When justice delayed really is justice denied: Vindication that comes too late for Amanda Tatro

The judicial ruling that would have changed everything for Amanda Tatro came just five months too late.

Tatro, 31, was found dead in her apartment June 26, less than a week after the Minnesota Supreme Court threw out her First Amendment challenge to disciplinary sanctions imposed for some misunderstood jokes she posted on Facebook.

Her college, the University of Minnesota, insisted that it could punish students’ speech on social-networking pages — even if the speech was created off campus on personal time — and the Minnesota court agreed.

The court fashioned a new legal standard that, for the first time, enables colleges (in Minnesota, at least) to discipline students for speech, even on personal time, that violates the “established professional conduct standards” of their chosen course of study. In Tatro’s case, her jokes about cadavers were found to be unbecoming for a person studying to be a funeral director.

The Minnesota court’s operative phrase — “established professional conduct standards” — is key, because of what the Massachusetts Supreme Court just decided last week.

The case, Schoeller v. Board of Registration of Funeral Directors, involved a funeral-home employee who gave an interview to the Boston Phoenix for a feature story about the mortuary industry graphically describing his work with cadavers. Among other gruesome details, Troy Schoeller told the paper that, after a long day of inhaling the methane emitted from body cavities, “[Y]ou actually fart out dead people rot and it smells like the guy you were working on today.”

The Massachusetts Board of Registration of Funeral Directors and Embalmers decided that Schoeller violated the industry’s state-enforced code of conduct — in the words of the Tatro court, an “established professional conduct standard” — and yanked Schoeller’s license.

Specifically, the board found that Schoeller’s comments ran afoul of a rule against speaking “in an undignified and salacious manner about the condition of dead bodies.”

Schoeller filed suit, alleging that the state could not punish him for the content of his speech. Before the Massachusetts high court, an attorney for the licensing board argued that the state’s interest in enforcing decorum in the profession overrode Schoeller’s First Amendment rights. “Sensitivity, dignity, respect are at the very heart of this profession,” Assistant Attorney General Sookyoung Shin told the Massachusetts Supreme Judicial Court.

In an Oct. 26 ruling, the justices agreed 7-0 with Schoeller and threw out the licensing board’s decision.

The court’s unanimous ruling is a resounding rejection for the idea that a government agency gets to decide whether citizens speak nicely enough to pursue their chosen occupation: “[W]e conclude that the board’s generalized interest in maintaining the integrity of the profession cannot outweigh the First Amendment rights of embalmers and funeral directors when acting outside of their professional capacity(.)”

The court noted that a rule against “unprofessional” or “undignified” speech was so vague and so excessively broad that it could even result in the punishment of a funeral director who gave an article to a medical journal describing the decomposition of bodies in ways that are medically accurate but perhaps upsetting to non-medically trained readers. “The integrity of a licensed profession is not … a limitless concept that can be invoked without regard to the statutory scheme in which a licensing board operates,” the court concluded.

Place that wording up against the University of Minnesota’s justification for punishing Amanda Tatro.

As described by the Minnesota Supreme Court, the university believed that Tatro violated academic program rules of treating cadavers “with respect and dignity,” rules that require “a high degree of sensitivity” toward the dead.

The university’s rules for would-be future funeral directors are indistinguishable from those that, as we now know, cannot constitutionally be applied to people actually in the profession.

Had the Minnesota Supreme Court had the benefit of the Schoeller ruling half a year ago, it is almost inconceivable that Tatro’s case could have come out the way it did. If a government agency cannot ban a person from the funeral industry for speaking about dead bodies “in an undignified and salacious manner,” then it surely cannot ban a person from a funeral-director training program for inadequate “respect” or “dignity” or “sensitivity” toward dead bodies when speaking outside of the workplace.

The Schoeller ruling is a wake-up call to the University of Minnesota and to all colleges. Even if the “established professional standards” language from the Tatro case catches on and becomes accepted in the judiciary, “professional standards” is not a license to enforce subjective niceness requirements on students’ off-campus behavior.

Amanda Tatro, it turns out, was legally in the right all along, and the University of Minnesota was in the wrong. Maybe this certain knowledge can bring some reassurance to her loved ones that the legal fight that consumed Amanda’s final months was a worthy one.