A Closer Look at ‘Tatro v. University of Minnesota’
June 22, 2012
As discussed here on The Torch, the Minnesota Supreme Court issued a ruling (PDF) Wednesday in Tatro v. University of Minnesota, finding that the University of Minnesota did not violate mortuary science student Amanda Tatro's First Amendment rights by punishing her for the content of Facebook posts discussing her classroom work with cadavers. While the state's highest court reached the same ultimate result as the Minnesota Court of Appeals' troublingly broad July 2011 decision, it did so on far narrower grounds—a much better result for free speech on campus. The court held that public universities do not violate the First Amendment by disciplining students enrolled in a "professional program" for online speech that violates "academic program rules that are narrowly tailored and directly related to established professional conduct standards."
It's worth a closer look at Wednesday's holding and its potential impact on student speech. First, let's review the difference in the Court of Appeals' decision and Wednesday's ruling.
Last July, the Court of Appeals found that Tatro's Facebook posts were not protected by the First Amendment because they "'materially and substantially disrupt[ed]' the work and discipline of the university." FIRE was deeply concerned by this ruling because it applied the in-school, K–12 standard announced by the United States Supreme Court in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) to a public university seeking to regulate a student's online, off-campus speech.
In our amici curiae brief filed with the state Supreme Court in November 2011, FIRE and the Student Press Law Center argued that this reliance on Tinker was misplaced, as the Tinker standard is "uniquely and deliberately fashioned for the context of grade and high schools" and thus should be "inapplicable in the adult world of a college campus at which attendance is non-compulsory." What's more, we pointed out that Tinker dealt with in-school speech, but Tatro's speech was off-campus and online. We wrote:
The notion that registering for a course offered by a public college divests a citizen of the full benefit of the First Amendment for every hour of her waking life, so that there is never a time when she is safe from government retaliation, should alarm us and give us pause. The court below evinced insufficient consideration of the perils of a rule that all forms of off-campus speech—not only postings on social networking sites, but letters to newspapers, speeches at town-hall meetings and interviews with television news stations—are subject to content-based governmental control. It is one thing to lower the bar for speech that a student disseminates within the confines of an elementary or secondary school. It is quite another to say that a government agency may impose a rule against "disruptive" speech by adults in their off-campus lives without having to surmount the gauntlet of strictest scrutiny that the First Amendment demands when the government regulates speech based on content or viewpoint.
In sharp contrast, the University of Minnesota argued in its briefs to the Minnesota Supreme Court that its punishment of Tatro was permissible under the United States Supreme Court's decision in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), another K–12 case in which the Court ruled that a high school may exercise control over student speech "in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." In other words, the university was asserting a right to classify a student's online, off-campus speech—e.g., Facebook posts—as "school-sponsored speech" subject to any regulation (or plain old censorship) deemed "reasonably related" to the university's "legitimate pedagogical concerns." A quick look at FIRE's case archives will immediately demonstrate why granting public university administrators such power would be a disaster.
Thankfully, the Minnesota Supreme Court agreed, writing:
In this case, because the public would not reasonably perceive Tatro's Facebook posts to bear the imprimatur of the University, the Facebook posts cannot be characterized as "school-sponsored speech." Applying the legitimate pedagogical concerns standard to a professional student's Facebook posts would give universities wide-ranging authority to constrain offensive or controversial Internet activity by requiring only that a school's actions be "reasonably related" to "legitimate pedagogical concerns." Hazelwood, 484 U.S. at 272–73. Further, the universe of "legitimate pedagogical concerns" has been broadly construed, at least in the high school setting, to cover values like "discipline, courtesy, and respect for authority." Poling v. Murphy, 872 F.2d 757, 762 (6th Cir. 1989) (observing that "[t]he universe of legitimate pedagogical concerns is by no means confined to the academic"); see also Brody v. Spang, 957 F.2d 1108, 1122 (3d Cir. 1992) (stating that avoidance of controversy is a valid pedagogical concern in a nonpublic school forum). Accordingly, we decline to extend the legitimate pedagogical concerns standard to a university's imposition of disciplinary sanctions for a student's Facebook posts. [Emphasis added.]
This clear rejection of the university's attempt to extend Hazelwood powers to public universities regulating online, off-campus speech is a significant relief. As Frank LoMonte, the SPLC's Executive Director, put it:
"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's a positive development, to be sure. And as I wrote Wednesday, the court also rejected relying on Tinker to assess the constitutionality of a public university's punishment of online, off-campus speech, finding that "[t]he Tinker substantial disruption standard does not fit the purposes of the sanctions here." That's also very good news for college student First Amendment rights. Tinker is a ruling designed for in-class student expression in the K-12 context, so applying it to cover Tatro's Facebook posts would have been a dramatic and misguided expansion. (Interestingly, in discussing the "controversy [that] exists over whether the free speech standards that developed in K-12 school cases apply in the university setting," the court cited the scholarship of FIRE's former Justice Robert H. Jackson Legal Fellow, Kelly Sarabyn.) Had the court decided to apply Tinker, it would have allowed public university administrators to censor or punish online, off-campus expression after reasonably concluding that it will "materially and substantially disrupt the work and discipline of the school." Again, given FIRE's experience with campus censorship, it's far too easy to imagine university administrators abusing this grade school standard to silence otherwise protected speech.
