posts, which Tatro described as “satirical commentary and violent fantasy,” prompted an investigation into whether Tatro violated her program’s professional code of conduct.
Tatro, a junior at the time, was enrolled in three laboratory classes in the program, one of which included human cadavers for teaching and research. At the beginning of the course, students were given an orientation, a set of professional guidelines to follow as part of the Anatomy Bequest Program, the entity that supplied the human cadavers for the lab, and a class syllabus including lab rules.
Among the anatomy lab rules, students were allowed to have “respectful and discreet” conversations about the cadaver dissection, but “blogging” about the lab – and the work involved – was prohibited. If a student did not adhere to these rules, the code warned, they could be evicted from the lab and course. Tatro signed a disclosure form to acknowledge the rules of conduct in order to begin the course.
Throughout November and December 2009, Tatro posted commentary via Facebook about her donor body and about her work.
Among other things, Tatro wrote a status update saying she “gets to play, I mean dissect, Bernie today.” Bernie was the name she assigned to the cadaver her lab group was working with, she said.
Later, Tatro wrote she wanted to “stab a certain someone” in the throat with a trocar – a long, needle-like embalming tool used to remove gases and fluid from the body – and that she would spend the evening updating her “Death List No. 5.”
That “certain someone” referred satirically to an ex-boyfriend who broke up with her the night before, she later said, and she knew he would see it and know that she was angry. “Death List No. 5” was a reference to her favorite movie, Kill Bill.
These posts, along with several others, prompted another student to report Tatro to the director of the program, and a police investigation followed soon after. The director, according to the Supreme Court opinion, said the staff members “were very much concerned for their safety.” The campus police, however, found no crime had been committed.
At the end of the term, Tatro received a C in the course and an email notifying her that a formal complaint had been launched with the Office of Student Conduct and Academic Integrity.
Tatro challenged the complaint, saying she used jokes and humor to relieve anxiety and to “stave off depression due to her unique life circumstances.” She said her posts were intended for her friends and family, who understood her morbid humor. She said she realized her classmates might have seen the status updates, but she never intended to scare anyone.
She recognized that students could misunderstand her humor and also acknowledged the prohibition on blogging in the course rules. She said she didn’t know “blogging” included social media, like Facebook.
But in April 2010, the Campus Committee on Student Behavior ruled Tatro’s comments to be “disrespectful, unprofessional, and reasonably interpreted as threatening,” according to court documents.
The panel assigned several punishments, including changing her C to a failing grade, and requiring her to write a letter to faculty members and enroll in a clinical ethics course. She was also placed on academic probation for the remainder of her undergraduate career.
After the university provost upheld these sanctions, Tatro appealed her case to the state Court of Appeals, which in July 2011 ruled the university did not violate Tatro’s First Amendment rights when it imposed the punishments.
The appeals court reasoned that the standard set in Tinker v. Des Moines Independent Community School District applies to college students’ off-campus speech.
Tinker, a 1969 Supreme Court case, held that schools may limit or discipline student expression only if it would create a “substantial disruption” of school activities.
However, First Amendment advocates and Tatro’s lawyer, Jordan Kushner, argued that Tinker should not apply to the college level.
During February arguments before Minnesota’s highest court, University of Minnesota General Counsel Mark Rotenberg said the court should apply Hazelwood School District v. Kuhlmeier, a 1988 decision that states a school may limit school sponsored, curricular speech as long as those restrictions are related to “legitimate pedagogical concerns.”
He said the university had two main educational concerns: an interest in teaching professional behavior to future morticians and embalmers, and a fear the bequest program would lose the trust of donors if the actions went unpunished.
Kushner argued, however, that public university students should have the same free speech rights as members of the general public in regard to Facebook posts. He said her status updates did not constitute “true threats,” as she did not intend to carry out violent plans. She was just “venting random thoughts,” he said.
But the Supreme Court decision rejected both arguments, as well as the appellate court’s view from the year prior. Creating its own new standard, the court held that 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.”
The court then unanimously ruled that Tatro violated the standards of the program as well as the state definition of unprofessional conduct in mortuary science, as she failed to treat the donor body with respect and dignity. The university’s discipline was upheld.
While creating a First Amendment standard for students in “professional programs,” the court did not announce a general rule for off-campus speech by college students. It also did not address the issue of whether Tatro’s comments represented “true threats” – a recognized exception to the First Amendment prior to this case.
Rotenberg released a statement applauding the decision shortly after its release.
“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 wrote. “To be successful, our students need to learn and practice a high degree of discretion and sensitivity in speaking about their work.”
