06-3394-cv Wisniewski v. Bd. of E d. of W eedsport C entral School Dist.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2006
Heard: April 17, 2007 Decided: July 5, 2007)
Docket No. 06-3394-cv
- - - - - - - - - - - - - - - - - - - - - - - MARTIN WISNIEWSKI and ANNETTE WISNIEWSKI, on behalf of their son Aaron Wisniewski, Plaintiffs-Appellants,
v.
BOARD OF EDUCATION OF THE WEEDSPORT CENTRAL SCHOOL DISTRICT and RICHARD MABBETT, Superintendent of Schools, Defendants-Appellees. - - - - - - - - - - - - - - - - - - - - - - -
Before: NEWMAN, WALKER, and STRAUB, Circuit Judges.
Appeal from the June 30, 2006, amended judgment of the United
States District Court for the Northern District of New York (Norman A.
Mordue, Chief Judge), granting summary judgment on federal law claims
to school board and school superintendent sued for suspending student
for displaying via Internet instant messaging an icon depicting the
shooting of a named teacher, and declining to exercise supplemental
jurisdiction over state law claims.
Affirmed. Stephen Ciotoli, Fayetteville, N.Y. (Dennis G. O’Hara, O’Hara, O’Connell & Ciotoli, Fayetteville, N.Y., on the brief), for Plaintiffs-Appellants.
Suzanne O. Galbato, Syracuse, N.Y. (Jonathan B. Fellows, Bond, Schoeneck & King, Syracuse, N.Y., on the brief), for Defendants-Appellees.
JON O. NEWMAN, Circuit Judge.
This appeal concerns a First Amendment challenge to an eighth-
grade student’s suspension for sharing with friends via the Internet
a small drawing crudely, but clearly, suggesting that a named teacher
should be shot and killed. Plaintiffs-Appellants Martin and Annette
Wisniewski, the parents of Aaron Wisniewski, appeal from the June 30,
2006, amended judgment of the District Court for the Northern District
of New York (Norman A. Mordue, Chief Judge), dismissing their federal
civil rights claims against the Defendants-Appellees Weedsport Central
School District Board of Education and School Superintendent Richard
Mabbett and declining to exercise supplemental jurisdiction over state
law claims. We conclude that the federal claims were properly
dismissed because it was reasonably foreseeable that Wisniewski’s
communication would cause a disruption within the school environment,
and that it was appropriate not to exercise supplemental jurisdiction.
We therefore affirm.
Background
-2- Facts of the episode. This case arose out of an Internet
transmission by an eighth-grader at Weedsport Middle School, in the
Weedsport Central School District in upstate New York. In April 2001,
the pupil, Aaron Wisniewski (“Aaron”), was using AOL Instant Messaging
(“IM”) software on his parents’ home computer. Instant messaging
enables a person using a computer with Internet access to exchange
messages in real time with members of a group (usually called
“buddies” in IM lingo) who have the same IM software on their
computers. Instant messaging permits rapid exchanges of text between
any two members of a “buddy list” who happen to be on-line at the same
time. Different IM programs use different notations for indicating
which members of a user’s “buddy list” are on-line at any one time.
Text sent to and from a “buddy” remains on the computer screen during
the entire exchange of messages between any two users of the IM
program.
The AOL IM program, like many others, permits the sender of IM
messages to display on the computer screen an icon, created by the
sender, which serves as an identifier of the sender, in addition to
the sender’s name. The IM icon of the sender and that of the person
replying remain on the screen during the exchange of text messages
between the two “buddies,” and each can copy the icon of the other and
transmit it to any other “buddy” during an IM exchange.
-3- 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.1 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. In response
to questioning by the school principals, Aaron acknowledged that he
had created and sent it and expressed regret. He was then suspended
1 The Appellants, in something of an understatement, describe
Aaron’s icon as “distasteful.” See Brief for Appellants at 3 n.1.
-4- for five days, after which he was allowed back in school, pending a
superintendent’s hearing. VanderMolen asked and was allowed to stop
teaching Aaron’s class.
At the same time, a police investigator who interviewed Aaron
concluded that the icon was meant as a joke, that Aaron fully
understood the severity of what he had done, and that Aaron posed no
real threat to VanderMolen or to any other school official. A pending
criminal case was then closed. Aaron was also evaluated by a
psychologist, who also found that Aaron had no violent intent, posed
no actual threat, and made the icon as a joke.
