In a troubling ruling (PDF) for speech on campus issued yesterday, the Minnesota Court of Appeals held that a public university student’s First Amendment rights are not violated by discipline meted out for social networking posts when such posts "materially and substantially disrupted the work and discipline of the university."
The facts of the case, Tatro v. University of Minnesota, are certainly unique, even within the always interesting realm of First Amendment law. University of Minnesota (UM) undergraduate student Amanda Tatro studies in the university’s mortuary sciences program. As part of the program’s coursework, Tatro and other students participate in "laboratory courses in anatomy, embalming, and restorative art." While taking these courses, which involve use of real cadavers donated to the university through its "anatomy-bequest program," Tatro penned a series of Facebook posts in November and December of 2009, discussing the experiences of her lab work:
[Amanda Beth Tatro] Gets to play, I mean dissect, Bernie today. Lets see if I can have a lab void of reprimanding and having my scalpel taken away. Perhaps if I just hide it in my sleeve. [Footnote 2: “Bernie” was the name Tatro gave to the cadaver/donor she was assigned to work on, and is derived from the film Weekend at Bernie’s.] …
[Amanda Beth Tatro] Is looking forward to Monday’s embalming therapy as well as a rumored opportunity to aspirate. Give me room, lots of aggression to be taken out with a trocar [a sharp instrument used during embalming].
[Amanda Beth Tatro] Who knew embalming lab was so cathartic! I still want to stab a certain someone in the throat with a trocar though. [Footnote 4: Tatro testified at the Campus Committee on Student Behavior hearing that she was referring to a man who had just broken up with her. She indicated that they talked on Facebook and she “knew he was going to see it” and would know “it was about him.”] Hmm.. perhaps I will spend the evening updating my “Death List # 5″ and making friends with the crematory guy. I do know the code….
[Amanda Beth Tatro] Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next week. I wish to accompany him to the retort. Now where will I go or who will I hang with when I need to gather my sanity? Bye, bye Bernie. Lock of hair in my pocket.
One of Tatro’s fellow mortuary sciences students saw the posts online and reported them to the university. In turn, the university contacted university police, who investigated Tatro’s posts and found that no crime had been committed. Tatro was held out of class while the investigation proceeded, and was allowed to return when it had concluded.
The repercussions of Tatro’s posts had not ended, however.
On December 29, 2009, Tatro was charged with violating the university’s student code of conduct: specifically, "[t]he complaint alleged Tatro engaged in threatening, harassing, or assaultive conduct, in violation of section V, subdivision 6, of the code, and that she violated subdivision 16 by engaging in conduct contrary to university rules related to the mortuary-science program, anatomy-laboratory course rules, and the rules listed on the anatomy-bequest-program disclosure form." In April 2010, Tatro was found responsible on both counts by a university judiciary panel, which imposed punishments including "giving Tatro a failing grade in her anatomy-laboratory class and requiring her to enroll in a clinical ethics course; write a letter to mortuary-science department faculty addressing the issue of respect within the department and profession; and complete a psychiatric evaluation. The CCSB also placed Tatro on academic probation for the remainder of her undergraduate career." Tatro’s appeals to both the provost’s appeal committe and former provost E. Thomas Sullivan were unsuccessful; in upholding the punishment, Sullivan characterized the comments as "disrespectful, unprofessional, and reasonably interpreted as threatening.”
Having exhausted her appeals within the university’s judicial system, Tatro brought her case to the Minnesota Court of Appeals.
On appeal, Tatro made several arguments. First, she contended that UM had overreached its authority by punishing her for off-campus conduct. The court struck down this argument, pointing out that "the code expressly authorizes the university to apply the code to students whose alleged off-campus conduct has an adverse effect on a substantial university interest and indicates potential danger or threat to the student or others":
This is a problematic conclusion for student speech.
Invoking an ominous (but unspecified) threat supplied by "the realities of our time," the court chose to forego an analysis of whether Tatro’s references to "aggression" and "wanting to ‘stab’ an unidentified individual" should have reasonably been deemed worthy of investigation and punishment. Instead, the court declared that any speech indicating a "potential for violence"—no matter how obviously satirical or jocular, no matter how unreasonable one would have to be to take the alleged "potential for violence" seriously—is legitimate grounds for punishment.
Of course, this isn’t the first time we’ve seen the flawed argument that a generalized, amorphous "safety" rationale must be allowed to trump students’ freedom of expression. Just ask Hayden Barnes, Chris Robinson, the Young Conservatives of Texas at Lone Star College – Tomball, or Clayton Smith and John Schwertz, all of whom found themselves being silenced by college administrators citing vague or unreasonable safety concerns about protected speech as justification for censorship.
This brings us to Tatro’s other central argument: that her First Amendment rights were violated because UM, a public university bound by the Bill of Rights, punished her for protected speech. Tatro argued that since her posts did not constitute unprotected "true threats" under the Supreme Court’s definition of the term ("statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals") in Virginia v. Black, 538 U.S. 343, 359 (2003), the university could not therefore punish her for her speech.
