Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., No. 06-3394-cv (2d Cir. July 5, 2007)
The U.S. Court of Appeals for the Second Circuit (CT, NY, VT) has upheld the suspension of a student who created an instant messaging (IM) icon depicting his teacher being shot. Aaron Wisniewski, an eighth-grader at Weedsport Middle School, created the icon using AOL Instant Messaging software at home. IM enables a person to converse in real time with others also using the software and to create an icon that is transmitted along with the message. The icon was a small drawing of a pistol firing a bullet at a person’s head, with dots representing splattered blood and the words "Kill Mr. VanderMolen," referring to Aaron’s English teacher. He created this image a couple of weeks after his class was instructed that threats would not be tolerated by the school and would be treated as acts of violence. He sent messages to some 15 people, none of whom was a school official but some of whom were classmates. One classmate showed the icon to Mr. VanderMolen, who found it distressing and brought it to the attention of school officials. They contacted local police, the superintendent, and Aaron’s parents.
Aaron expressed regret and was initially suspended for five days and allowed to return to school pending a hearing on further action. Mr. VanderMolen was permitted to stop teaching Aaron’s English class. A police investigator found that the icon was meant as a joke and that Aaron was not dangerous. A psychologist evaluated Aaron and agreed. But the hearing officer concluded that "the icon was threatening and should not have been understood as a joke." Even though the act took place outside of school, she found, "it was in violation of school rules and disrupted school operations by requiring special attention from school officials, replacement of the threatened teacher, and interviewing pupils during class time." In response to the police investigator’s and psychologist’s findings, she stated that "intent [is] irrelevant" and recommended Aaron be suspended for one semester, which the board of education approved. Aaron’s parents sued, arguing that the suspension violated Aaron’s free speech rights because the icon was not a "true threat" and thus was protected under the First Amendment. The U.S. district court dismissed the suit, finding that the hearing officer had made a factual determination that the icon was a true threat, a conclusion the court shared.
The Second Circuit affirmed the decision, but it did not follow the district court’s reasoning. The Second Circuit declined to decide whether the icon was a "true threat," stating it did not believe that was the proper test to evaluate this case. Instead, the court applied the standard articulated in Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 507 (1969), which allows for a school district to discipline students if the speech "would materially and substantially disrupt the work and discipline of the school." Based on the "potentially threatening content of the icon and the extensive distribution of it" the court concluded that "it was reasonably foreseeable that the IM icon would come to the attention of school authorities and the teacher whom the icon depicted being shot." The court quickly disposed of the fact that the conduct took place off-campus, stating, "We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption with a school." The court concluded by stating that because it was not presented with the question of whether the punishment was excessive, it would not address that issue.
Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., No. 06-3394-cv (2d Cir. July 5, 2007)
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