2nd Circuit: School can punish student for off-campus Web activity

By David L. Hudson Jr.
First Amendment scholar

A federal appeals court recently ruled that New York middle school officials could suspend an eighth-grader for an online message about killing his English teacher.

In April 2001, Aaron Wisniewski — then in 8th grade at Weedsport Central School District — instant messaged several of his friends on his parents’ home computer. He sent an IM icon depicting a pistol firing a bullet at a person’s head with the message, “Kill Mr. VanderMolen.” Philip VanderMolen was Aaron’s English teacher.

School officials initially imposed a five-day suspension but, in late September 2001, increased the length of the punishment to one semester. Aaron had to receive alternative education, and then his family moved from Weedsport.

In November 2002, Aaron and his parents sued the school district in federal court, alleging a violation of his First Amendment rights. The case stayed in the district court for several years until the court ruled in June 2006 that Aaron’s online expression amounted to a true threat — a type of expression that receives no First Amendment protection.

The Wisniewskis appealed to the 2nd U.S. Circuit Court of Appeals, which affirmed in Wisniewski v. Board of Education. The three-judge panel on July 5 unanimously ruled in favor of the school district, though it did not rely on true-threat cases. Instead, the panel reasoned that the school officials could punish Aaron under the U.S. Supreme Court’s landmark 1969 student-speech decision Tinker v. Des Moines Independent Community School District.

In Tinker, the Court ruled that school officials could censor student speech only if they could reasonably forecast that the speech would cause a substantial disruption of school activities. The 2nd Circuit panel wrote that Tinker provided “the appropriate First Amendment standard.”

“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,” the panel wrote.

The appeals court was not troubled by the fact that Aaron created his expression at home. “We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption within a school,” the panel wrote, emphasizing “the extensive distribution” of Aaron’s message to at least 15 other people, including several classmates.

Stephen Ciotoli, the attorney for the Wisniewskis in the case, said that his clients would seek en banc, or full-panel, review in the 2nd Circuit. He also said that he would probably file a petition for writ of certiorari to the U.S. Supreme Court if the en banc petition fails.

“Nobody thought Aaron’s message was a true threat,” Ciotoli said. “There were no red flags with Aaron — he was pulled out of a gifted class before his suspension. The only reason Aaron’s expression allegedly led to a disruption was that school officials improperly treated his expression to be a true threat.

“The First Amendment contains arguably the most important 45 words of the entire Constitution,” he added. “Unfortunately, in today’s climate, students seem to be losing the protections of Tinker.

He warns that the case is important for many reasons, including that it shows just how far the court will allow the jurisdiction of the school to reach. “According to the reasoning of this opinion, a school can punish a student for a private conversation,” he says. “That is how far-reaching this opinion is. The school simply overreacted in Aaron’s case,” adding that his client is now a 20-year-old college student in Albany.

Ciotoli was not surprised at the outcome before the panel, noting that oral arguments in the case took place only one day after the horrific mass shooting at Virginia Tech University in April.

He hopes that the decision will be reviewed in order to ensure that students don’t lose all the protections in the First Amendment and the Bill of Rights.

School district officials did not return calls for comment in time for this story.