Thursday, February 9, 2012

Should a Student be Disciplined for Being Disrespectful on Facebook?

In discussing ethics with medical students and physicians, it's common for someone to ask: "What does the law say?" I typically respond: "Let's first figure out what we think the right thing to do is. Then we can ask how to do it within the law. If the law says we can't do it, we should check to see if we got our reasoning right. If we still think we got it right, we can consider whether the law can be changed, or if civil disobedience is the path to follow."

On July 11, 2011, the Minnesota Court of Appeals ruled against Amanda Tatro in the fascinating case of Tatro v University of Minnesota. The decision is a heartening blend of law and ethics.

Amanda Beth Tatro was a student in the University of Minnesota mortuary-science program, which prepares students to become funeral directors or morticians. The laboratory courses use cadavers that have been donated to the university.

In November and early December 2009, Ms. Tatro posted the following on her Facebook page. I've added some notes in italics:

Amanda Beth Tatro: Gets to play, I mean dissect, Bernie[this is the name she gave to the cadaver. The name comes from the film "Weekend at Bernie's."] today. Lets 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.[Tatro testified at the Campus Committee on Student Behavior that she was referring to a man who had just broken up with her. But at the campus hearing, faculty members testified that they feared she was referring to them.] Hmm..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.
On April 2, 2010, the Campus Committee on Student Behavior ruled that Tatro should receive a failing grade in the anatomy laboratory class, that she should enroll in a clinical ethics course, that she should write a letter to the mortuary-science faculty on the issue of respect in the profession, and that she should undergo a psychiatric evaluation. Tatro appealed to the court.

Here's the section of the court's decision most relevant to professional ethics:
The university found that Tatro violated rules 6 and 7 of the anatomy-laboratory course rules. Rule 7 states, “Conversational language of cadaver dissection outside the laboratory should be respectful and discreet. Blogging about the anatomy lab or the cadaver dissection is not allowable.” Tatro argues that the evidence does not support findings that she violated these laboratory rules.

..As the university asserts, public comments about “playing” with or taking “aggression” out on a cadaver are inconsistent with the notions of respect and dignity whether they occur in person, on Facebook, in a blog, or via other media.

I believe the court was entirely correct that the university had not violated Tatro's right to free speech. A core component of the profession she was preparing for is respectfulness and discretion. Whether or not the ostensible threats she made should have been taken so seriously (the court concluded that the university was correct to do so), her comments about "Bernie" violate the ethics of her profession. The academic penalty imposed by the Campus Committee on Student Behavior was appropriate. (I don't favor requiring a psychiatric evaluation unless there was a medical reason for doing so that the court record does not convey.)

In entering a profession we "profess" our commitment to the ethics of the profession. The first amendment gives Ms. Tatro the right to speak disrespectfully of "Bernie." But it doesn't give her the right to enter the funeral director profession at the same time!


Ken Kleinman said...

Jim, I disagree with you. Regardless of the judicial decision, students shouldn't be punished for bad judgment outside the course, and the class rules are monstrously invasive and restrictive.

The quoted course "Rules" are entirely inappropriate in attempting to require behavior and attitudes completely outside the course qua course. It would be fine to require the student to know (via an examination, perhaps) that it is unwise to use such language, and that using coarse language about the dead is frowned upon. But what conceivable pedagogical interest is served by attempting to regulate behavior outside the educational intent of the classroom?

Consider the current related issue in Massachusetts, where an embalmer (Troy Schoeller) had his license revoked for making coarse comments to a Boston Phoenix reporter. ( I think it's not possible to argue that the government (as represented by the licensing board) can legally inflict any kind of penalty for what a person says. It's unprofessional of him to speak in such a way, and I would expect him to have trouble finding employment, but the State can't punish him.

Does the fact that Ms. Tatro is a student reduce her rights to this great degree, that she should suffer monetary damages for speaking her mind?

Suppose I teach a political science class, and institute a rule that no one is to express a political opinion, or blog about it, or attend a demonstration? Would that be a rule it was acceptable to enforce?

