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Information on this site is for educational purposes only and is not intended as legal advice. If you have a legal problem, consult your institutional counsel or an attorney licensed to practice law in your state. Information and views presented in this blog are solely those of the individual contributors and not their employers.


National Conference on Law and Higher Education -- Register Now!

Stetson University College of Law will be holding its 38th Annual National Conference on Law and Higher Education in Orlando, Florida from February 9 through 13, 2017. More information, including online registration and a schedule of events, can be found online at this link.

This is always a great event, coordinated masterfully by Professor Peter Lake and Higher Education Law blog's very own Mercy Roberg.  Nearly all the contributing editors to this blog have participated in the conference in the past, and many of us will be there again this year. 

I hope to see you in Orlando in February!


New year, new threats to academic freedom

As many of us embark on a new semester, it seems prudent to reflect on some of the "revinvisioned" (so to speak) avenues by which academic freedom is coming under attack.

Traditionally I think most people think of academic freedom restrictions related to speech--and that is mostly true. But interestingly, and frighteningly, academic freedom has been challenged in new, slightly more surreptitious ways. Florida has a law that prohibits the use of state funds (which courts have interpreted to also include private grants and donations) for research in certain countries. Climate change scientists have come under attack, and open records laws have been utilized as a means of intimidation. Most recently a website has sprung up seeking to identify professors who "discriminate against conservative students and advance leftist propaganda in the classroom." And then of course there was that incident in which Wisconsin governor Scott Walker tried using subpoena power to obtain faculty emails that he deemed subversive. The issues in that state continue, as in the past few months legislators have called for the cancellation of "controversial" courses and have threatened funding if certain aspects of academic freedom do not conform with what lawmakers deem appropriate. (May I direct them to the 1915 AAUP statement: "[I]t is highly needful, in the interest of society at large, that what purport to be the conclusions of men trained for, and dedicated to, the quest for truth, shall in fact be the conclusions of such men, and not the echoes of the opinions of the lay public, or of the individuals who endow or manage universities.")

Faculty can fight back. The United Faculty of Florida chapter at Florida International University recently announced that its collective bargaining contract includes stipulations regarding academic freedom and grievance procedures for such violations. And faculty and administrators MUST ALSO join the fight. The FIRE organization, (or Foundation for Individual Rights in Education) litigates and negotiates on behalf of those whose free speech rights have been violated. There have been instances where students groups with a minority opinion, or perhaps deemed offensive, have been sanctioned or pushed off campus. To paraphrase Will Creeley, VP of Legal and Public Advocacy at FIRE, it is not right and just to quash speech that we do not view as right and just. All opinions should be allowed to be voiced, and it is the role of the university to engage students in productive, critical, and civil debate.

As we prepare for a new year, new semester, and new presidential administration, let's work to protect the rights of all.





NLRB rules on Northwestern U football, this time regarding social media

In late September (and released last week), the National Labor Relations Board regional office issued an advice memorandum striking down portions of Northwestern University's media policy governing student-athletes interactions with the media as well as their own social media postings.

Among the items that NLRB found too restrictive were the university's requirement that media interviews be pre-arranged by the athletic department, and that student-athletes were not allowed to speak of their health or grievances with the team or other players on their private social media accounts.

Finding that such restrictions were "unlawfully overbroad," the NLRB did allow Northwestern to amend its policy to restrict posting nude photos, sexual or racial epithets, and photos depicting hazing, harassment, weapons, and substance use. This was done to strike a balance between players' rights and team management.

The ruling applies only to private institutions participating in NCAA football. Public institutions would be governed by their respective state labor laws.


Status quo for the status quo in college athletics

Earlier this week, the Chronicle of Higher Education reported that the U.S. Supreme Court declined to hear the NCAA's appeal in the much-publicized Ed O'Bannon case, leaving stand an appellate court decision that upheld a district court ruling finding that the practice of utilizing players' likeness and image without compensation--even after the student-athletes' playing days were over--violated antitrust law. Those from the student-athlete camp were hoping that a Supreme Court ruling might broaden the issue so as to mandate compensation for live and archival broadcasts. (The appellate court struck down the district court's ruling that players receive in trust $5,000 per year of eligibility, citing that this went against the NCAA's historic practice of preserving the ideals of amateurism.)

The issue, however, is not dead. Slated to appear before the same California district court judge that ruled in O'Bannon is the case of Martin Jenkins, who argues the NCAA violates antitrust law by capping athletic scholarships. He argues that student-athletes should be able to compete for the best grant-in-aid, based on their desirability among college recruiters.

For more on the Jenkins case as reported by Sports Illustrated, click here. For previous coverage on the O'Bannon case on this blog, click here and here.



