Circuit clamps down on threatening student speech

When Aaron Wisniewski sent his eighth grade friends an instant message depicting one of his teachers as a gunshot victim, he had no idea that it would result in a court decision that clarifies the standards governing student discpline in First Amendment cases. But it did. On July 5, 2007, the Court of Appeals cited a recent Supreme Court ruling on student speech in upholding a five-day suspension for an off-campus computer message that threatened a teacher by name.

Here are the facts:

Aaron's IM icon was a small drawing of a pistol firing a bullet at a person's head, above which were dots representing splattered blood. Beneath the drawing appeared the words "Kill Mr. VanderMolen." Philip VanderMolen was Aaron's English teacher at the time. Aaron created the icon 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. Aaron sent IM messages, displaying the icon to some 15 members of his IM "buddy list." The icon was not sent to VanderMolen or any other school official. The icon was available for viewing by Aaron's "buddies" for three weeks, at least some of
whom were Aaron's classmates at Weedsport Middle School. During that period it came to the attention of another classmate, who informed VanderMolen of Aaron's icon and later supplied him with a copy of the icon. VanderMolen, distressed by this information, forwarded it to the high school and middle school principals, who brought the matter to the attention of the local police, the Superintendent Mabbett, and Aaron's parents.

Aaron was suspended for five days and sued the school district under the First Amendment, claiming that the instant message was harmless and took place off-campus. The Court of Appeals disagreed, noting as follows:

1. While hyperbole does not normally qualify as a "threat" under Federal law (under the Watts standard), cases involving public school students should be resolved under a broader standard. This distinguishes the Second Circuit from other courts which only allow school districts to discipline students for genuine threats of harm against school officials.

2. The better way to resolve this case is under the Tinker standard, named after a seminal Supreme Court case from 1969 allowing school officials to punish students if their speech (1) "would substantially interfere with the work of the school," or (2) cause "material and substantial interference with schoolwork or discipline," or (3) "would materially and substantially disrupt the work and discipline of the school" or (4) "might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities."

3. Unfortunately for Aaron, in Morse v. Frederick, the Supreme Court a few weeks ago interpreted the Tinker case to mean that school officials can discipline students for offensive speech if they "reasonably conclude that it will 'materially and substantially disrupt the work and discipline of the school.'"

4. Under this test, it was reasonable for school officials to believe that the offensive instant message would disrupt the school, even if it started off campus. "Even if Aaron's transmission of an icon depicting and calling for the killing of his teacher could be viewed as an expression of opinion within the meaning of Tinker, we conclude that it crosses the boundary of protected speech and constitutes student conduct that poses a reasonably foreseeable risk that the icon would come to the attention of school authorities and that it would 'materially and substantially disrupt the work and discipline of the school.' For such conduct, Tinker affords no protection against school discipline."