Minnesota Supreme Court to rule on the off-campus speech rights of college students

MINNESOTA — TheMinnesota Supreme Court heard oral arguments Wednesday in a case that will set importantprecedent on a public university’s ability to discipline students foroff-campus comments about school activity.

Amanda Tatro, a former student in the mortuary sciencesdepartment at the University of Minnesota, posted comments to her Facebook wallin November and December 2009 about “playing” with her cadaver in her anatomycourse and wanting “to stab a certain someone in the throat with a trocar,” aneedle-like embalming tool, according to court documents. (The full commentscan be viewed in the lower court ruling).

The university filed a formal complaint against Tatro inlate December 2009, alleging her comments were threatening and in violation ofthe rules of the mortuary science program. In particular, the university citedRule 7 of the anatomy laboratory course, which states, “Conversational language of cadaver dissection outside the laboratoryshould be respectful and discreet. Blogging about the anatomy lab or thecadaver dissection is not allowable.”

In April 2010, the universitycampus committee on student behavior ruled Tatro’s comments to be“disrespectful, unprofessional, and reasonably interpreted as threatening,”according to court documents. Thecommittee ruled that Tatro must take an F in the anatomy course, undergo apsychiatric evaluation and be placed on academic probation.

The Minnesota StateCourt of Appeals upheld the committee’s ruling last July.

At oral arguments, JordanKushner, Tatro’s attorney, argued that Tatro was engaging in her FirstAmendment right to free speech when she made the comments, and that since shemade them off campus the university did not have jurisdiction. Kushner arguedthat Tatro’s comments did not amount to a “true threat” under the U.S. SupremeCourt’s Virginia v. Black standard. Tatronever intended to stab anyone with a trocar, Kushner said, but rather was“venting random thoughts.”

Justice ChristopherDietzen asked Kushner why the test on restricting student speech set forth in Tinker v. Des Moines should not apply toTatro’s comments, especially given that her speech was not political orreligious in nature. Under the “Tinkertest,” speech must “materiallydisrupt” classwork, involve “substantial disorder,” or invade the rights ofothers for a public school to restrict it.

Kushner arguedthat Tinker and a number of othercases involving speech at public middle and high school schools should not be appliedwith equal strictness in Tatro’s case, as Tatro was an adult at a publicuniversity.

Justice HelenMeyer asked Kushner what the legal test should be for restricting off-campusspeech that makes its way onto campus. Kushner again cited the strict truethreat test, arguing that Tatro’s posting did not constitute a true threat inthis particular case.

Mark Rotenberg, representingthe University of Minnesota, argued that Tatro’s speech is punishable under theHazelwood v. Kuhlmeier standard,which allows restrictions on “curricular” speech for legitimate educationalreasons.

The university hadtwo main pedagogical interests in disciplining Tatro, Rotenberg said. First, ithad an interest in teaching “successful professional behavior” to futuremorticians and embalmers. Rotenberg cited a Minnesota statute that requires thestate’s morticians to engage in professional conduct to maintain licensure. Second,the university feared it would lose the trust of donors to its Anatomy BequestProgram if online comments disrespectful to donated cadavers go unpunished.

Justice BarryAnderson expressed his concern over public universities using speech codeswhenever speech could “make someone somewhere feel uncomfortable.”

“Universityadministrators have not exactly covered themselves with glory on the subject ofthe First Amendment over the course of the last many years,” Anderson said.

Rotenberg arguedthat Tatro was not in violation of a general speech code, but rather thecontext-specific rules of a particular program, which amounted to a contract.Indeed, Tatro signed an agreement to follow the anatomy laboratory rules,Rotenberg said.

Amy Kristin Sanders,assistant professor of mass communication law at the University of Minnesota,finds the use of such contractual speech codes troubling.

“I think it sets a dangerousprecedent that could allow universities to broaden speech restrictions,”Sanders said. “In essence, aren’t we training all university students to beprofessionals of some variety?

“Thecontract’s prohibition on speaking in general about the anatomy lab seems tosweep broadly, and the type of speech targeted is not at all narrow,” Sanderssaid.

After the arguments,Kushner expressed his concern about applying the Tinker test to Tatro’s case.

“Universities andsecondary schools both have an interest in preventing disruption, but thoseinterests aren’t the same and the differences have not been fleshed out,” hesaid in an interview. “There’s an assumption that the standards are the same[for both], and that’s a disturbing trend.”

Rotenberg reiteratedafter the arguments that he is not advocating for blanket restrictions onstudent speech.

“This is a caseabout professional training,” he said. “The university is meeting a narrow interestthat is context specific.”

Asked for heropinion after the arguments on why the justices seemed willing to apply the Tinker test to a university setting,Amanda Tatro was blunt.

“They probably havegrandkids my age by now, and so they think we’re still kids, I don’t know,”Tatro said.

The case will beamong the first to analyze the free expression rights of college studentsonline. The U.S. Supreme Court has never ruled on the issue, nor has itdetermined whether the Hazelwoodstandard – which arose in the context of a high school student newspaper – isapplicable to college and university students.

Justices Alan Pageand David Stras and Chief Justice Lorie Skjerven Gildea recused themselves fromthe case. Judge Gary Schurrer of Washington County is serving on the high courtby designation.

The court did notannounce when it might issue its decision.

Johnson is a doctoral studentstudying mass communication law at the University of Minnesota School ofJournalism and Mass Communication. His research interests include comparativestudy of international speech and press freedoms.