Tinkering with Tatro: When Social Media Posts Violate University Academic Program Standards 

In Tinker v. Des Moines Independent Community School District, the Supreme Court stated that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  The Court reinforced the importance of freedom of speech in schools in promoting citizenship and the marketplace of ideas.  However, the Supreme Court also recognized that schools need to maintain order and discipline to advance their mission. In Tinker, the court held that schools may discipline students for speech that causes, or can reasonably be predicted to cause, a “substantial disruption of or material interference with school activities.”  Although it was decided in 1969, Tinker remains a key case on student free speech. However, social media, such as on Facebook and Twitter, is causing higher education administrators to expand the bounds of the university’s authority to discipline off-campus posts. 

Tatro v. University of Minnesota is a compelling example for this need of further definition of the boundaries of student free speech on social media as it relates to violations of academic program rules.  There is danger of public universities applying the standard from the Tatro case too broadly resulting in diminished students’ rights to expression while they are off-campus.  Tatro, a mortuary science student at the University of Minnesota, posted statements on Facebook in 2009 that were found to be in violation of the university’s student code of conduct.  The posts were deemed to be threatening by the University’s Campus Committee on Student Behavior (CCSB) and in violation of the Mortuary Science academic program rules, with the latter being the more serious charge.  Sanctions were administered, including an F in a single lab course, but Tatro was allowed to continue in the program.  Tatro appealed this decision arguing that the University violated her free speech rights.  The decision of the CCSP was upheld by the provost.  Ultimately, the Minnesota Supreme Court upheld the university’s decision.

Tatro’s argument was that public university students are entitled to the same free speech rights as members of the general public.  Tatro cited Healy v. James, that “state colleges and universities are not enclaves immune from the sweep of the First Amendment” and further, that colleges and its surrounding environs are peculiarly the ‘marketplace of ideas.” However, the main charge against Tatro was the violation of the Mortuary Science program rules that required cadavers to be treated with “the utmost respect and dignity” and the conversation outside labs about human dissection should be respectful and discreet.  Blogging about the anatomy lab or the cadaver dissection was expressly prohibited.  The discipline concentrated on the following four posts:

  • ·      Amanda Beth Tatro Gets to play, I mean dissect, Bernie today.  Let’s see if I can have a lab void of reprimanding and having my scalpel taken away.  Perhaps if I just hide it in my sleeve.
  • ·      Amanda Beth Tatro Is looking forward to Monday’s embalming therapy as well as a rumored opportunity to aspirate.  Give me room, lots of aggression to be taken out with a trocar.
  • ·      Amanda Beth Tatro Who knew embalming lab was so cathartic!  I still want to stab a certain someone in the throat with a trocar though.  Hmmm., perhaps I will spend the evening updating my “Death List #5” and making friends with the crematory guy.  I do know the code.
  • ·      Amanda Beth Tatro Realized with great sadness that my best friend, Bernie, will no longer be with me as of Friday next week.  I wish to accompany him to the retort.  Now where will I go or who will I hang with when I need to gather my sanity?  Bye, bye Bernie.  Lock of hair in my pocket.  

The university argued that it acted within its constitutional rights when it enforced academic program rules that are “reasonably related to the legitimate pedagogical objective of training Mortuary Science students to enter the funeral director profession,” citing the Hazelwood legitimate pedagogical concerns standard. The Hazelwood “school-sponsored” speech standard comprises “expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school.”  Expressive activities include those that are characterized as part of the curriculum, in or out of the classroom, as long as they are supervised by faculty and designed to impart knowledge. Are a student’s private Facebook posts within the scope of the legitimate pedagogical concerns standard?  Applying this standard would give universities broad authority to constrain controversial or offensive social media activity by requiring only that a school’s actions be “reasonable related” to “legitimate pedagogical concerns.” This may be creating a slippery slope.

Ultimately, the Minnesota Supreme Court determined that Tatro’s speech was not protected because her Facebook posts violated the Mortuary Science program’s academic rules, which were narrowly tailored and directly related to professional conduct standards widely recognized in the profession.  The ACLU of Minnesota expressed disappointment with the decision stating that Tatro’s speech should have been protected, but they were pleased the court rejected applying the Tinker standard.  

Levin (2016) notes that despite the proliferation of student speech on social media, federal and state courts remain divided on how much First Amendment protection should be granted to students’ off-campus social media posts.  Beckstrom (2008) stated that the discipline of off-campus speech should be carefully considered limiting speech that can be classified as a true threat or crime.  The Tatro case highlights the need for greater definition of the boundaries of restriction on student speech in post-secondary schools.  

This post was co-authored by Ms. Shannon Jesme and Dr. David Nguyen. Ms. Jesme is Vice President for Administrative Services at Northland Community and Technical College and a Ph.D. student in the UND Higher Education program.