Under the existing Tinker (“Tinker v. Des Moines Independent Community School District”) standards, should the online speech, created by Ms. Erikson on her private laptop, outside the schools premises and without intentionally targeting the students at school be considered on-campus?
Should the actions of Ms. Erikson, which neither reached sufficient magnitude in the classroom, nor made the students unable to participate in the classroom discussions, nor required the school administration to pull down their ordinary duties, as well as did not create a hostile environment to the defendant, so that he could not attend classes, be considered substantially disruptive?
SUMMARY OF THE ARGUMENT
The motion to dismiss defendant’s claim should be affirmed due to the following arguments. Firstly, the conduct of Ms. Erikson was entirely off-campus, and therefore, it was not subject to the scope of decisional power of the school administration. Secondly, the conduct of Ms. Ericson did not cause substantial disruption of the academic environment at school, as well as the infliction of such disruption was not objectively foreseeable to the school administration.
Firstly, in order to be considered on-campus, the speech either should happen in the school premises, or should be about school-related subjects Wisniewski v. Bd. of Educ. of the Weedsport. In particular, is especially important to understand the difference between private activities of the students, and those activities, which may affect a school environment. In our case, all information published on the web page operated by Ms. Erikson contained the information, which should have been understood as the information, which constituted private relationship between Ms. Erikson and the defendant.
Moreover, the conduct of Ms. Eriksen cannot be considered on-campus, because it did not reach sufficient number of school-related recipients to be considered. The case details demonstrate that the website operated by the defendant had global audience, meaning that she focused on spreading the information all over the world, not only at schools. One of the most indispensable elements of the on-campus speech is that it should be targeted on the students of a specific academic institution Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist., 494 F.3d 34. This was not present in our case; the defendant specifically highlighted on her website, that it was created for the swimmers, not for the students of her educational establishment. For Ms. Erikson it was not reasonably foreseeable that someone from the school could have accessed her website from the school, therefore, this form of her speech could not be considered school-related, because she never popularized her web-blog at school.
Secondly, the conduct of Ms. Eriksen did not cause, and could not have caused a substantial disruption of the school learning environment because they did not result in a distraction of the school academic staff from their duties.
In Tinker v. Des Moines Indep. Cmty. Sch. Dist., the Supreme Court of the United States of America ruled that the speech of a student may not be restricted, unless it materially and substantially interferes with the requirements of appropriate discipline at school, as well as unless the school administration could reasonable foresee such disruption. There are several criteria used by the courts used to understand whether the actions of a disciplined student could constituted or could have constituted a substantially disruptive environment.
Firstly, in Beverly Hills, 711 F.Supp.2d case the court ruled that in order to understand whether speech of a student is substantially disruptive ‘the magnitude of discussions in the classroom should be analyzed in connection with the impact inflicted on the academic progress of this class’. In particular, the court ruled that the discussions should be so intense, that the students fail to participate in the academic process effectively. Yet, there is no evidence demonstrating that academic progress of any student in the defendant’s classroom suffered as a result of discussions, which ensued her verbal confrontation with the allegedly aggrieved party
The second element of the test was developed by the Harrell, 2009 WL 3562732 case, which requires many students to stop participating in the classes because of the hostile environment created by the actions of a disciplined student. Yet, in our case there are no evidence demonstrating that a single student from Ms. Eriksen stoppen attending the school, or that the academic performance of any student deteriorated.
The third element of the standard is the one, which was developed in the Doninger v. Niehof, 642 F.3d 334, 345–47case, where the court ruled that the environment is substantially disrupted when the teachers are pulled down from their ordinary tasks to respond to the situation. In our situation not a single teacher was forced to leave her/his working commitments.
Finally, in Bowler v. Town of Hudson, 514 F. Supp. 2d 168, 177–78 case the court ruled that the school administration may discipline a student, when substantial disruption was objectively foreseeable to the school administration. This foreseeability must be based on the objective grounds, and not on the ‘undifferentiated fear or apprehension of disturbance”.
