An Exploration And Analysis
To post or not to post is the “million-dollar” question for teachers, faculty, students, and educational practitioners who have successfully transitioned to eLearning and remote learning as a result of the COVID-19 pandemic. The First Amendment of the Constitution protects citizens’ rights to “freedom of religion, expression, assembly and the right to petition (U.S. Constitution).” It is remarkable that the concerns during our nation’s earliest years are still applicable today in a post-COVID-19 pandemic era.
eLearning and remote learning platforms, where a great amount of instructional practices occurs after the COVID-19 pandemic, are a new frontier for potential legal adjudication. In recent years, our nation has also witnessed violence and divisiveness at protests, rallies, and demonstrations on many college campuses. We have witnessed a decline in civility, tolerance, and acceptance of differing viewpoints. Transitioning to eLearning and remote learning has not eased this growing tension and the need for all individuals to freely speak up and voice their differences and points of view.
As such, our educational institutions are facing a concerning dilemma, that of finding the balance between living the mission of higher education and protecting the First Amendment rights of students who are using an online or eLearning platform. This issue is not new. Incidences of similar challenges can be found in our nation’s court records in different states. However, it is the compounding impact of this, with the current high usage of eLearning and remote learning courses, that is new and that poses a great dilemma and potential legal implications for educators.
Shelton V. Tucker
Two of the most important responsibilities for schools and institutions that have transitioned into remote and online courses are promoting and supporting the First Amendment and protecting the campus community. As noted in the 1960’s case of Shelton v. Tucker, “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools (Shelton v. Tucker, 364 U.S. 479, 487 1960).” The ruling in this case went on to address college classrooms and campuses as a “marketplace for ideas” and referenced our “nation’s dedication to safeguarding academic freedom (408 U.S. at 180–81, Shelton v. Tucker, 1960).”
Tinker V. Des Moines Independent Community School District
A “keystone case” pertaining to protecting First Amendment rights is Tinker v. Des Moines Independent Community School District (393 U.S. 503, 1969). In this case, the court ruled that non-disruptive exercises of free speech could not be punished by suspension from school. Judge Abe Fortas’s majority decision in Tinker case: students don’t forfeit their constitutional rights “at the schoolhouse gate,” however, behavior cannot disrupt coursework or involve substantial disorder. The second part was written as a caveat and is referred to as the “material and substantial disruption test (Tinker v. Des Moines Independent Community School District, 1969). Although this case corresponded to a secondary school, future cases attributed some principles from the case to post-secondary education.
The ruling in this case also maintains that “to justify prohibition of a particular expression of opinion, you must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint (Tinker v. Des Moines Independent Community School District).
The great dilemma for expression of opinion in courses that are offered remotely or on an eLearning platform is: How can we apply the Tinker v. Des Moines Independent Community School District ruling into posts and expressions or opinions shared by students in an online learning platform? Should the standard of application be the same as it is for non technology platforms or should it be a lesser standard varied from case to case? The courts are still grappling with this and struggling to apply the rule on a case-by-case basis.
Healy V. James
One case of note that applied the principles to events at the university level was Healy v. James (408 U.S. 169, 1972). The courts maintained that “State colleges and universities are not enclaves immune from the sweep of the First Amendment.” Freedom of expression for students is protected mainly by the free speech and press provisions in the First Amendment of the U.S. Constitution, which applies only to “public” institutions (see Coleman v. Gettysburg College, 335 F. Supp. 2d 586, M.D. Pa. 2004). In some situations, student freedom of expression may also be protected by state constitutional provisions (see Section 22.214.171.124 and the Schmid case in Section 10.1.2) or by state statutes (see, for example, Cal. Educ. Code §§ 66301 & 76120 (public institutions) and § 94367 (private institutions), Healy v. James, 1972).
Although the cases mentioned provide clear protections for the freedoms of expression and speech, the First Amendment does not specifically note or cover expressions in online classrooms, eLearning platforms, or remote class settings. Despite acknowledging that the expression of opposing viewpoints could lead to a disagreement, the Court’s opinion was that the Constitution must take this risk and allow freedom of expression as our openness is “the basis of our national strength.”
Privacy Concerns And Rights
Another issue is that of privacy concerns and rights of students and faculty in the classrooms. In Burnside v. Byars, the courts maintained that “It is not ok to suppress and ignore expressions of feelings with which they do not wish to contend (Burnside v. Byars, 363 F. 2d 744 – Court of Appeals, 5th Circuit 1966).” In this example, Ruthie Robertson’s opinion was contrary to Brigham Young University-Idaho’s ideal of non-acceptance of homosexuality but was little more than an “expressions of feelings with which they do not wish to contend (Burnside v. Byars, 363 F. 2d 744 – Court of Appeals, 5th Circuit 1966).” The expression of her belief was not obscene, the speech was not part of and did not affect her classes, it did not disrupt the universities ability to maintain its core mission of education and there was a reasonable expectation of privacy.
With the offering of eLearning courses to schools and colleges, there is a reasonable expectation of privacy of information in an online classroom setting or forum. The courts have not held a single opinion on this topic after the post-COVID-19 pandemic. However we can expect potential litigation or questions of law and privacy in an eLearning setting to be addressed in the near future. In the case of Rubino v. City of New York, the courts held that “her expectation that only her friends, all of whom are adults, would see the postings is not only [*8] apparent, but reasonable (Matter of Rubino v. City of New York, 2012 NY Slip Op 50189 – NY: Supreme Court 2012).”
Educational institutions must be mindful of their basic priorities to provide students with access to new ideas, opinions, cultures, and experiences. Additionally, institutions owe a duty to teach students how to interact with individuals who have different ideas, opinions, cultures, and experiences in an online classroom platform. This responsibility is frequently referred to as “the Tinker test.”
In the keystone case of Tinker v. Des Moines Independent Community School District (393 U.S. 503, 1969), the courts noted that “schools have a responsibility to instill students with ‘habits and manners of civility as values’ (Tinker v. Des Moines Independent Community School District, 1969).” Institutions of education must use those principles of the Tinker case to prepare students for the realities of expressions and speech that await them in an online classroom. The best, safest place for students to develop in their manner, opinions, and behavior are within the protected confines of their college or university. Administrators must honor their responsibilities to their students, above and beyond their personal beliefs.
Educational institutions must make the best decisions for the community they lead and they must lead by example.