University of Minnesota Did Not Infringe Mortuary Student’s Free Speech Rights

UPDATE June 26, 2012, 12:35 PM: City Pages reports that Amanda Tatro, 31, was found dead Tuesday morning in her home. Tatro suffered from Reflex Sympathetic Dystrophy, a condition that affected her nervous and circulatory systems. She had been planning an appeal of her case to the U.S. Supreme Court. Whether that appeal will still go forward is not known at this time.

June 22, 2012, 4:15 PM:  The Minnesota Supreme Court issued its highly-anticipated ruling this week upholding the Minnesota Court of Appeals’ decision to affirm the University of Minnesota’s disciplinary action against mortuary science student, Amanda Tatro. The question at the heart of the case, Tatro v. University of Minnesota, was whether the university had the right to regulate an adult student’s posts to Facebook. In this instance, the student posted several comments to her Facebook wall about her work in one of her anatomy lab courses where she was dissecting a human cadaver. She cleverly nicknamed her cadaver “Bernie” and talked about taking out some pent up aggression on her subject. As one might expect, the issue had a bit more nuance than that, and that is where the court spent most of its energy. Read more about the distinctions drawn after the break…

Amanda Tatro’s lawyer, Jordan Kushner at oral arguments before the MN Supreme Court

The speech protections afforded under the First Amendment to the United States Constitution face regular challenges when educational institutions attempt to control their students’ expressions on campus or elsewhere. Well-known cases such as Tinker v. Des Moines (black armbands protesting the Viet Nam conflict) and Morse v. Frederick (Bong Hits for Jesus) all dealt with teenagers in secondary school settings and afforded educators significant latitude in what speech they could regulate. This case drew the distinction that the appellant was an adult at a post-secondary institution. This raised the question of whether the institution should thus be held to a higher level of scrutiny. Rather than apply the “substantial disruption” (Tinker) or “legitimate pedagogical concern” (Hazelwood v. Kuhlmeier) tests, the Appellant argued that the school should not have any right to regulate her speech because she was not a child and her speech activities took place far from the confines of the school, reducing the potential for disruption. The school–and the court–thought otherwise.

While the court did not completely adopt the school’s arguments, it ultimately decided that even full-fledged, adult citizens were not guaranteed full speech rights in every circumstance. Of course, there is a long history of granting the federal, state and local governments limited authority to regulate the time, place and manner of speech activities for all citizens, not just students. The Minnesota Supreme Court found that the University had good reasons to limit the speech of students in its mortuary science program and that consideration for the age or status of the student would actually have the opposite effect.

Amanda Tatro

It is true that high school and middle school students face greater burdens on their speech rights than adults, but in this case, Tatro’s wall posts exceeded even the more lenient standards that the court found applied to adults. It would probably help to see what she had been talking about, so the four key posts in question are reproduced below:

• 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 … [November 12, 2009]

• 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. [December 6, 2009]

• 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. Hmm.. perhaps I will spend the evening updating my “Death List # 5” and making friends with the crematory guy. I do know the code … [December 7, 2009]

• 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. [Undated.]

Someone initially brought the posts to the school’s attention out of concern for the depictions of violence. The recent (at the time) shooting at Virginia Tech had increased school administrations’ sensitivity to any conduct that could lead to another such incident, prompting escalation of the matter. Although the police ultimately determined Tatro was not a threat, her posts caught the attention of mortuary science school officials for the disrespectful way in which she talked about the cadaver.

This disrespect for the person who left their body to science and education formed the core of the University’s disciplinary action. Specifically, the court held that when Tatro voluntarily registered for the “mort sci” courses, she signed an agreement stating that she would abide by the program’s code of conduct, as well as the established behavior standards of the mortuary profession. Much like the ethics rules that bind attorneys or physicians, the funerary industry sets its own expectations for practitioners in the field. Students are bound to adhere to the standards as part of their education and training. As morticians deal with a particularly sensitive clientele, it makes sense that they would want to ensure that only those capable of treating the deceased with respect and dignity would continue on in their education.

More important to the case than the ethics rules, is the fact that the University also imposed restrictions on students “blogging” about the anatomy lab and their cadavers. This was specifically expressed to the students to include Facebook and Twitter. This restriction was known to Tatro, as she recalled being told about a medical student in New York who posted photos of a cadaver to Facebook that caused an uproar. She defended her actions by stating that she never posted anything that could identify the donor. While true, the purpose of the rule was more than just preserving the privacy of the deceased, but to maintain the trust of donors and thus the viability of the Anatomy Bequest Program.

Ultimately, the court set a bright line rule that makes quite a lot of sense.

We hold that a university does not violate the free speech rights of a student enrolled in a professional program when the university imposes sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.

