[authors: Neil Goldsmith, Ellen Babbitt]

In the continuing saga involving the intersection of social media, university policy, and student speech rights, a public university’s right to discipline students for social media activity has been further defined and upheld.

In Tatro v. University of Minnesota, the University gave a mortuary science student a failing grade for posting inappropriate comments about her cadaver on Facebook. The University found the student’s conduct to violate the “academic program rules” of the mortuary science department, which were included in the course syllabus. The student argued that the discipline imposed by the University violated her free speech rights. The Appellate Court upheld the University’s discipline, however, and the Minnesota Supreme Court affirmed.

The Supreme Court viewed the academic program rules issued by the department as being consistent with professional conduct standards for morticians and funeral directors. Citing case law from the Sixth and Eleventh circuits, the Court found that a student’s refusal to abide by professional and ethical obligations embedded in curricular requirements is not protected speech under the First Amendment. Recognizing that this was an issue of first impression in any federal or state court, the Court articulated the following legal standard: a public university has the right to regulate student speech on Facebook as long as the restrictions are “narrowly tailored and directly related to established professional conduct standards.” The Court specifically noted that it adopted a narrower standard to “limit the potential for a university to create overbroad restrictions that would impermissibly reach into a university student’s personal life outside of and unrelated to the program.”

Applying this standard, the Court found that the academic program rules for the mortuary science department were narrowly tailored and directly related to established professional conduct standards. Borrowing language from a relevant Minnesota statute, the Court concluded that “dignity and respect for the human cadaver” qualifies as an “established professional conduct standard” in the field of mortuary science. The Court also found that the prohibition included in the academic program rules on disseminating information about a human cadaver was narrowly tailored because it still allowed students to engage in “respectful and discreet” conversations about their experiences with cadavers. Based upon these findings, the Court held that the University had the right to discipline the student because her comments were not limited to personal, private conversations; rather, they were posted over the internet for thousands of others to see.

Although the Court emphasized that the decision was “based on the specific circumstances of this case,” the Tatro holding is noteworthy not only for its adoption of a new constitutional standard, but also for its rejection of previous standards typically used in school speech cases. It specifically declined to use the “legitimate pedagogical concern” and “substantial disruption” standards enunciated by the United States Supreme Court in the longstanding Tinker and Hazelwood cases, finding those standards inapplicable to the facts before the Court in Tatro.

Although Tatro applies by its terms to regulation of students within professional programs, the decision represents a victory for educational institutions nonetheless, and it should be instructive going forward. Despite its narrow holding, the decision provides another useful guideline for public universities to examine as they aim to strike the difficult balance between respecting the First Amendment rights of their students and effectively administering their academic programs.