In Tinker v. Des Moines Independent Community School District, the Supreme Court stated that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” The Court reinforced the importance of freedom of speech in schools in promoting citizenship and the marketplace of ideas. However, the Supreme Court also recognized that schools need to maintain order and discipline to advance their mission. In Tinker, the court held that schools may discipline students for speech that causes, or can reasonably be predicted to cause, a “substantial disruption of or material interference with school activities.” Although it was decided in 1969, Tinker remains a key case on student free speech. However, social media, such as on Facebook and Twitter, is causing higher education administrators to expand the bounds of the university’s authority to discipline off-campus posts.
Tatro v. University of Minnesota is a compelling example for this need of further definition of the boundaries of student free speech on social media as it relates to violations of academic program rules. There is danger of public universities applying the standard from the Tatro case too broadly resulting in diminished students’ rights to expression while they are off-campus. Tatro, a mortuary science student at the University of Minnesota, posted statements on Facebook in 2009 that were found to be in violation of the university’s student code of conduct. The posts were deemed to be threatening by the University’s Campus Committee on Student Behavior (CCSB) and in violation of the Mortuary Science academic program rules, with the latter being the more serious charge. Sanctions were administered, including an F in a single lab course, but Tatro was allowed to continue in the program. Tatro appealed this decision arguing that the University violated her free speech rights. The decision of the CCSP was upheld by the provost. Ultimately, the Minnesota Supreme Court upheld the university’s decision.
Tatro’s argument was that public university students are entitled to the same free speech rights as members of the general public. Tatro cited Healy v. James, that “state colleges and universities are not enclaves immune from the sweep of the First Amendment” and further, that colleges and its surrounding environs are peculiarly the ‘marketplace of ideas.” However, the main charge against Tatro was the violation of the Mortuary Science program rules that required cadavers to be treated with “the utmost respect and dignity” and the conversation outside labs about human dissection should be respectful and discreet. Blogging about the anatomy lab or the cadaver dissection was expressly prohibited. The discipline concentrated on the following four posts:
- · Amanda Beth Tatro Gets to play, I mean dissect, Bernie today. Let’s 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.
- · 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.
- · 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. Hmmm., 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.
The university argued that it acted within its constitutional rights when it enforced academic program rules that are “reasonably related to the legitimate pedagogical objective of training Mortuary Science students to enter the funeral director profession,” citing the Hazelwood legitimate pedagogical concerns standard. The Hazelwood “school-sponsored” speech standard comprises “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.” Expressive activities include those that are characterized as part of the curriculum, in or out of the classroom, as long as they are supervised by faculty and designed to impart knowledge. Are a student’s private Facebook posts within the scope of the legitimate pedagogical concerns standard? Applying this standard would give universities broad authority to constrain controversial or offensive social media activity by requiring only that a school’s actions be “reasonable related” to “legitimate pedagogical concerns.” This may be creating a slippery slope.
Ultimately, the Minnesota Supreme Court determined that Tatro’s speech was not protected because her Facebook posts violated the Mortuary Science program’s academic rules, which were narrowly tailored and directly related to professional conduct standards widely recognized in the profession. The ACLU of Minnesota expressed disappointment with the decision stating that Tatro’s speech should have been protected, but they were pleased the court rejected applying the Tinker standard.
Levin (2016) notes that despite the proliferation of student speech on social media, federal and state courts remain divided on how much First Amendment protection should be granted to students’ off-campus social media posts. Beckstrom (2008) stated that the discipline of off-campus speech should be carefully considered limiting speech that can be classified as a true threat or crime. The Tatro case highlights the need for greater definition of the boundaries of restriction on student speech in post-secondary schools.
This post was co-authored by Ms. Shannon Jesme and Dr. David Nguyen. Ms. Jesme is Vice President for Administrative Services at Northland Community and Technical College and a Ph.D. student in the UND Higher Education program.