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A university may discipline a student for social media posts that violate academic rules based on the ethical code of the profession the student is studying to become part of — Tatro v. University of Minnesota, 2012 WL 2328002 (Minn. June 20, 2012)

When a student sues under the First Amendment for being disciplined by the school for his or her expression, a court will likely apply the line of cases stemming from Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), or Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).  Tinker ruled that a school district may limit or discipline student expression if school officials reasonably conclude that the expression will “materially and substantially disrupt the work and discipline of the school.”  Hazelwood said that a school may exercise editorial control over the style and content of student speech in school-sponsored activities if their actions are “reasonably related to legitimate pedagogical concerns.”  But what if the student expression isn’t disruptive per se, and isn’t sponsored by the school, but contrary to the professional code of ethics the students are being trained to follow?  It isn’t unconstitutional for the school to discipline the student for such expression, the Supreme Court of Minnesota recently said.

Amanda Tatro worked on human cadavers as part of the anatomy lab work for the University of Minnesota’s mortuary science program in which she was enrolled.  Tatro agreed to abide by various rules as a condition of being granted access to the cadavers, including the code of professional conduct governing mortuary science students and anatomy lab rules.  The lab rules prohibited “blogging” about the anatomy lab or cadaver dissection.  The lab students were told during orientation that blogging included Facebook and Twitter.

Tatro posted a series of comments on her Facebook page about the human cadaver she was assigned to.  As a result of the comments, the university imposed sanctions against Tatro, including a failing grade in the lab course and placement on probation for the remainder of her undergraduate career.  Tatro sued the school for violations of her constitutional right to free speech.

The court first considered the Tinker and Hazelwood lines of cases, but concluded that neither applied.  The university disciplined Tatro not because her Facebook posts created a substantial disruption on campus or within the mortuary science program, but because the posts violated established rules that require respect, discretion, and confidentiality in connection with work on human cadavers.  The Tinker analysis was therefore inapplicable.  Hazelwood did not apply either because no one would reasonably consider the Facebook posts as speech that the university sponsored or promote.

The discipline was constitutional for a different reason, the court said.  Dignity and respect for the human cadaver is an established part of the professional conduct standards for the mortuary science profession.  The academic rules that Tatro violated were narrowly tailored to the objective of promoting such professional standards.  The rules permitted “respectful and discreet” discussion of cadaver dissection outside the lab in a private setting, but prohibited blogging about cadaver dissection or the anatomy lab, which could reach a wide audience.  Tatro’s Facebook posts, for example, could be seen by the hundreds of people who were “friends” with Tatro on Facebook, as well as “friends of friends.”

LegalTXT Lesson:  Academic programs that prepare students to work in a particular profession may be able to limit off-campus student expression that violates the ethical standards of that profession.  The limits must still be “narrowly tailored” to the interest in training students to uphold professional standards, however, which means blanket bans on student expression often will not pass muster.

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School district not liable under Title IX for harassing Facebook comments posted by students off-campus — Doe v. Round Valley Unified School District, 2012 WL 2064382 (D. Ariz. June 7, 2012)

Is a school liable under Title IX for student-on-student sexual harassment in the form of Facebook posts?  Apparently not, if the posting occurred outside of the “context” of the school.

To bring a Title IX claim against a school for student-on-student sex harassment, one element the student-victim must prove is that the school exercised substantial control over both the harasser and the context in which the known harassment occurred.  In Doe v. Round Valley Unified School District, a female student (Jane Doe) alleged that a male classmate (Rance Allen) sexually assaulted her on three occasions and was abusive toward her in other ways, such as by making disparaging comments about her on Facebook.  After Doe and her parents reported Rance to the police, which led to his arrest and indictment for sexual misconduct, students at the school allegedly criticized Doe on Facebook, making Doe fearful of attending school.  For example, some female students said they wanted to “kick [Doe’s] ass” because they thought Rance’s arrest was unfair.

Doe brought a Title IX claim against the school district.  The Arizona federal district court found the claim faulty on several grounds, including that harassing Facebook postings did not necessarily occur in a “context” over which the school district had substantial control over the harasser.  In a footnote, the court noted that Facebook comments may not be within the school district’s control  if the students posted them off-campus or on their personal computers or phones.

LegalTXT Lesson:  A school district can only do so much to limit student activity off-campus, but it can, and should, take steps to deter abusive social media use occurring on campus, such as by setting rules on when students may use school equipment to access their social media accounts.

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A belated shout-out to Pacific Business News for launching Social Madness, a competition to measure the growth of a company’s social media presence in a bracket-style tournament (a la March Madness, apparently, and hence the name).  Think your company is up to the challenge?  Learn more and enter for a chance to win cash for a charity of your choice.

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Can employers ask job applicants for their Facebook password in a job interview?  Employers and recruiters argue they should be allowed to vet potential employees, and let’s face it–an applicant’s social media profile is likely to be much more revealing than a 30-minute interview.  But what about the privacy rights of applicants?  Some commentators have compared password demands to requests to read a job applicant’s private mail.

Although no law directly prohibits employers from demanding access to the social media accounts of prospective employees, the practice is fraught with legal risks.  Facebook has issued a statement frowning upon password demands and warned that it will “take action to protect the privacy and security of our users, whether by engaging policymakers or, where appropriate, by initiating legal action, including by shutting down applications that abuse their privileges.”  Federal and State legislators are also considering making the practice illegal.  Sen. Robert Blumenthal (D-Conn.) has told Politico he is drafting a bill that will be ready “in the very near future.”  Password demands could also run afoul of federal law.  The New York Times reports that Sen. Blumenthal and Sen. Charles Schumer (D-NY) have asked the Justice Department and Equal Employment Opportunity Commission to investigate whether the practice violates the Stored Communications Act and Computer Fraud and Abuse Act.

The bottom line?  If you’re an employer and you demand to look at the social media accounts of your potential employees, you do so at your peril.