From Facebook to court: U defends discipline

Last week, the University of Minnesota battled a former student over Facebook, student conduct and the First Amendment. But the Minnesota Supreme Court’s ruling will affect more than just the school and Amanda Tatro.
Attorney Jordan Kushner argues before the Minnesota Supreme Court on behalf of his client, former University student Amanda Tatro, on Wednesday at the capitol. Tatro sued the University over disciplinary actions the University took after she posted comments on Facebook the that administrators found threatening.
February 13, 2012

It started with a Facebook status update.

Now, Minnesota’s highest court and the University of Minnesota’s top lawyers are involved, and a debate has ignited about free speech and academic discipline on college campuses.

On Wednesday, the University went head-to-head with a former student in the Minnesota Supreme Court in the court’s first dealings with Facebook and the First Amendment.

Amanda Tatro listened as some of her Facebook posts from 2009 referencing her mortuary science lab were read aloud: She wrote of stabbing someone in the throat and updating her “death list,” among other things.

One of the posts made her professor shake visibly and led multiple faculty members to think they were being threatened. Tatro says the posts were simply sarcasm and pop culture references to vent emotion after a tough week.

The University is defending its discipline, and Tatro is fighting to prove the school violated her free speech rights.

But the case goes beyond mortuary science and Facebook — the ruling’s precedent could affect all universities’ power to punish students for off-campus actions.

The court will decide the case in the next few months. Civil liberties and higher education groups have joined the fight, following the case and filing supporting briefs on either side. Each side says the precedent set by the case will be harmful if the other wins.

‘Stab a certain someone’

Her fiancé had dumped her the night before, and Tatro was up all night crying. At home the next day, she posted on Facebook as a way of telling her family and friends that the relationship was over, she told the Minnesota Daily.

She wrote of wanting to “stab a certain someone in the throat with a trocar” and of updating her “Death List #5.”

Before that, Tatro had posted about getting to “play, I mean dissect, Bernie.” She’d named her cadaver in the lab Bernie.

“I gave him a name because to me, he wasn’t just a body. To me, he was a person,” Tatro said in an interview. She said students often name the cadavers they work on.

Tatro later expressed grief on her profile over losing her “best friend” Bernie and implied that she snipped a lock of his hair and pocketed it.

A fellow mortuary science student reported the posts. Tatro’s professor and Michael LuBrant, the director of the mortuary science program, met with University police, who then met with Tatro.

She said the posts were just venting or joking, according to a police report. Her mother was ill and her fiancé had just broken up with her without reason. Any perceived threat was an overreaction.

She said “Bernie” was from the 1980’s comedy “Weekend at Bernie’s,” “Death List #5” was from “Kill Bill” and the lock of hair comment was a lyric from a Black Crowes song — she didn’t actually take hair from the cadaver.

The police found no crime had been committed after talking to Tatro, and she soon returned to class. But months later, a student conduct committee ruled the posts were threatening and disrespectful — a violation of conduct codes and of rules for the Anatomy Bequest Program, which provides bodies for mortuary science students to learn embalming.

As a result, Tatro’s grade in MORT 3171 dropped from a C+ to an F. She was required to enroll in an ethics course, write a letter to faculty about respect and undergo a psychiatric evaluation.

She was also placed on academic probation for the last year of her undergraduate career.

After Tatro appealed the council’s decision, it went to then-Provost Tom Sullivan and later the Minnesota Court of Appeals, both of whom backed the University. The court said the University didn’t violate Tatro’s rights because what she posted violated University rules.

To Tatro and the civil liberties groups supporting her at the state Supreme Court, the case is about students’ free speech off campus. To the University and the college associations backing it, it’s a matter of campus safety and teaching professional standards.

Not just the U

The University isn’t the only school with an interest in the case.

Many say the precedent will extend beyond just the University’s campus and beyond mortuary science into fields like health care and law.

University General Counsel Mark Rotenberg said there would be a broader impact if the court rules for Tatro. It could mean schools can’t grade students down or require them to write a paper as punishment for violating a code.

