Minn. high court weighs online speech rights of college students — again

MINNESOTA – TheMinnesota Supreme Court heard oral arguments for the second time Monday in thecase of Tatro v. University of Minnesota,dueto the recusal of a justice two weeks after the initial arguments.

The ruling of the state’s highest court – which has seenfour of its seven justices recuse themselves due to connections to the university– will set important precedent on a public university’s ability to disciplinestudents for off-campus speech 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 a 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 lowercourt ruling).

During the first round of oral arguments, Jordan Kushner,Tatro’s attorney, focused on proving that Tatro’s speech did not constitute a“true threat” and that the student speech standards set in Tinker v. Des Moines and Hazelwood v. Kuhlmeier should not be applied toadult students at a public university.

On Monday, Kushner spent more time attacking theuniversity’s interests in the case.

Kushner argued that the court must apply “strict scrutiny” whenjudging the university’s punishment of Tatro. He argued that the universitycould not meet its obligation to show a compelling interest for the punishmentunder that standard. Kushner conceded that compelling interests could exist,such as protecting the privacy of cadaver donors. However, he argued that theuniversity’s interest in protecting the trust of donors of cadavers did notamount to a compelling interest.

Justice Helen Meyer, acting as chief justice, pushed Kushneron this issue.

“Who decides whether it’s a compelling interest?” she asked.“Now we’re moving into that area in which courts give discretion to academicenvironments.”

Kushner said that such discretion could be afforded auniversity on issues like grading student performance in a classroom setting,but not when it comes to comments a student makes on Facebook in her privatetime.

Mark Rotenberg, representing the University of Minnesota, arguedthat the university did not have to show a compelling interest. Rather, theuniversity’s interest in training professionals, backed by the Hazelwood standard, should suffice. Rotenbergcited three federal appellate court decisions—Axson-Flynn v. Johnson, Ward v. Polite, and Keeton v.Anderson-Wiley—in which the Hazelwood“legitimate pedagogical concerns” standard was applied to a university setting.He added that under Hazelwood “theon-campus off-campus distinction is a red herring.”

Meyer posed to Rotenberg a variation of the question sheasked Kushner.

“To put everything in this black box called legitimatepedagogical concern… what are we going to put in that box?” Meyer asked. “Wehave to be very careful about tying this to a legitimate or well-establishedprofessional standard that the university hasn’t itself announced.”

Justice Barry Anderson, in an echo of one of his questionsduring the first round of arguments, expressed his concern over the trend ofpublic universities creating speech codes and asked if upholding the Universityof Minnesota’s actions would lead other universities down a slippery slope.

Rotenberg responded that a speech code and a code of professionalconduct are two different things.

“There is no institution in the state of Minnesota thatprotects a more robust marketplace of ideas than the University of Minnesota,”he said.

In his rebuttal, Kushner argued that the university’s rules establishedin its code of professional conduct were both vague and overbroad.

Amy Kristin Sanders, assistant professor of masscommunication law at the University of Minnesota, sees Kushner’s appeal tostrict scrutiny as good strategy.

“If the Court applies strict scrutiny, then I can’t see theuniversity’s actions meeting the test,” Sanders said, adding that the court likelywould opt for strict scrutiny over the broader and less onerous standard ofrational basis scrutiny, which the university is calling for.

Tatro attended the arguments, though she declined to commentafter the court adjourned.

Retired Justice Esther Tomljanovich, who served on thestate’s high court from 1990 to 1998, replaced Justice Paul Anderson, whorecused himself in late February. Judge Gary Schurrer of Washington Countyagain heard the case by designation.

Johnson is a doctoralstudent studying mass communication law at the University of Minnesota Schoolof Journalism and Mass Communication. His research interests includecomparative study of international speech and press freedoms.