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Published in Print: April 9, 2008, as Justices Decline Appeal Over Student's Online Threat
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Justices Decline Appeal Over Student's Online Threat

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The U.S. Supreme Court has declined to review the case of an 8th grader who was suspended for an off-campus Internet message with a drawing that suggested a teacher should be shot.

The justices declined without comment on March 31 to hear the appeal of the family in Wisniewski v. Board of Education of the Weedsport Central School District (Case No. 07-987).

According to court papers, Aaron Wisniewski was a student at Weedsport Middle School in New York state in 2001 when he sent an instant message on America Online to a friend with an icon featuring a pistol firing bullets at a person’s head, with the words “Kill Mr. VanderMolen.” Philip VanderMolen was the boy’s English teacher. Aaron was suspended for one semester over the message.

The student and his parents challenged the discipline in court, arguing that the boy’s instant-messaging icon was protected by the First Amendment because it was not a true threat.

Both a federal district court and the U.S. Court of Appeals for the 2nd Circuit, in New York City, ruled for the school district.

The appeals court panel said in its unanimous opinion that the student’s transmission of the icon “crosses the boundary of protected speech and constitutes student conduct that poses a reasonably forseeable risk that … it would materially and substantially disrupt the work and discipline of the school.”

The appeals court said the fact that the student had created and transmitted the icon outside of school did not insulate him from discipline. The fact that Aaron sent the icon to 15 recipients, including some of his classmates, made it foreseeable, if not inevitable, that it would become a disruptive influence at his school, the court said.

Morse v. Frederick

The appeals court’s July 5 ruling came just days after the U.S. Supreme Court issued a major decision on student-speech rights last June. In Morse v. Frederick, the high court held that a “Bong Hits 4 Jesus” banner displayed at a school-related event by an Alaska high school student was not protected under the First Amendment. ("Ruling in ‘Bong Hits’ Case Seen as Leaving Protection for Students’ Free Speech," July 18, 2007.)

The 2nd Circuit court, in its Wisniewski decision, took brief note of the Morse ruling and suggested that it did not offer the Weedsport student much, if any, support.

The Morse decision was the topic of a session late last month at the National School Boards Association’s Council of School Attorneys meeting in Orlando, Fla.

Despite what many observers viewed as a major legal victory for schools and administrators in exercising disciplinary authority over students, a presenter at the school lawyers’ group said Morse was “not a grand slam.”

“I don’t even think we hit a double,” Michael E. Smith, a Fresno, Calif., lawyer who represents school districts, said at the March 28 session. While there is much for schools to like in the ruling, he said, it was not as clear is it could have been in settling on a more precise legal standard for analyzing student free-speech claims.

Vol. 27, Issue 32, Page 19

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