So, as Frank says, bullets were dodged. Wednesday's opinion could have been far worse.
But let's turn now to the actual holding. The court ruled that public universities do not violate the First Amendment by disciplining a student enrolled in a "professional program" for online speech that violates "academic program rules that are narrowly tailored and directly related to established professional conduct standards." How might this standard affect student speech rights moving forward?
As an initial matter, it's important to remember that this is the Minnesota Supreme Court, not the United States Supreme Court. So while this opinion is binding on all Minnesota public universities, it's not going to affect students in, say, Alabama. At least, not yet; other courts may very well look to the Minnesota Supreme Court's ruling here as useful authority if they are confronted with similar facts.
Next, this is a relatively narrow ruling: It applies only to students enrolled in "professional programs," it only covers speech that violates "academic program rules," and those rules must be both "narrowly tailored" and "directly related to established professional conduct standards." Let's go through these filters one-by-one.
In practice, "professional programs" should be interpreted as narrowly as possible, and should mean only those situations where students are performing duties otherwise performed by professionals, under professional supervision. For example, law school clinics, where students are dealing with clients; or medical school rotations; or student teaching; or, here, interacting with cadavers. Similarly, "academic program rules" should exclude all rules not specific to the student's professional program-for example, general rules that affect all students.
These academic program rules also must be "narrowly tailored," a legal term of art imported from the United States Supreme Court's holding in Ward v. Rock Against Racism, 491 U.S. 781 (1989). Applying the "narrowly tailored" requirement to Tatro's case, the state court's ruling interpreted it to mean that the rules cannot be "substantially broader than necessary" to fulfill their aim—presumably, to ensure compliance with the "established professional conduct standards" to which they are "directly related."
So, by design, this is a relatively narrow carve-out, and if properly applied, should affect only students in professional programs. But that certainly doesn't mean that it isn't a significant reduction of First Amendment rights or that it will be free from abuse in practice.
For example, imagine a student enrolled at the University of Minnesota Law School. Taking an expansive view of Tatro, the university might argue that all law students are enrolled in a "professional program," and not just those law students participating in legal clinics and interacting with clients. Let's say the law school adopts as school policy the Minnesota Rules of Professional Conduct (MRPC), a document that governs how attorneys are supposed to conduct themselves in Minnesota. The MRPC's preamble requires that attorneys maintain "a professional, courteous, and civil attitude toward all persons involved in the legal system."
Making this section of the MRPC official University of Minnesota Law School policy restricts the First Amendment rights of students, since most speech that is not "civil" or "courteous" still enjoys constitutional protection. But, under Wednesday's ruling, the university could attempt to use this policy to punish a law student who insulted another student on Facebook. It could argue that the MRPC policy only applies to students in a "professional program" as "academic program rules." The law school's MRPC policy is arguably "narrowly tailored," because the law school adopted no more and no less than the actual terms of the MRPC. And the MRPC policy is "directly related to established professional conduct standards"—indeed, the policy is the professional conduct standard, adopted verbatim. Under this reading of the Minnesota Supreme Court's Tatro holding, the University of Minnesota Law School might feel comfortable punishing students for online, off-campus speech that violates the MRPC—even if regulating that speech would otherwise violate the First Amendment. As a result, First Amendment-protected student speech shielded from direct regulation by a public university could be suddenly ripe for censorship simply because a third party (here, the Minnesota court system) imposes stricter standards on its professional members.
That's a troubling outcome, to say the least. While professional programs are preparing students to enter a profession, students must still be allowed to be just that—students. Requiring students to waive their First Amendment rights and follow the rules of the profession they hope to enter before they actually do so dramatically affects a great range of protected (and socially useful) speech. For example, a student's ability to critique, satirize, or comment on the legal profession prior to entry may be greatly restricted if he or she must be "courteous" and "civil" to all other attorneys while still in law school—even when off-campus, even when online. Again, as we wrote in our amici brief: "The notion that registering for a course offered by a public college divests a citizen of the full benefit of the First Amendment for every hour of her waking life, so that there is never a time when she is safe from government retaliation, should alarm us and give us pause."
Looking ahead at Tatro's potential impact, it's important to emphasize that the court's opinion is very fact-specific and focuses specifically on the fact that Tatro's program involved "the privilege of access to human cadavers." As KC Johnson notes over at Minding the Campus, the court "approached the issue only through the 'unique' lens of 'the special characteristics of the academic environment of the Mortuary Science Program and its professional requirements.'" That's right—in upholding Tatro's punishment, the court takes pains to "stress that the University's rules and policies governing access to human cadavers are unique because respectful treatment of human cadavers is imperative to maintaining the trust of the individuals who donate their bodies" to the program. Indeed, the opinion makes repeated mention of the special considerations warranted by the fact that cadavers are involved. So while the court's ruling is of course not limited to mortuary science programs, universities seeking to use the "Tatro exception" to punish "unprofessional" student speech should be forced to prove similarly compelling circumstances for doing so. As the court says, the decision "is based on the specific characteristics of this case"-and only allows "measured discipline that was not arbitrary or a pretext for punishing the student's protected views."
In sum, Wednesday's ruling is narrower than it could have been—and that's a good thing. That said, the Tatro exception is still a significant new limitation on students' First Amendment rights in Minnesota. The SPLC reports that Tatro is evaluating her options. We'll keep you posted here on The Torch as to further developments.