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SHORT TAKES


June 22, 2012

Some Punishment for Speech Is Reasonable

The Star-Tribune opening paragraph--"The Minnesota Supreme Court on Wednesday upheld the University of Minnesota's discipline of a student over Facebook comments that her instructors found threatening, rejecting claims that flunking her infringed on her First Amendment rights"--couldn't help but raise concerns. Given the judiciary's excessive deference to higher-ed administrators, when courts uphold university actions against student speech, dangerously broad precedents can result.

But the Minnesota decision not only was a reasonable one on the merits, it provided a good model of judicial restraint when the courts consider questions about academic matters.

The case arose after Amanda Tatro, a student in the mortuary studies program, posted a series of crude updates (some of them about the cadaver with which the students were receiving training) on her Facebook page. Some of the comments also seemed to fantasize about violent behavior--although any reasonable person would have been hard pressed to have taken the sarcastic posts literally, as some Minnesota faculty purported to do.

Both sides initially seemed eager for a fight--Tatro's professor lowered her grade to an F, and the university (after an initial decision by the program) placed Tatro on probation. Tatro then went public, claiming a free speech violation, which brought far greater public exposure to her original crude remarks. At that point, according to the court, "the Anatomy Bequest Program received letters and calls from donor families and . . . [o]thers questioned the University about the steps it would take to prevent something like this from happening in the future."

The Minnesota Supreme Court denied Tatro's free speech claims on grounds that her posts "violated academic program rules . . . [that] were narrowly tailored and directly related to established professional conduct standards." Specifically, the Court noted that Tatro's postings--and the subsequent publicity that she initiated about them--could make it less likely that potential donors would bequeath their bodies to the program (it's not clear how the program could function without such donors). The judges observed that the program's rules applied not to students' Facebook posts in general, but only to posts "about cadaver dissection and the anatomy lab." Or, in this instance: "Giving the human cadaver a name derived from a comedy film about a corpse and posting commentary about 'playing' with the human cadaver, taking her 'aggression' out on the human cadaver, and keeping a '[l]ock of hair' in her pocket."

This decision seems reasonable--as the court noted, even Tatro wasn't making an absolute free-speech claim. (She conceded the school's right to regulate "off-campus conduct that violate[s] specific professional obligations.") Moreover, by the time the case reached the state's highest court, the judges had two options: uphold a punishment against a student for Facebook comments; or overturn that punishment, and say it's OK for a student in a mortuary studies program to make crude and tasteless jokes--in public, and in writing--about the cadavers upon whose donations the program itself depends.

This was, in short, a bad case. Neither option was good, and the court chose the better of two bad options. The most important element of the decision was what it did not include--and in this respect, the Minnesota Supreme Court provided a model for how courts can handle such no-good-option speech cases. The court conceded that it was entering previously uncharted waters in trying to address the question of whether "a university's imposition of disciplinary sanctions for a student's Facebook posts that violated academic program rules." But it refrained from a broad ruling.

First, the court explicitly rejected the university's request to evaluate its students' speech according to provisions of Hazelwood, a 1988 decision holding that "educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns." That a major research university would suggest that college students deserve no more free speech than high school students writing for a student newspaper (from which the Hazelwood case originated) doesn't speak well of the University of Minnesota. The court rejected Hazelwood by somewhat circuitous reasoning (the judges claimed that they "did not consider the issue" over "whether the free speech standards that developed in K-12 school cases apply in the university setting"), but nonetheless ruled appropriately.

Second, the court framed its ruling extremely narrowly, arguing that it approached the issue only through the "unique" lens of "the special characteristics of the academic environment of the Mortuary Science Program and its professional requirements." In the broadest terms, the ruling applied to "certain professional programs," and even there only regarding policies that were "narrowly tailored and directly related to established professional conduct standards," thereby shielding liberal arts courses entirely. The court also seemed unsympathetic to allowing "a public university to regulate a student's personal expression at any time, at any place, for any claimed curriculum-based reason."

Contrast the Minnesota court's rulings with other, more dubious, rulings on higher-ed matters. Given her stated willingness to harm future clients, Jennifer Keeton had much less right to a favorable judgment than did Tatro, but the 11th Circuit's ruling dramatically curtailed the legitimate rights of students in the circuit. And, in perhaps the most famous of these excessively broad rulings, Justice Powell in Bakke paved the way for the racial preferences regime that dominates contemporary higher education.

Judicial restraint is a welcome principle, but especially so when courts rule in ways that restrict the speech rights of students.

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