Kushner said the ruling was disappointing. He said Tatro shouldn’t have had to surrender her free speech because she was enrolled in a professional program.
Kushner questioned where the lines in discretion are drawn, saying, “If a professional student raises concerns or talks about their experience, are they in danger of violating the standards? If a law student wants to talk about a client or hints at a case without revealing it, could they get in trouble?”
Students have the same questions, said Katherine Lymn, managing editor of The Minnesota Daily, the university’s student newspaper. Lymn has covered a number of stories about the case since its start.
Lymn said the newspaper started a Twitter discussion after arguments were first heard by the Supreme Court in February. She said opinions were varied, with some students concerned about the case and others unconcerned.
“A lot of people were alarmed because they had never thought about their university standing enrollment colliding with their social media,” she said. “Others thought this was a completely isolated incident.”
Kirtley said from a faculty perspective, she heard a number of students – particularly journalism students – express interest in the case and the ramifications it would have.
“Students were anxious about the notion that, even if the university wasn’t overtly monitoring what they were doing, at least they were vulnerable to action if somebody reported something that was posted on their social media site,” she said.
Kirtley said it will be interesting to see what they say when class resumes, since school was out for summer when the decision was announced.
The unclear scope of the ruling has First Amendment advocates, including the Student Press Law Center, focusing on the bigger picture. SPLC Executive Director Frank LoMonte, for example, called the ruling a mixed result.
“The First Amendment dodged a bullet today,” LoMonte said after the opinion was released. “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.”
Kirtley agreed, saying, “The Supreme Court panel wasn’t willing to go as far down the road of trying to control off-campus speech as the university and supporters asked of it, and that is very important.”
She said the outcome is not as bad as it could have been and offered a narrow decision.
“The one negative aspect is the fact that on the one hand, it’s good that they tied it so closely to the professional conduct rules because that would, arguably, limit these types of sanctions to the situations where there’s a clearly defined set of standards,” she said. “On the other hand, there are more and more disciplinary fields that have codes and some are more formal than others. In the areas of journalism, for example, it has codes of ethics that may not be universally accepted.”
Kirtley said her concern is that future courts will extend this to encompass more informal codes of ethical standards, but LoMonte said the decision may be carefully worded enough to avoid this.
The decision is only binding precedent in Minnesota – and even there, only for cases brought in state courts. The more likely impact is that other state courts could use the ruling, the first of its kind, as a guide in future cases.
“I have to say that, given the number of universities that took part in the litigation as friends-of-court briefs in support of the university, this has been a closely-watched decision on the part of universities across the country,” Kirtley said. “They could be looking for guidance so they could utilize these provisions on their own campuses.”
Several questions remain unanswered after the court announced its new standard. For example, given that the ruling is limited to students in “professional programs” – what constitutes a professional program? Some see rule applying only to students in medical fields, and perhaps law students. However, Rotenberg suggested after the ruling that it might be broad enough to include “students in a host of professions — including medicine, law, nursing, law enforcement, social work, teaching, and many others.”
The decision allows for punishment only under rules directly related to “established professional conduct standards.” Also unclear is how standards become established. The standards in Tatro came from a state law – but would a professional organization’s ethical guidelines, such as the Society of Professional Journalists Code of Ethics, carry the same weight?
Kirtley said she would like to be optimistic and say the problem won’t leak outside of Minnesota, but it’s unlikely “given the proliferation of social media and the concern universities have about students using it.”
Kushner said Tatro had plans to appeal the decision to the U.S. Supreme Court, but just a week after the decision was released, Tatro suddenly died.
The Hennepin County Medical Examiner’s office confirmed Amanda Rand – Tatro’s name after her marriage – died June 26. Her cause of death was undetermined.
Though unclear if it is connected with her death, Kushner noted in a legal brief that Tatro suffered from a “debilitating central nervous system disease.”
Lymn said through her experience writing the case updates and Tatro’s obituary, she learned what an impressive person Tatro was. She noted Tatro’s dedication to the case, saying other students probably would have given up long before Tatro did.
In a Feb. 13 story in The Minnesota Daily, Tatro recognized that drive.
“I’ll fight this for the rest of my life,” Tatro told the Daily. “They started it, and I’ll finish it.”
By Sydni Dunn, SPLC staff writer.
Fall 2012, reports
In our June podcast: Legal experts Jane Kirtley and Raleigh Levine discuss the Minnesota Supreme Court’s ruling in Tatro, a significant decision for college student speech rights and off-campus expression.