Court Upholds Discipline of University Student Based on Speech, Citing Tinker

The case is Tatro v. University of Minnesota, decided today by the Minnesota Court of Appeals. I can understand how the decision would be appealing on its facts, but the logic of the case strikes me as quite dangerous.

Amanda Tatro is a student in the mortuary-science program at respondent University of Minnesota. The program prepares students to become funeral directors or morticians, and includes laboratory courses in anatomy, embalming, and restorative art. The laboratory courses utilize cadavers donated through the university’s anatomy-bequest program. Before taking the laboratory courses, Tatro participated in an orientation program that addressed appropriate conduct with respect to anatomy-bequest-program [cadaver] donors. She signed a disclosure form indicating that she understood and agreed to abide by the program rules.

During November and early December 2009, Tatro posted the following on her Facebook page:

Amanda Beth Tatro Gets to play, I mean dissect, Bernie today. Lets 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. [Footnote: “Bernie” was the name Tatro gave to the cadaver/donor she was assigned to work on, and is derived from the film Weekend at Bernie’s.] …

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 [a sharp instrument used during embalming].

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. [Footnote: Tatro testified at the Campus Committee on Student Behavior hearing that she was referring to a man who had just broken up with her. She indicated that they talked on Facebook and she “knew he was going to see it” and would know “it was about him.”] Hmm.. 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.

Tatro’s Facebook settings allowed her “friends” and “friends of friends” to view these postings; Tatro acknowledges that this group includes hundreds of people.

Tatro was subjected to discipline, “including giving Tatro a failing grade in her anatomy-laboratory class and requiring her to enroll in a clinical ethics course; write a letter to mortuary-science department faculty addressing the issue of respect within the department and profession; and complete a psychiatric evaluation. The [university] also placed Tatro on academic probation for the remainder of her undergraduate career.” The discipline was based partly on the view that Tatro’s “want to stab” / “Death List” statements were threatening, and partly on the view that the statements about the cadaver were disrespectful. The Minnesota Court of Appeals upheld the discipline, reasoning thus:

Student speech is afforded broad constitutional protection, and state colleges and universities “are not enclaves immune from the sweep of the First Amendment.” Healy v. James, 408 U.S. 169, 180, 92 S.Ct. 2338, 2345 (1972). But at the same time, the United States Supreme Court has recognized that “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings,” Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682, 106 S.Ct. 3159, 3164 (1986), and the rights of students must be “applied in light of the special characteristics of the school environment.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 736 (1969). In a long line of cases, beginning with Tinker, the Supreme Court has held that schools may limit or discipline student expression if school officials “reasonably conclude that it will ‘materially and substantially disrupt the work and discipline of the school.'” Morse v. Frederick, 551 U.S. 393, 403, 127 S.Ct. 2618, 2626 (2007) (quoting Tinker, 393 U.S. at 513, 89 S.Ct. at 740)….

Tatro argues that a university may only limit or discipline student speech that constitutes a “true threat” and that her Facebook posts cannot reasonably be construed as true threats. Under the true-threat standard, “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” are not protected by the First Amendment…. [But w]e decline to depart from the standard set forth in Tinker and its progeny…. [T]his is not a criminal case. Cf. Watts, 394 U.S. at 707-08, 89 S.Ct. at 1401-02. Apart from [an earlier Eighth Circuit high school student speech ase,] Tatro cites no authority for applying the true-threat analysis to discipline of student speech by a public university. And most courts hold that student expression need not reach the true-threat threshold before a public school may take appropriate disciplinary action in the interest of protecting the work and safety of its community. See, e.g., Wisniewski v. Bd. of Educ., 494 F.3d. 34, 38-39 (2d Cir. 2007) (applying Tinker substantial-disruption standard to analyze school discipline of a student’s expression reasonably understood as urging violent conduct, and rejecting Doe, stating that “school officials have significantly broader authority to sanction student speech” than the true-threat standard allows).

We also reject Tatro’s contention that the Tinker substantial-disruption analysis does not apply in a university setting. We discern no practical reasons for such a distinction and note that other courts have acknowledged Tinker‘s broad applicability to public-education institutions. See, e.g., DeJohn v. Temple Univ., 537 F.3d 301, 315-20 (3d Cir. 2008)(analyzing a university’s policy against harassment using the Tinker framework while acknowledging the differences between primary schools and universities). We observe, as the Third Circuit did in DeJohn, that what constitutes a substantial disruption in a primary school may look very different in a university. See id. at 318 (recognizing the need for “caution” in applying Tinker to student speech on college campuses). But these differences do not per se remove the Tinker line of cases from the analysis. Accordingly, we apply the Tinker substantial-disruption standard to determine whether the university acted within the boundaries of its authority to discipline student expression.

Our analysis turns on whether the record demonstrates that Tatro’s posts “materially and substantially disrupt[ed]” the work and discipline of the university. See Tinker. Both faculty members and students expressed concern that Tatro’s post discussing a “Death List” and wanting to “stab” someone constituted real threats of physical violence, prompting a police investigation. The fact that the university’s concerns were later assuaged does not diminish the substantial nature of the disruption that Tatro’s conduct caused or the university’s need to respond to the disruptive expression. A school need not wait for actual violence to occur before taking appropriate steps to ensure the safety of its community.

Beyond the university’s concern for the safety of its students and faculty, Tatro’s posts presented substantial concerns about the integrity of the anatomy-bequest program. Tatro’s posts eventually reached families of anatomy-bequest-program donors and funeral directors, causing them to contact the university, expressing dismay and concern about Tatro’s conduct and to question the professionalism of the program in general — a program that relies heavily on the faith and confidence of donors and their families to provide necessary laboratory experiences for medical and mortuary-science students.

Indeed, the rules requiring respect and professionalism in the sensitive area of mortuary science appear designed to ensure ongoing trust in this relationship, and Tatro agreed to be bound by these rules as a condition of her access to a human donor. Because Tatro’s Facebook posts materially and substantially disrupted the work and discipline of the university, we conclude that the university did not violate Tatro’s First Amendment rights by responding with appropriate disciplinary sanctions.

The trouble is that this rationale would extend far beyond cases such as this one. A wide range of student speech could, under logic similar to that here, “materially and substantially disrupt the work and discipline of the school.” Overly cautious university police departments could take time and effort to investigate students based on blog posts that simply harshly criticize professors or administrators (for a related incident, the Valdosta “memorial garage” expulsion, see here), or express strong support for proposals to let students carry concealed weapons (for a related incident, see here). One reason that the Court has required a pretty demanding showing for speech to be a “true threat” is that lots of ambiguous language — or even language that says nothing threatening on the surface — could be seen as threatening by some readers or listeners.

Likewise, a student’s allegedly racist, sexist, anti-gay, anti-Muslim, anti-Christian, anti-Israel, etc. posts could easily create a “substantial disruption” by alienating donors, prospective clients, and the like. If the court decision were based not on Tinker but on the school’s authority to require certain promises of confidentiality as a condition of access to real clients (live or dead), the approach might have been sound (though I say this tentatively, not having thought in depth about such conditions). But the rationale here is simply the risk of substantial disruption, a risk that could happen even in the absence of any such special conditions.

In any case, this is the first published appellate decision that I know of that upholds the discipline of a university student on a Tinker rationale, so I thought it worth noting.