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Tatro v. University of Minnesota: Court Affirms Disciplining of Mortuary-Science Student for Threatening Facebook Posts, Relies on Tinker Standard for Censoring Speech in Higher Education

Commentary First Amendment

Tatro v. University of Minnesota, 2011 WL 2672220 (Minn. Ct. App. July 11, 2011) Slip Opinion hosted by the Minnesota State Law Library

The Minnesota Court of Appeals affirmed a decision of the University of Minnesota Provost’s Appeals Committee, which had penalized mortuary-science student Amanda Tatro for off-campus posts to a social networking website.

The Minnesota Court of Appeals held that the evidence supported the university’s finding that Tatro violated its rules. The court also held that the university properly exercised its authority to address Tatro’s off-campus conduct and did not violate her free speech rights because her actions fell under the wording of the university’s Student Conduct Code, which applies to off-campus conduct that “adversely affects a substantial University interest and . . . indicates that the student may present a danger or threat to the health or safety of the student or others.” In so holding, the court applied the Tinker standard, which allows school officials to limit or discipline student behavior if they reasonably conclude that the behavior will “materially and substantially disrupt the work and discipline of the school.”  The court stated that the Tinker standard was more appropriate than the alternative “true-threat” standard (which would have required Tatro to have intentionally communicated an actual threat before the university would be allowed to intervene), given that this was not a criminal case and that this standard typically does not apply to public schools taking appropriate disciplinary action.

Eric Goldman provides an overview of the case. The Volokh Conspiracy criticizes the decision for relying on an overly broad rationale that might encroach on students’ free speech rights, while the Foundation for Individual Rights in Education (FIRE) features a similar criticism and a thorough analysis of the decision.

In 2009, Tatro posted status updates on her Facebook profile that suggested an intent to attack a cadaver with a trocar (a piercing tool used to aspirate gasses and fluids from the body) and also stated that she wanted “to stab a certain someone in the throat with a trocar.” As the court noted, Tatro’s Facebook settings made her status updates available to her friends and friends of friends, an audience that included hundreds of people.

After one of Tatro’s peers reported these status updates to officials at the University of Minnesota, the university began proceedings against her, ultimately imposing a number of penalties. The university gave her a failing grade in her anatomy laboratory class, placed her on academic probation for the remainder of her undergraduate career, and required her to complete a psychiatric evaluation, to enroll in a clinical ethics course, and write a letter to faculty addressing the issue of respect within the department and profession. Tatro appealed the decision to the University of Minnesota Provost’s Appeals Committee, which affirmed the ruling.

Tatro claimed that her status updates were satirical and directed at her friends. However, the Minnesota Court of Appeals rejected this argument in favor of the university’s assertion that Tatro’s actions constituted threatening conduct, which violated the Student Conduct Code. The court also noted that the university was dependent on the donations of cadavers for the education of its mortuary-science students and that Tatro’s actions had jeopardized the program by creating negative publicity. In light of Tatro’s alleged threats and the possible harm to the cadaver donation program, the court found that Tatro’s Facebook posts materially and substantially disrupted the work and discipline of the university, meeting the requirements of the Tinker standard. Based on this reasoning, the university’s actions were found not to have violated Tatro’s First Amendment rights.

This case is significant because, as Eugene Volokh notes, it is perhaps the first to extend the Tinker standard to the university context, as the standard has typically been employed in cases involving K-12 schools. The Minnesota Court of Appeals’ interpretation of the Tinker standard could be applied broadly to allow university police to investigate students’ largely harmless and nonthreatening (though perhaps overly harsh) online communications and status updates. Volokh also warns that the standard could be used to silence controversial voices that a university considers a “substantial disruption” because it alienates donors or prospective clients, thereby chilling free speech. Goldman expresses some nuanced concern, as he recognizes the need for universities to educate their students with regard to professional respect, yet worries that “there is a mini-trend in court” to blur the lines between “ill-advised social media rants and truly threatening posts.”

Matthew Becker is a 2L at Harvard Law School.