MARSHALL ERIKSEN and LILY ERIKSEN, on behalf of their daughter, R.E., a minor,
Plaintiffs-Appellants,
v.
GULF BREEZE COUNTY PUBLIC SCHOOLS, a political subdivision of the State of Florida, and AMY FOWLER, Principal of Cape Fear High School, in her official capacity,
Defendants-Appellees.
The Conduct of the Plaintiff was not a School-Related Activity
Firstly, in Wisniewski v. Bd. of Educ. of the Weedsport Ctr. Sch. Dist., 494 F.3d 34, 39–40 (2d Cir. 2007) the court ruled that in order to be deemed as school-related activity, the defendant must foresee that the message created in an off-campus setting would reach a substantial number of school staff or students. In particular, in this case the school the student sent messages directly to other members of the school. The message contained a violent icon, which depicted a pistor firing at one of the school professors (the face was recognizable) and was sent via one of the popular online messangers. The professor claimed that these messages violated the school policies and successfully sought suspension of that student, which was subsequently challenged in court, arguing that this activity was a private correspondence. Yet, the court took a stance that because the sender of that messages deliberately sent them to other students of the same school, and because the number of recipients was substantial (20), the judge decided that this activity was school-related irrespective of the fact that the student communicated with the others off-campus. 494 F.3d 34, 40–41 (2d Cir. 2007. However, in our case the web-site created by the plaintiff was not positioned as a platform for the school students communication, not the plaintiff purposefully send messages to anyone. Instead, the main idea behind creation of the web-site was sharing information about swimming events, Olympic rules and other material, which intended recipients were only those, interested in swimming. The site headline specifically highlighted that the platform was ‘for swimmers only’ (not for students). Eventually, the platform attracted versatile audience (even from other countries), and there is no persuasive evidence demonstrating that the primary group of visitors was from the high school in question. The records of the case do not reveal the number of web-site visitors, and most importantly, they do not reveal the number of students of the same school, who saw the comment. Yet, they precisely state that the website is mostly visited by swimmers, not necessarily from the same school. Coupled with the fact that the plaintiff has not sent this post purposefully to anyone, it is reasonable to conclude that the number of the message recipients was not a substantial one (many people might have seen it, but they are not from the same school), which precludes the defendant from arguing that the post was school-related because of the large number of recipients.
Secondly, in Evans v. Buyer the court ruled that the speech becomes on-campuss and thus regulated by the school administration when it is aimed at particular audience at the school. 684 F. Supp. 2d 1365 (S.D. Fla. 2010). In that case a student created a group on Facebook, where she made a post about her dislike of a teacher. Although the post was subsequently removed, the principal suspended the plaintiff for several days and applied other disciplinary measures. However, the court ruled that a Facebook page was not made at campus, because the student made it off-campus and never accessed it on-campus. 684 F. Supp. 2d 1365 (S.D. Fla. 2010). Similarly, in our case the post was created on a website with global audience, which is positioned as a platform ‘for swimmers only’, not for the students. The plaintiff received attention of the vast audiences and never intended to spread the news in the campus. Therefore, her online remark does not qualify as a school-related (campus) speech.
Thirdly, in Shanley v. Northeast Independent School District the court argued that when the contents of a message are not libelous, inflammatory or obscene, the burden of proof that these material relate to the school activities lie on a school administration. In this case, the group of students created a controversial newsletter about the use of marijuana use, and started to disseminate it among the students. Yet, the newsletter contained nothing libelous, inflammatory or obsence, thus not qualifying under the Tinker standard. 462 F.2d 960. Among other issues the court ruled that restricting the expression of students, when the sole basis is that some officials, parents or other students object to its content is not tolerable under the law. In particular, criticism directed under other students, even if takes the most extreme forms is allowed under the law.In our case, the materials published by the plaintiff are indeed controversial – it is not yet clear what she intended to commit. However, they are neither libelios, nor obscene or inflammatory, since they do not expressly or impliedly dissiminate false statements, offend or provoke any specific negative action.
In Emmett v. Kent School District No. 415 the court ruled that the creating fake online obituaries for revengeful purposes was not a matter of school interest, but a form of private relationship between the students. In that case a student created an online obituary on a site, where he specifically indicated that the site was ‘an unoffical site of the school’, where the classmates were suggested to post comments and to decide who would be the next obituary target ‘for fun’. 92 F.Supp.2d 1088 (2000). This case is relevant for our scenario because of the two reasons. Firstly, the court determined that the statements, which do not intend to bring emotional distress to the target, should not be understood as disruptive, thus they do not qualify under the concept of unauthorized school-related activity. Similarly to Emmet, in our case the comments were presented in humorous way.