“Then our ability to serve the public is gravely undermined,” he said.

The inability to enforce the policies Tatro violated would be problematic, said Angela McArthur, director of the University’s Anatomy Bequest Program.

“We’ll have to rethink what we do and how we do it,” she said. “I think this is cut and dry.”

Five higher education associations filed a brief in support of the University.

Ada Meloy, general counsel for the American Council on Education, which initiated the brief, said she hadn’t heard of any higher education associations supporting Tatro.

In its own supporting brief, Minnesota State Colleges and Universities warned that student misconduct in other professional training programs, like disclosing medical information or facts about a current criminal investigation, can be serious.

MnSCU is interested in the case because of the need to educate students on professional standards in fields like health care or law enforcement, Gail Olson, general counsel for MnSCU, wrote in a statement.

These issues are not unique to Tatro’s case, Meloy said. Similar concerns would arise if a student tried to sue a school over a failing grade, she said.

The groups urged the court to uphold schools’ ability to teach students professional conduct and maintain their power to discipline violators. In some cases, that includes off-campus actions — one point of contention.

Outside the classroom

A win for the University could mean a blow to student rights, civil liberties groups say.

Frank LoMonte, executive director of the Student Press Law Center, said a strong ruling in Tatro’s favor would “restore a sane and sensible balance between authority and freedom of expression.”

But if the University wins, it would expand colleges’ authority “over troublesome speech that annoys them,” he said. Colleges are “licking their chops” at the chance for more authority, LoMonte said.

The University says Tatro’s posts were disrupting to the school because offended people may reverse their plans to donate their bodies after they die.

University media law professor Jane Kirtley said when the school is looking to protect its reputation and its ability to raise money and keep donors happy — missions outside the University’s “educational core” — that reasoning could violate the First Amendment, she said.

Kirtley said she is concerned about the most current student conduct code being vague and overbroad, to the point it could infringe on free speech.

Tatro v. University of Minnesota could be the first test.

Kirtley said she believes public universities have “very limited authority” to control student speech off campus that isn’t directly related to university-sponsored events.

Civil liberties advocates worry that a win for the University could chill all forms of student expression.

“If this punishment holds up, people are going to second guess anything they say about the school, even on Facebook, even on a blog, even in a letter to the local newspaper,” LoMonte said.

Justice Barry Anderson brought up regulating speech at the oral argument.

“University administrators have not exactly covered themselves with glory on the subject of the First Amendment,” he said. “You’ve got speech codes that are imposed for the purpose of limiting speech that somewhere, somehow might make somebody feel uncomfortable.”

But “context matters,” Rotenberg responded. The Tatro case is a very narrow circumstance, and her posts defied professional codes of respect, he said.

Jordan Kushner, Tatro’s lawyer, valued content over context.

“If she talked about specific people she was going to harm, that would be different. But she didn’t,” he said.

“This stuff was too vague to violate professional standards. She did not violate anyone’s confidentiality. If she was to use real names of cadavers, that would be a problem. But she didn’t. She made up a name for a cadaver.”

Kushner said everything should’ve ended when police ruled there hadn’t been a crime.

‘Respecting the dead’

Funeral service programs like the one at the University rely on cadaver donations to educate students.

The University’s Anatomy Bequest Program is one of only two such programs in the state of Minnesota, and it doesn’t just provide bodies for University mortuary science students. More than 3,000 students use the lab in Jackson Hall each year.

McArthur, the program’s director, said these donations may not directly save lives, but do serve an important role in medicine.

“This is the place where surgeons go to learn how to do organ transplants,” she said. “They’re performing surgeries prior to going to live-patient surgeries.”

Because of the sensitivity grief creates for the donors’ families, students who participate have to follow strict rules regarding confidentiality and respect, McArthur said.

“We have to be the custodians of this trust, or programs like this will fail. They’ll fail miserably. People will call and cancel their pre-registrations with us.”

