Student's IM threat is not protected speech, Second Circuit says.

An eighth-grade student who joked--through a drawing posted online--about killing a teacher could be suspended for his behavior, the Second Circuit held recently, affirming a lower court's decision. (Wisniewski v. Bd. of Educ. of Weedsport C. Sch. Dist., 2007 WL 1932264 (2d Cir. July 5, 2007).)

Communicating with friends by instant messaging (IM) software on his parents' computer, Aaron Wisniewski used a small drawing as his IM icon (displayed along with his user name when he posted messages). The drawing depicted a gun firing at a person's head, next to the words "Kill Mr. Vander-Molen," Aaron's English teacher. Other students on Aaron's IM "buddy list" saw the icon, and another student who found out about it told the teacher about it.

A police investigator and a psychologist determined that Aaron meant for the icon to be a joke and that he did not pose a real threat. But a school superintendent's hearing officer found that, regardless of intent, Aaron's actions constituted a threat to a teacher, breaking school rules and disrupting the school environment. He was suspended for a semester.

Aaron's parents sued the school board and superintendent, arguing that the drawing was protected speech under the First Amendment. Stephen Ciotoli of Fayetteville, New York, who represents the Wisniewskis, said that the speech at issue "was basically a private conversation between two kids."

However, Judge Jon Newman wrote for the three-judge panel: "The fact that Aaron's creation and transmission of the IM icon occurred away from school property does not necessarily insulate him from school discipline." The court noted that Aaron created the icon a couple of weeks after his class was told that the school would not tolerate threats and would treat them as acts of violence.

The court heard the case the day after the Virginia Tech shootings in April. Ciotoli said Aaron was swept up in the "tenor of the times--the post-9/11 attitude of taking every threat seriously," but he shouldn't have been punished for making a threat when no one thought it was a true threat.

The court acknowledged that other circuits have assessed similar student speech under the "true threat" standard the Supreme Court articulated in Watts v. United States. (394 U.S. 705 (1969).) However, Newman wrote, "we think that school officials have significantly broader authority to sanction student speech than the Watts standard allows."

Instead, the Second Circuit applied the standard the Supreme Court used in Tinker v. Des Moines Independent Community School District. (393 U.S. 503 (1969).) In that case, the Court held that students wearing black armbands to school to oppose the Vietnam War were protected against school discipline.

In June, the Court applied Tinker in a case where a student displayed a banner reading "Bong hits 4 Jesus" at a school-sponsored event, holding that the school did not violate his First Amendment rights by confiscating the banner and disciplining him.

The Court distinguished between the speech in Tinker--political speech that the school wanted to suppress to avoid controversy but that did not disrupt school--and the banner encouraging drug use. "The particular concern to prevent student drug abuse at issue here ... extends well beyond an abstract desire to avoid controversy," the Court noted. (Morse v. Frederick, 127 S. Ct. 2618 (2007).)

In Wisniewski, the Second Circuit held that Tinker did not protect Aaron's speech, either. The icon "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,'" Newman wrote (quoting Tinker).

It's significant that the court used a "reasonably foreseeable" test rather than a "true threat" test, said Syracuse lawyer Suzanne Galbato, who represents the school. Now, "to impose discipline, school officials have broader authority," she said.

Ciotoli said he planned to seek a rehearing in the Second Circuit.

Courts are likely to grant schools more authority to respond to perceived threats than they have in the past, said Douglas Fierberg, a Washington, D.C., lawyer and chair of an AAJ litigation group focusing on school violence. "We're heading toward zero tolerance," he said.

Drawing a violent picture of a teacher "is analogous to standing in line at the airport and saying, 'I've got a bomb in my briefcase--ha, ha!'" Fierberg said. "It's not a place for humor."

Public schools experiencing at least one violent incident increased from 71 percent in the 1999-2000 school year to 81 percent in the 2003-2004 school year, according to a 2006 report of the National Center for Education Statistics. In 2003-2004, 8 percent of secondary school teachers and 6 percent of elementary school teachers reported that students had threatened them.

Fierberg noted that schools have felt powerless to address bullying and threats, but they have been erring on the side of safety. Historically, for example, if a boy was bullied for being gay, "we would say he had to toughen up," Fierberg explained. "Now, courts are pushing away and saying no."

Earlier this year, the New Jersey Supreme Court held that schools have a duty to protect students from sexual-orientation harassment. (See Valerie Jablow, In Student Harassment Case, N.J. Court Holds Schools to High Standard, TRIAL 86 (May 2007).) Fierberg noted that the language courts are using about schools' obligation in such cases "is signaling that lines are being drawn."

The Wisniewski decision enables schools "to take the action they think is most appropriate to ensure the safety of the community," Galbato said. It "recognizes the difficult job districts and schools are faced with," including making decisions quickly about a potential threat, she said.

Fierberg agreed. "Why should a school official have to be in the situation of parsing through whether it's a joke?" *