Then, in Emmet the court ruled that private relationships of the students settled online can not become the basis of a disciplinary action of the school administration, as long as they are not school-related activities. In that case the plaintiff created obituaries for the students he disliked without intent to distress them emotionally, and the court ruled that it was a constitutionally protected form of freedom of speech.92 F.Supp.2d 1088 (2000). In our case, the plaintiff wrote that she intended ‘to ruin’ the allegedly victimized person because he initiated a class petition to enjoin her from getting a leading drama role, which was important for her college scholarship. Naturally, this action exasperated her. Her past performance, both academic and social indicates that she is in no way inclined to intetionally bringing emotional distress. As an academically proactive person and a dedicated college athlete, her first priority was getting a college scholarship, and a reasonably prudent person would understand that her intentions were anything, but aimed at distressing anyone, including the alleged victim.
Finally, in Killion v. Franklin regional a student created a derogatory top ten list about the athletic director and emailed it to several friends, who distributed the it at school. The student was banned from school activities, and his parents sued the school. Among other issues (faliure to satisfy ‘substantial disruption test’and Fraser campus test) the cort ruled that the school policies in relation to permissible online conduct was vague and indefinite.136 F. Supp. 2d 446 (W.D. Pa. 2001). In our case, the court records do not indicate that such policies even existed, not to mention whether they are explicit and duly communicated to the students n general and to the plaintiff in particular. In the absence of such notification, this online conduct of the plaintiff should not be considered school related.
The Actions of the Plaintiff Have Not Substantially Disrupt the School Environment
In T.V. v. Smith-Green Community School Corporation the court ruled that in order to qualify under the Tinker standard, the actions of the alleged violator should disrupt educational process or have high probability of potentially disrupting it. In that case, the students posted several photos from a ‘slumber party’ of the female students, which, in accordance with the view of college administration could result in a disruption of the educational process, because the ‘heroes’of the photos can be socially stigmatized No. 1: 09-CV-290-PPS, 2011 WL 3501698 (N.D. Ind. August 10, 2011) . Yet, in accordance with the court ruling the actions of the plaintiff have not established any substantial risk of disrupting the educational process, when the information dealt with private relationships (not relating to the curricular activities) between the students only. In our case, the remark left on the website administered by the plaintiff was entirely personal and vague enough to communicate any specific school-related behavior. Because she promised ‘to ruin’ him, it is reasonable to argue that either her intetions were vague, or she meant something known to her and the alleged victim. These events of this case were quite commonplace for a typical teenage environment – out of some personal reasons the allegedly aggrieved damaged party started to spread negative information about the plaintiff, who, in her turn, responded in a similar manner. Correspondingly, in accordance with Tinker standard, vague threats are not regulated by the substantial disruption test (393 U.S. 503) , while personal relations between the parties may not attract disciplinary measures.
Similarly, in Mahafey v. Aldrich, a student created a web-site on his personal laptop, where he posted comments about his hatred to school and his desire towards other students. The court ruled that such emotional comments, posted by a student with high academic record and who has proactive social position in the extra-curricular activities of the school are not perceived by the classmates or the academic staff a threat, which can disrupt the educational process, and are usually understood as typical teenage disagreements. 07 A.2d 847 (Pa. 2002. In our case, the court records indicate that the plaintiff has one the highest academic performance rates in her class (she is among the ten top students out of 500), she is actively involved in swimming team activities, and consider joining the drama project. The actions of the alleged victim shadowed her prospects in this regard, especially when the school administrators intervened into the process. Therefore, these actions should be construed as an outburst of emotions only, which exactly fits the description of utterly routine trivial disagreement, described in the in Mahafey and in T.V. v. Smith-Green Community School. Therefore, as long as these posts were a form of private relations between the parties (even though they were somewhat hostile), the actions of the plaintiff did not collide with the interests of other students, including the allegedly aggrieved party:
In Flaherty v. Keystone Oaks School District the student created a website and started spreading disparaging comments about the school athletic team. Among other comments, the student mentioned that the team should be disbanded, otherwise ‘he is gonna ruin it’. CA-01-0586. The court found that this remark was no more than the expression of personal feeling in regards to the professional playing performance of the team, caused by the past unsuccessful performance of the team. In our case, the plaintiff was evidently exasperated by the past conduct of her former friend, especially after the petition brokered by him blocked her intentions towards the participation in drama performance. Similarly to Flaherty case, the actions of the plaintiff were the product of her strong emotional distress caused by the campaign organized by the alleged victim.
In Latour v. Riverside Beaver School District the plaintiff was suspended from attending the classes after he made a rap song about his relationships with one classmates, who was his former girlfriend. In that song, the author promised ‘to avenge his broken heart’, although it has not been mentioned what type of vengeance would he execute. The court ruled that such actions could not pose a real threat to the educational enviromnent unless the school administration proves it. In order to establish that the school administration should organize an investigation by means of searching locker rooms or conducting other relevant procedures. No. 05-1076, 2005 WL 2106562. Yet, in our case the entire investigative process was limited to the closed hearing. The plaintiff was neither properly questioned by the school administration, nor the law enforcement authorities were notified to figure out her real intentions. Therefore, in accordance with Latour failure to apply proper investigative procedures annul the possibility of suspending a student.
