In a decision released this morning, the Minnesota Supreme Court ruled that the University of Minnesota did not violate a student’s free speech rights when it punished her for Facebook posts related to her coursework in the mortuary science program.
It is an important ruling for student freedom of speech, especially as the line between what counts as “on campus” and “off campus” blurs. Like most big rulings, we’ll have to wait and see what other courts do with it before we really know what to think. But here’s why I think it raises more questions than it answers, and could be deeply troubling for all students’ First Amendment rights:
I wrote a little about the case before the oral arguments four months ago, but basically it is among the first in the nation to directly address the question of how much power universities should have to punish students for speech posted online and off campus.
Importantly, the court chose not adopt either the Tinker standard for regulating student speech, which extends to speech which causes a “substantial disruption” at school, or the Hazelwood standard, which allows schools to impose sanctions when “reasonably related to legitimate pedagogical concerns.” Both of these standards arose in the context of High Schools or below, so of course the nagging question was whether we want to treat college students the same as kindergartners when it came to First Amendment rights. (No, right? No.)
Citing the “special characteristics” of the U’s mortuary science program, here’s the standard the court adopted:
"We hold that a university does not violate the free speech rights of a student enrolled in a professional program when the university imposes sanctions for Facebook posts that violate academic program rules that are narrowly tailored and directly related to established professional conduct standards.
Here are a couple of problems that this standard raises:
1) How do you define a “professional program” for purposes of this standard?
Good question, and the court doesn’t really offer an answer.
You can understand why the court would want to be vague about this; they don’t want to get much into the business of telling universities how to educate students. (The justices’ discomfort about this was palpable at the oral arguments.) But most college students like to think of any academic program as a “professional program” in the sense that it should lead to them becoming professionals at some point. And one can certainly see where rules like “don’t make crude jokes about cadavers on social media” are similar to other accepted professional standards like “don’t criticize your colleagues” or “don’t plagiarize.”
The court tried to clarify by including the “narrowly tailored” and “directly related” language, but as we’ve seen with the Hazelwood standard, “directly related” can have a hazy meaning when we’re dealing with educational goals versus students saying dumb things. The court also added a somewhat vague footnote: that a university “cannot impose a course requirement that forces a student to agree to otherwise invalid restrictions on her free speech rights.” Well, yeah. But isn’t that exactly what we’re talking about here?
This, of course, brings us to the other problem: it’s one thing to rule that, for example, a journalism school can punish a student for plagiarizing in a newswriting class—that’s clearly an “established professional conduct standard.” But can the school also punish the student for plagiarizing while on an internship for the local newspaper, or on his personal blog?
2) So, universities can regulate off-campus speech?!
As I said, this was really a key problem in this case, and it looks like the Minnesota Supreme Court’s answer is “well, yeah, kinda… maybe.”
Specifically speaking, in its opinion the court notes that Tatro and her supporters on the case raised the concern about universities being able to regulate speech both on campus and off campus. The justices say “we acknowledge the concerns … that adoption of a broad rule would allow a public university to regulate a student’s personal expression any time, at any place, for any claimed curriculum based reason,” but later, in a footnote, states, “our analysis does not make a distinction between on-campus and off-campus Facebook posts.”
So, the court acknowledges the concern, but punts on the issue. But by not making a distinction for purposes of analysis, in my mind the court de facto concludes that it doesn’t matter whether the speech is on campus or off campus. So, to take my hypothetical about the plagiarizing journalism student for example again: if a court concluded that the journalism school’s rule against plagiarism was “narrowly tailored” and “directly related to the established professional conduct standards,” then it could rule that it would not violate his First Amendment rights to punish him for plagiarizing on his personal blog.
If I’m right, then that’s deeply troubling. Am I right?