Much as the faculty of this course might wish it, they do not and cannot control the thoughts, feelings, and expressions of their students. Personally, I'm grateful to the students of an earlier generation for freeing us from the paternalistic conformity that used to pervade higher education, and I find it depressing that the faculty here believe they should be able to punish their students for their thoughts and expressions.

Jim Sabin said...

Hi Ken -

Thank you for your spirited defense of free speech! But I'm not persuaded.

If you told your class they couldn't express political opinions that would have no justification. They're taking a class, not entering a profession with commitments that have been "professed' (in medicine) for 2500 years. Of course your students are free to express their opinions. And Ms. Tatro should be free to transfer to any other University of Minnesota program she is qualified to enter. But she is rightly disciplined in the context of a health professional program.

I can speak most fully for what the concept of "profession" means with regard to medicine. On graduating from medical school students take an oath. That's not just a ritual - it reflects a promise to do such things as put the interests of the patient first, maintain the confidentiality of what one hears, and, for Hippocrates, do no (avoidable) harm. These represent voluntary constrictions of freedom. One is free not to take the oath or to enter the profession. But one isn't free to claim to be a member of the profession while violating core commitments.

That's how I see it. I would have voted with the Minnesota committee to discipline her.

It's always great to hear from you!



Ken Kleinman said...

Thanks, Jim. So, help me understand where our difference of opinion lies.

My argument is not so much about free speech or the student's right to public education.

As I see it, there is a bright line between education and profession. It is acceptable to require students to know what the ethical requirements of their intended profession are. And I suppose evidence against a person's ethical appropriateness might be accepted when considering professional accreditation. And would certainly be appropriate when considering removing such accreditation. But denying a student knowledge, or denying they learned the material in a course, because of their opinions (or the way they chose to express them)?

As I read your response, you see a connection between the education and the profession that differs between medicine and other disciplines. In my example of political science, students are merely "taking a class," while students like Ms. Tatro are "entering a profession." Wherein lies that difference? What is special about mortuary science that students in mortuary science can be held to standards of behavior outside the classroom that would seem unreasonable in other areas?

Let's try another example. Suppose I run a course to meet the requirements for accreditation as nutritionists. Can I require students to avoid blogging about 1) the bland taste of recommended diets, or 2) about how much they love the flavor of a good fatty steak? Or 3) how uncomfortable they feel around fat clients?

I'm not sure of the relevance of the Hippocratic Oath in this discussion. (I have a great respect for it, though no profession I know of has more or fewer members who take their obligations seriously.) But I note that the Oath is required of doctors before they enter the _profession_, not before they begin _education_. Do you think this should be changed?

Jim Sabin said...

Hi Ken

Thank you for carrying this discussion further. The points you raise are very important.

A key component of the implicit contract between professions and the societies they are part of is that society grants privileges to the profession (for the medical profession - licensure, sanction for activities like prescribing medications, respected status, and much more), while members of the profession commit themselves to social values. The profession as a whole commits itself to monitoring its ethics.

In many health professional schools (not just medicine) there are ceremonies - often called "white coat ceremonies" - which signal that the student is entering a new realm of professional responsibility, even though it's currently in the status of student. As a student of mortuary science, interacting with a cadaver is akin to interacting with a patient. To the best of my knowledge all religions prescribe rituals of care and respect for dealing with the dead, and this "sacred" responsibility should carry over to mortuary science practice, and to the responsibilities of students in that field.

If you were teaching a college religion course and a student posted on Facebook that "God is a hoax, a delusion, and a criminal" you might bring that into class as an important perspective for discussion. But if you were teaching at a seminary you would question whether the student belonged in the program.

I don't see that as a freedom of speech issue but one of professional ethics. Ms. Tatro had petitioned for entry into a profession and, in the eyes of her faculty, violated values that her petition for entry had committed herself to.

Thank you for pushing me to articulate my views more clearly!