Canada Association of Tourism Employees

Freedom Of Expression In eLearning

An exploration and analysis

To post or not to post is the “million dollar” question for teachers, faculty, students and educators who have successfully migrated to eLearning and remote learning as a result of the COVID-19 pandemic. The first amendment to the constitution protects citizens’ rights to “freedom of religion, expression, assembly and petition (US Constitution)”. It is noteworthy that the concerns of our nation’s earliest years still apply today in a post-COVID-19 pandemic.

eLearning and remote learning platforms, which are hosting a wide variety of teaching practices following the COVID-19 pandemic, are a new frontier for possible jurisdiction. In recent years, our nation has also witnessed violence and division at protests, rallies, and demonstrations on many university campuses. We noticed a decrease in politeness, tolerance and acceptance of different points of view. The transition to eLearning and remote learning has not alleviated this growing tension and the need for all people to be free to express and express their differences and viewpoints.

As a result, our educational institutions face a worrying dilemma, which is to find the balance between fulfilling the mission of higher education and protecting the initial adaptation rights of students using an online or eLearning platform. This problem is not new. Cases of similar challenges can be found in our nation’s judicial records in various states. However, it is the composite impact that is new given the current high usage of e-learning and distance learning courses, which presents a major dilemma and potential legal implications for educators.

Shelton V. Tucker

Two of the most important roles for schools and institutions that have moved into remote and online courses are promoting and supporting the first change and protecting the campus community. As in the case of Shelton v. Tucker of the 1960s stated, “The vigilant protection of constitutional freedoms is nowhere more important than in the American school community (Shelton v. Tucker, 364 US 479, 487 1960).” The ruling in this case went on to college classrooms and addressing campus as a “marketplace for ideas,” referring to our nation’s “commitment to upholding academic freedom (408 US at 180–81, Shelton v. Tucker, 1960).”

Tinker V. Des Moines Independent School District

A “cornerstone” in connection with the protection of first adjustment rights is Tinker v. Des Moines Independent Community School District (393, US 503, 1969). In this case, the court ruled that uninterrupted exercise of freedom of speech should not be punished with a break in school. The majority decision of Judge Abe Fortas in the Tinker case: The pupils do not lose their constitutional rights “at the gate of the school building”. However, the behavior may not interfere with coursework or cause significant disruption. The second part was written as a qualification and is called the “material and essential disorder test” (Tinker v Des Moines Independent Community School District, 1969). Although this case represented a high school, future cases traced some principles from the case back to post-secondary education.

The decision in this case also states: “In order to justify the prohibition of a certain expression of opinion, you must be able to demonstrate that your act was not caused by the mere desire to avoid the inconvenience and inconvenience, always with an unpopular point of view go hand in hand (Tinker v Des Moines Independent Community School District).

The major dilemma for expression of opinion in courses offered remotely or on an eLearning platform is: How can we apply the decision of the independent school district Tinker vs. Des Moines to contributions and comments or opinions made by students on an online learning platform to be shared? Should the application standard be the same as for non-tech platforms or should it be a lower standard that differs from case to case? The courts are still grappling with this and trying to apply the rule on a case-by-case basis.

Healy V. James

A notable case of applying the principles to university-level events was Healy v. James (408 US 169, 1972). The courts claimed that “state colleges and universities are not enclaves immune to the introduction of the First Amendment”. Freedom of expression for students is primarily protected by the freedom of speech and press provisions in the first amendment to the US Constitution, which applies only to “public” institutions (see Coleman v Gettysburg College, 335 F. Supp. 2d 586, MD Pa. 2004). In some situations, the freedom of expression of the students can also be protected by state constitutional provisions (see section and the Schmid case in section 10.1.2) or by state laws (see e.g. Cal.Educ.Code §§ 66301) & 76120 (public institutions) and § 94367 (private institutions), Healy v. James, 1972).

Although the aforementioned cases provide clear protections for freedom of expression and expression, the first amendment does not specifically mention or address terms used in online classrooms, eLearning platforms, or remote class settings. While recognizing that expressing opposing views could lead to disagreement, the Court believed that the Constitution must take that risk and allow freedom of expression, since our openness is “the basis of our national strength”.

Privacy Concerns and Rights

Another issue is privacy concerns and the rights of students and teachers in classrooms. In Burnside v Byars, the courts argued, “It is not okay to suppress and ignore expressions of emotions that are beyond your control (Burnside v Byars, 363 F. 2d 744 – Court of Appeal, 5th Circuit 1966 ). In this example, Ruthie Robertson’s opinion contradicted the Brigham Young University-Idaho ideal of not accepting homosexuality, but was merely an expression of feelings with which they do not have to contend (Burnside v. Byars, 363 F. 2d 744 – Court of Appeal, 5th circuit 1966). “The expression of their beliefs was not obscene, the speech was not part of or affecting their classes, it did not interfere with the universities’ ability to maintain their core mission of education, and there was a reasonable expectation of privacy.

With the provision of eLearning courses for schools and universities, there is a reasonable expectation of the data protection of information in an online classroom or forum. After the COVID-19 pandemic, the courts did not issue a single opinion on this issue. However, we can assume that any potential litigation or legal and privacy issues in an eLearning environment will be addressed in the near future. In the Rubino v City of New York case, the courts found that “their expectation is not only that only their friends, who are all adults, would see the postings [*8] obvious but reasonable (Rubino v City of New York Matter, 2012 NY Slip Op 50189 – NY: Supreme Court 2012). “


Educational institutions need to be aware of their basic priorities in order to provide students with access to new ideas, opinions, cultures and experiences. In addition, institutions are required to teach students how to interact with people who have different ideas, opinions, cultures and experiences in an online teaching platform. This responsibility is often referred to as the “craft test”.

In the case of Tinker v. Des Moines Independent Community School District (393, US 503, 1969), the courts found that “schools have a responsibility to teach students” habits and behaviors of courtesy as values ​​”(Tinker v. Des Moines) Independent Community School District, 1969). “Educational institutions need to use these principles of the tinker case to prepare students for the realities of expressions and speeches that await them in an online classroom. The best, safest place for students to develop in their own way, opinions and behaviors are within the safe boundaries of their college or university, and administrators must discharge their responsibilities to their students beyond their personal beliefs.

Educational institutions need to make the best decisions for the communities they lead and they need to lead by example.

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