They took great care to clarify that they were not giving the University a blank check to regulate any personal expression at any time, as the amici curiae feared, but that it must tie its rules to an established code of conduct in the industry in question. Applying this rule to the case at hand, it is clear that Tatro knew the rules–or at least understood that there was a difference between general discussions on Facebook and those that involved the cadaver–and and chose to violate them. The justices went on to explain that “the First Amendment does not give Tatro a right to engage in unprofessional and unethical conduct without any academic repercussions.”

To summarize, I think this decision strikes just the right balance between personal liberty and valid governmental interests. This was not the case of an arbitrary and malicious silencing of an unpopular viewpoint, but an educational institution taking measured steps to discipline a student for behavior that would not be acceptable in the profession toward which she was working. After all, the school did not expel, or even suspend, Tatro for her remarks, but gave her a failing grade for the one lab course and placed her on probation. This seems well within the bounds of corrective action and not retaliation or censorship. If nothing else, it is clear that online social networking sites are relevant and significant means of expression and that their ability to give individuals the power to express themselves far beyond the schoolyard–or anatomy lab–will have a considerable effect on the future of our 1st Amendment rights.

I have not heard whether Tatro plans to appeal to the US Supreme Court, but given the level treatment by Minnesota, I think she should accept her fate and move on.

About Justin Kwong

An attorney in the Twin Cities and adjunct professor at William Mitchell College of Law where I teach a seminar on the law of virtual worlds.
This entry was posted in Litigation, Rights and Civil Liberties, Social Networks. Bookmark the permalink.

8 Responses to University of Minnesota Did Not Infringe Mortuary Student’s Free Speech Rights

  1. Although this seems to be an unfortunate ruling, there is some silver lining. (Even if the lining only shows the boundary of the ruling.) For instance, the policy of the class clearly stated that blogging was not allowed. Also, there was no ruling on whether the school exceeded it’s jurisdiction since that was not properly raised.

  2. John Hudson says:

    If I recall correctly, at one time professional standards prohibited lawyers and doctors from advertising their services: My point being: Maybe the so-called professional standards Tatro was violating were unconstitutional. Personally, I have a problem with any organization abridging free speech.

    • @John – Correct, however, if I started a blog discussing my thoughts and opinions concerning clients, I would probably still get in trouble.

    • Justin Kwong says:

      While I agree that it’s difficult to stomach any limits to speech, I really do think that the school was justified here. She voluntarily enrolled in the College of Mortuary Science at the University. It is the stated goal of the program to teach people the skills on how to work in the field as a mortician. It would not make sense that the program, once a student is enrolled, has to tolerate whatever boorish behavior that person wishes to engage in.

      Also, many professions still do regulate how their members can act. Attorneys are bound to the Rules of Professional Responsibility, which have been crafted to ensure and maintain public trust in lawyers. We have strict rules on when we can disclose confidential client information because the success of our profession as a whole depends on people being able to trust that we won’t go blabbing their deepest, darkest secrets to everyone on the street corner. That is a clear restriction on the attorney’s speech, but we all agree that we’re better off with that rule than without it.

      I would think that any educational program, especially one that is dependent on getting people to donate their bodies to science (which is becoming more and more difficult to do), would want to discourage its students from making it look bad. That’s all. They didn’t string her up or tar and feather her. The punishment seems to fit the crime, and the court backs that up.

  3. John Hudson says:

    The main issue, as I see it, is that a school has the ability to abridge free speech of an adult that is out of their venue. It could be easily argued that the public at large would have no idea as to the identity, standing, or whatever with regards to Tatro. Obviously, by disciplining Tatro, and the subsequent notoriety generated by it, the school created the problem.

    Until the lawsuit and subsequent ruling was rendered, a casual reader of her Facebook wall might write her off as a nut or whatever. Also, a point that was not amplified by the news article was whether she posted anonymously, used a nom de plume, or used her real name. That would make a huge difference.

    The well known bottom line is: Free speech needs to be protected—even the free speech of someone who appears to be eccentric.

    • Justin Kwong says:

      Actually, she did post a herself and her privacy settings were set to friends and friends-of-friends, which is almost everyone. Second, after the school disciplined her, she took her posts to local TV news media and made the whole issue public. So, as to her, I don’t think discretion was a skill that she had in abundance. Third, the school made it clear that it wasn’t just the identity of the cadaver, but the way she talked about using it as an outlet for aggression and violence, and not the respect a person deserves who leaves their body to science. They aren’t limiting all speech, just that which negatively affects their program’s ability to receive donations.

  4. P. Trobaugh says:

    My understanding is that many individual rights, e.g., privacy, 1st Amendment, anti-discrimination, do not survive the death of the Plaintiff. Ms. Tatro’s death seems to preclude a further appeal.

  5. P. Trobaugh says:

    I guess my concern is that the decision validates a prohibition on speech that is not “respectful and discreet,” which seems very vague, especially when the government is imposing the restriction. While the language used in the decision was parsed and framed as a limitation, I fear in the future it will be cited for opposite purposes.

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