Does “Tinker” apply to college students?

Amanda Beth Tatro was enrolled at the University of Minnesota in the mortuary science program. In her anatomy-laboratory class, she was assigned a human body that had been donated to science. Amanda named him “Bernie.” Donor bodies are used in medical schools and related professions.

While at home on Facebook, she wrote a series of posts including one where she said she wanted to use an embalming tool “to stab a certain someone in the throat.” Amanda said she meant her ex-boyfriend and that he would understand what she meant. In another post, she said she had taken a lock of hair from the cadaver and later posted “give me room, lots of aggression to be taken out with a trocar,” and “perhaps I will spend the evening updating my Death List #5.” A trocar is a surgical instrument used to withdraw fluids from the body.

After the university investigated the case, they decided that 29-year-old Amanda had violated the school’s code of conduct. A faculty member reported feeling threatened by the posts.  The school determined that she had clearly broken an agreement with the school to treat donated bodies with respect and dignity. Amanda was suspended a week before finals and received a failing grade in the class. She was placed on academic probation until she graduated.

Amanda appealed the discipline to the school’s review committee and lost. She took the matter to court on First Amendment grounds. In one of the nation’s first decisions about off-campus speech rights of students in college, the Minnesota Court of Appeals upheld the imposed discipline.

In a decision issued on July 11, 2011,* the court applied the Tinker disruption test and found that the school was justified in it’s discipline. Although no crime had been committed, Tinker authorizes school action when speech materially or substantially disrupts the educational environment.

The court wrote in its decison that “Whether or not Tatro intended her posts to be satire or mere venting does not diminish the university’s substantial  interest in protecting the safety of its students and faculty and addressing potentially threatening conduct. . . . Indeed, the realities of our time require that our schools and universities be vigilant in watching for and responding to student behaviour that indicates a potential for violence.”

Opponents argue that the “true threat” standard should have been used instead of the Tinker test** of disruption or violating the rights of another. “True threat” would have required the speaker to communicate a clear intent to commit a violent act. Since the police didn’t find that a crime had been committed, then the school should not have disciplined Amanda. It was further argued that Tinker applies only to elementary and high school students. Amanda plans to ask the Minnesota Supreme Court to review the decision. In February, 2012, her case was argued before the state supreme court with a decision expected in a few months. However, before a decision was reached, one of the justices recused himself from the case which is now set for reargument in April, 2012. We’ll keep you posted.

Update:  On June 20, 2012, the Minnesota Supreme Court ruled against Tatro.*** They said that her rights were not violated and that she had violated the rules of the school that set professional standards for all enrolled students.

Unfortunately, Amanda passed away on June 26, 2012, reportedly from complications of a nerve disorder. She and her attorney were planning an appeal to the U.S. Supreme Court of the Minnesota Supreme Court’s decision a week earlier.

*Tatro v. University of Minnesota (MN Court of Appeals 2011) 2011 WestLaw 2672220

**Tinker v. Des Moines Independent Community School District, 393 U,S, 503, 513 (1969): a student’s freedom of expression may be restricted only when it causes “material and substantial interference with school work or discipline.”

***Tatro v. University of Minnesota, 800 N.W.2d 811 (MN 2012).