Freedom of speech rights for college students

Case Background

The ACLU of Minnesota filed an amicus brief on behalf of Amanda Tatro in her challenge against discipline imposed on her by the University of Minnesota based on her off-campus online speech. Ms. Tatro was an undergraduate student in the University of Minnesota Mortuary Science Program for students wishing to become funeral directors or morticians. In late 2009, Tatro made several off-color posts on her Facebook page relating to her experiences in the embalming lab. The posts were available to her "friends" and "friends of friends." The posts were read by a fellow student who brought them to the attention of the department director. The department director then met with other faculty about the posts and asked the U of M Police Department to investigate.

Tatro was charged by the University's disciplinary body with violations of a university rule prohibiting threatening conduct, and various mortuary science department rules involving privacy and proper care and respect for deceased persons. The school imposed discipline including probation for the remainder of her undergraduate career, changing her grade in the lab course from a C+ to an F, requiring her to enroll in a clinical ethics course, requiring her to write a letter addressing the issue of respect, and compelling her to complete a psychiatric evaluation. Tatro sought judicial review of the discipline, arguing among other things, that the discipline for off-campus speech violated her First Amendment right to free speech.

The Minnesota Court of Appeals upheld the University of Minnesota's discipline. In arriving at its decision, the Court of Appeals analyzed Tatro's First Amendment claim in the context of case law applied to high school and junior high school students. These cases, including the U.S. Supreme Court decisions in Tinker v. Des Moines Indep.Cmty. Sch. Dist. and Bethel Sch. Dist. No. 403 v. Fraser, assessed students' rights to free speech as "applied in light of the special characteristics of the school environment." Tinker allowed high school officials to restrict student speech when it is reasonably likely to cause a material and substantial disruption of school activities.

The Minnesota Supreme Court granted review of the case. In its amicus curiae brief to the Supreme Court, the ACLU of Minnesota argued that the Tinker line of cases should not apply to college students because of the significant differences between secondary and post-secondary schools in terms of their educational goals, disciplinary needs, and the age and maturity of students. In addition, secondary schools are often considered by courts to be acting in loco parentis (in the place of parents), thus, their role in shaping student morals and values is significantly different from the role of post-secondary education. Because of these significant differences, secondary schools have more leeway to impose speech restrictions than do post-secondary schools and relying on Tinker in this setting was inappropriate. On this basis, college students should have fewer limits applied to their right to freedom of speech.

The ACLU of Minnesota also argued that even if Tinker was properly applied to a post-secondary student, Tatro's off-campus speech did not rise to the level of a material and substantial disruption of school activities that would allow the university to impose discipline for her speech under the Tinker standard.

The Minnesota Supreme Court ruled that the University of Minnesota had a right to discipline Amanda Tatro for off-color comments she made on the social networking site, Facebook. The Supreme Court found that Tatro was not protected by the right to freedom of speech because her Facebook posts violated the Mortuary Science Program's academic guideline rules, which were narrowly tailored and directly related to established professional conduct standards.

Although the ACLU of Minnesota is, on the whole, disappointed in the Minnesota Supreme Court's decision in this case, there are some positive developments as a result of this ruling. The Supreme Court thankfully ended up rejecting the University of Minnesota's request to provide it with a standard of deference even greater than that currently enjoyed by elementary and high school administrations. The Court agreed that the Tinker line of cases was not appropriate in the context of this case as well. The ACLU of Minnesota believes that even under this different university standard, Tatro still should not have been punished and that the First Amendment should have protected her speech.

Tragically, Tatro passed away unexpectedly on June 29, 2012. Although Tatro planned to seek further review of the court's decision, her untimely death makes that impossible. Our deepest sympathies go to her friends and family.


Raleigh Levine, Professor at William Mitchell College of Law


Minnesota Supreme Court