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June 24, 2012
Mortuary Student Can Be Disciplined for Facebook Posts--Tatro v. University of Minnesota
By Eric Goldman
This is one of the many lawsuits over a school disciplining a student for the student's social media posts. The two main twists are (1) the student was attending a university, not a K-12 school, and (2) the student was in the mortuary sciences program, where the subject matter of their studies (i.e., cadavers) means students may be held to higher professional expectations than your average college kid. Another key fact: Tatro already graduated in 2011, so the range of available remedies had shrunk by the time this case reached the Minnesota Supreme Court.
Based partly on both parties' agreement that “a university may regulate student speech on Facebook that violates established professional conduct standards,” the Minnesota Supreme Court held:
the University did not violate the free speech rights of Tatro by imposing sanctions for her Facebook posts that violated academic program rules where the academic program rules were narrowly tailored and directly related to established professional conduct standards.
Later, the court stresses:
Our decision is based on the specific circumstances of this case--a professional program that operates under established professional conduct standards, a program that gives students access to donated human cadavers and requires a high degree of sensitivity, written academic program rules requiring the respectful treatment of human cadavers, and measured discipline that was not arbitrary or a pretext for punishing the student's protected views.
As this narrow fact-specific holding demonstrates, the Supreme Court avoided any broad pronouncements about the legitimacy of schools regulating students’ social media posts. Consider the list of topics the court didn’t address:
* the applicability of the Tinker standard. The court said it didn’t apply because the school wasn't motivated by concerns about Tatro’s posts causing on-campus disruption.
* whether social networking activity is "on" or "off" campus (or if it matters)
* if free speech rules developed in K-12 cases equally apply to the college setting
* if Facebook posts are "public" or "private"? The court apparently assumes Tatro’s posts to her “open” Facebook account were public. The court says "the University is not sanctioning Tatro for a private conversation, but for Facebook posts that could be viewed by thousands of Facebook users and for sharing the Facebook posts with the news media." Compare Moreno v. Hanford Sentinel. It leaves open if the posts would have been “public” or “published” if her posts had been open only to her friends, and how many friends she could have and still treat her posts as private.
It seems the court was about as excited to address these cutting-edge issues as I am to blog such a milquetoast opinion. It might also have had something to do with the fact that FOUR of the Supreme Court judges recused themselves, presumably because they had ties to the University of Minnesota.
At most, this case tells us that students in professional degree programs--the Yoder and Byrnes cases involving nursing also come to mind--may be subject to greater speech restrictions online. This doesn't tell us much we didn’t already know. For example, of course law students exposed to client confidences cannot blog or tweet about those, and those that do should be subject to school discipline (and potentially state bar discipline) for doing so.
In this case, the court says "dignity and respect for the human cadaver constitutes an established professional conduct standard for mortuary science professionals." This reflects the unique context of mortuary studies, where cadaver donations could dry up if donors question the post-mortem respect afforded to the cadavers. Even without reference to that definition, I thought Tatro’s posts went one step too far and the university's discipline, while harsh, didn't overrespond--unlike a lot of the cases involving junior high or high school principals, who seems to regularly mete out punishment clearly disproportionate to the violation.
* Suspension for Facebook/YouTube Rap Video Critical of High School Coach Does not Violate First Amendment – Bell v. Itawamba County School Board
* Racy Teen Photos Posted to Facebook Are Constitutionally Protected Speech--TV v. Smith-Green
* Mortuary Sciences College Student Disciplined for Threatening Facebook Posts--Tatro v. University of Minnesota
* Student Loses First Amendment Fight To Call School Officials “Douchebags” After Four Years Of Litigation--Doninger v. Niehoff
* Nursing School Can't Expel Students for Posting Photo to Facebook--Byrnes v. Johnson County CC
* Sending Politically Charged Emails Does Not Support Disturbing the Peace Conviction -- State v. Drahota
* Private Facebook Group's Conversations Aren't Defamatory--Finkel v. Dauber
* Third Circuit Schizophrenia Over Student Discipline for Fake MySpace Profiles
* Private High School Not Liable for Cyberbullying--DC v. Harvard-Westlake
* Nursing Student's Blog Post Doesn't Support Expulsion--Yoder v. University of Louisville
* Principal Loses Lawsuit Against Students and Parents Over Fake MySpace Page--Draker v. Schreiber
* Court Upholds Student Suspension For YouTube Video of Teacher
* Teenager Busted for Creating Fake "News" Story
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