The court didn’t agree — and this is where the opinion becomes particularly dangerous for the speech rights of public college students.
Instead of determining whether or not Tatro’s speech constituted a "true threat" under Virginia v. Black, the Minnesota Court of Appeals analyzed her posts under the Supreme Court’s standard for punishing the speech of grade school students. In Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969) and its progeny, the Supreme Court has found that public schools may punish student speech that caused (or was reasonably likely to cause) "substantial disruption of or material interference with school activities." Applying Tinker and other grade and high school rulings on student speech to Tatro’s case, the Court of Appeals proceeded to dismiss Tatro’s First Amendment claim:
Beyond the university’s concern for the safety of its students and faculty, Tatro’s posts presented substantial concerns about the integrity of the anatomy-bequest program. Tatro’s posts eventually reached families of anatomy-bequest-program donors and funeral directors, causing them to contact the university, expressing dismay and concern about Tatro’s conduct and to question the professionalism of the program in general—a program that relies heavily on the faith and confidence of donors and their families to provide necessary laboratory experiences for medical and mortuary-science students. Indeed, the rules requiring respect and professionalism in the sensitive area of mortuary science appear designed to ensure ongoing trust in this relationship, and Tatro agreed to be bound by these rules as a condition of her access to a human donor. Because Tatro’s Facebook posts materially and substantially disrupted the work and discipline of the university, we conclude that the university did not violate Tatro’s First Amendment rights by responding with appropriate disciplinary sanctions.
This holding presents significant problems for student speech.
First, the Minnesota Court of Appeals all but ignores the fact that the First Amendment rights enjoyed by grade school students are far, far more limited than those enjoyed by college students like Tatro. The court noted that it "observe[s], as the Third Circuit did in DeJohn, that what constitutes a substantial disruption in a primary school may look very different in a university," but then stated without further comment that "these differences do not per se remove the Tinker line of cases from the analysis." This blithe importation of speech standards intended to regulate the conduct of minors into the public university setting completely disregards the crucial importance of free speech on the college campus, recognized for decades in First Amendment doctrine. While quoting the Third Circuit’s opinion in DeJohn v. Temple University to indicate support for reducing college student speech rights to those enjoyed by eighth graders, the Court of Appeals chose to ignore the Third Circuit’s subsequent opinion in McCauley v. University of the Virgin Islands, in which the Third Circuit opines at considerable length about the myriad differences between student speech rights at the grade school and college levels. (For more on these vital differences and the reasons for them, check out this scholarship by Kelly Sarabyn, one of FIRE’s former Justice Robert H. Jackson Legal Fellows.)
Second, and just as worrisome, the Court of Appeals’ holding invites—really, all but demands—that college administrators investigate a vast amount of protected speech, and essentially grants them license to censor students for it as they see fit. After all, as UCLA Law Professor and noted First Amendment expert Eugene Volokh writes:
Likewise, a student’s allegedly racist, sexist, anti-gay, anti-Muslim, anti-Christian, anti-Israel, etc. posts could easily create a “substantial disruption” by alienating donors, prospective clients, and the like. If the court decision were based not on Tinker but on the school’s authority to require certain promises of confidentiality as a condition of access to real clients (live or dead), the approach might have been sound (though I say this tentatively, not having thought in depth about such conditions). But the rationale here is simply the risk of substantial disruption, a risk that could happen even in the absence of any such special conditions.
Anyone who follows FIRE’s work defending student First Amendment rights knows all too well that university administrators are apt to seize on any justification handed to them to punish speech with which they disagree, speech which some (or even many) find offensive, or speech which is merely inconvenient, disagreeable, or otherwise unwanted. Under the Minnesota Court of Appeals’ holding, all an administrator must do to silence or chill such speech is to claim that it has caused or is likely to cause a "substantial disruption," and voila! Court-approved censorship. Talk about an end-run around First Amendment rights.
Lawyers are fond of an old maxim of which I am reminded by the unique fact pattern at issue here: "Hard cases make bad law." This is indeed a hard case, in the sense that Tatro’s Facebook posts aren’t exactly sympathetic. Weekend at Bernie’s is an enjoyable flick, certainly, but many—not least the families of those who donated their bodies to the program—find the discussion of cadavers as playthings insensitive. As such, the university’s desire to punish Tatro is understandable. And as Volokh notes, had the court upheld UM’s punishment purely on a contractual theory—that is, by holding that Tatro had signed away rights by agreeing to the conditions of the program—this case would perhaps be less objectionable.
But the court didn’t do so, and that’s how this hard case has now created bad law.
As Volokh writes: "I can understand how the decision would be appealing on its facts, but the logic of the case strikes me as quite dangerous." I agree, and so should anyone who values free speech on campus.