When the American Board of Funeral Service Education heard about the case, Executive Director Gretchen Warner said she knew the group had to get involved.

Warner said there’s no excuse for Tatro’s conduct. The University is accredited by ABFSE.

“We stand for public trust and confidence and respecting the dead,” Warner said. “Cadaver donations are crucial to our program, and the kind of conduct she exhibited totally undermines our ability … to continue educating the students.”

During the University’s initial investigation, Tatro went to the media, McArthur said. And when Tatro went to the media, people went to the phones.

“People were crying. They were calling upset,” McArthur said. “They were so frustrated and saddened and losing sleep.”

She could only tell the callers that the program had a policy in place to guard against situations like this, but Tatro had violated it.

Warner believes Tatro isn’t fit for a job in funeral services.

“Her behavior was unethical and that just doesn’t belong in the field anywhere.”

‘The way we live today’

A couple decades ago —before Columbine, Virginia Tech and tragedies that have followed — the University may have reacted to Tatro’s posts differently.

In light of those events, Rotenberg said, “the idea the U of M shouldn’t have done anything at all to respond to this threat, I think, is itself unreasonable.”

Had Tatro killed somebody after writing her posts, everyone would be accusing the University of negligence, he said.

“It’s very easy to say that the University should have forgotten about it and done nothing about it, sitting here now in 2012,” he said. “An institution of higher education cannot simply say, ‘That’s fine, go ahead and make those kinds of threats with our teaching equipment, and we’ll not do anything about it.’ No.”

In its ruling in favor of the University, the appellate court wrote that the “realities of our time” require universities to respond to any potential student violence. Because of that risk, the University rightly disciplined Tatro for off-campus activity, the court said.

There’s always a balance between “making the campus a closed kindergarten or something where nobody is allowed in or out without a little pass” and a violent free-for-all with no university intervention, Rotenberg said.

“It’s just the way we live today.”

Inside the court

Tatro’s words went from Facebook to the Minnesota Supreme Court more than two years later.

The court’s justices pressed Rotenberg on regulating student speech. They pressed Kushner on respect for donated bodies and violating a signed contract.

Precedent from Tinker v. Des Moines and Hazelwood v. Kuhlmeier — U.S. Supreme Court cases involving free speech in public high schools — came up frequently in briefs and at the arguments Wednesday.

There’s little such precedent for higher education.

Kushner argued that neither case applies to his client because there is a difference between college students and high school students.

The use of Hazelwood in this case worried Kirtley because it was overreaching the original intent of the U.S. Supreme Court, despite many lower federal court rulings that Hazelwood applies to colleges, she said.

Rotenberg said that the very fact that Tatro asked to be in this program means she gets a lower level of free speech protection than students required by law to be in elementary or high school.

“The fact that she’s different than a third grader doesn’t mean that she’s out of any duty to follow our rules,” he said.

Rotenberg could only speculate why the state Supreme Court agreed to hear the case. It’s never tackled Facebook and the First Amendment, he said. As the state’s highest court, it generally takes cases with statewide significance. While the state Supreme Court agrees to hear about 10 percent of cases thrown its way, the U.S. Supreme Court hears between 1 and 2 percent.

Tatro said she hopes the state Supreme Court will rule in her favor so she can move on. She said she isn’t out for money — she wants to clear her name and get on with her life. She’s had trouble getting jobs and internships since the case began. She called herself a harmless person who brings her dogs to nursing homes and does charity walks for animals.

“I hope that I’ll finally get closure to what I didn’t start and that the University will finally leave me alone,” she said after court Wednesday.

When her mom died the day before she graduated, it cemented for Tatro that funeral service, and helping grieving families, is what she was “put on this earth to do,” she said.

If she doesn’t win, Tatro said she’ll appeal to the U.S. Supreme Court. Rotenberg wouldn’t say whether the University would appeal if Tatro wins. The ruling will likely come in the next three to five months.

 “I’ll fight this for the rest of my life,” she said. “They started it, and I’ll finish it.”

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