The superintendent’s hearing. In May 2001 a superintendent’s
hearing, regarding a proposed long-term suspension of Aaron, was held
before a designated hearing officer, attorney Lynda M. VanCoske.
Aaron was charged under New York Education Law §3214(3) with
endangering the health and welfare of other students and staff at the
school.
In her decision of June 2001, VanCoske found that the icon was
threatening and should not have been understood as a joke. Although
the threatening act took place outside of school, she concluded that
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. The
-5- hearing officer acknowledged the opinions of the police investigator
and the psychologist that Aaron did not intend to harm VanderMolen and
that he did not pose any real threat, but stated that “intent [is]
irrelevant.” Citing the evidentiary standard followed in New York
suspension hearings, the decision concluded:
Substantial and competent evidence exists that Aaron engaged in the act of sending a threatening message to his buddies, the subject of which was a teacher. He admitted it. Competent and substantial evidence exists that this message disrupted the educational environment. . . .
As a result of the foregoing, I conclude that Aaron did commit the act of threatening a teacher, in violation of page 11 of the student handbook, creating an environment threatening the health, safety and welfare of others, and his actions created a disruption in the school environment.
The hearing officer recommended suspension of Aaron for one semester.
The recommendation was presented to the district’s Board of Education
(“Board”),2 which approved the one semester suspension in late
September 2001. Aaron was suspended for the first semester of the
2001-2002 school year. During the period of suspension the school
district afforded Aaron alternative education. He returned to school
for the spring term. At oral argument, we were advised that because
2 Although Superintendent Mabbett was authorized under the statute
to decide Aaron’s discipline, the issue was brought before the Board
due to his prior involvement in the case.
-6- of school and community hostility, the family moved from Weedsport.
The District Court litigation. In November 2002 Aaron’s parents
filed on his behalf the current suit against the Board and
Superintendent Mabbett, seeking damages under 42 U.S.C. § 1983. The
complaint included five counts: the first count claimed that Aaron’s
icon was not a “true threat,” but was protected speech under the First
Amendment. It therefore alleged that in suspending Aaron the Board
acted in a retaliatory manner in violation of his First Amendment
rights. The second and third counts alleged that the Board and
Mabbett, respectively, had failed to train school staff in threat
assessment, thereby leading to the violation of Aaron’s First
Amendment rights. The fourth and fifth counts claimed the Board had
violated New York State Education Law.
In June 2006, Chief Judge Mordue granted the Defendants’ motion
for summary judgment. The District Court first found that the hearing
officer had made a factual determination, entitled to preclusive
effect, that the icon was a threat and, as such, not protected by the
First Amendment. Alternatively, the Court made its own determination
that the icon was reasonably to be understood as a “true threat”
lacking First Amendment protection. The Court also found that, in any
event, Mabbett would be entitled to qualified immunity. Having
dismissed all three federal law claims, the District Court declined to
-7- exercise supplemental jurisdiction over the remaining two state law
claims, and dismissed them without prejudice.
Discussion
We see no need to resolve the dispute between the parties as to
whether the Plaintiffs’ claim was barred by collateral estoppel
arising from the determinations in the Superintendent’s hearing.
Instead, we turn directly to the merits of the Plaintiffs’ claim that
Aaron’s icon was protected speech under the First Amendment.
In assessing that claim, we do not pause to resolve the parties’
dispute as to whether transmission of the icon constituted a “true
‘threat’” within the meaning of the Supreme Court’s decision in Watts
v. United States, 394 U.S. 705, 708 (1969). Watts concerned a
criminal prosecution for violating 18 U.S.C. § 871(a), which provides
punishment for “knowingly and willfully . . . mak[ing] [a] threat
against the President.” The defendant had said at a public rally on
the grounds of the Washington Monument, “If they ever make me carry a
rifle the first man I want to get in my sights is L.B.J.” Id. at 706.
The Court noted that “a statute such as this one, which makes criminal
a form of pure speech, must be interpreted with the commands of the
First Amendment clearly in mind,” and added, “What is a threat must be
distinguished from what is constitutionally protected speech.” Id. at
707 (emphasis added). Ruling that “the statute initially requires the
-8- Government to prove a true ‘threat,’” the Court concluded, “We do not
believe that the kind of political hyperbole indulged in by [the
defendant] fits within that statutory term.” Id. at 708.
Although some courts have assessed a student’s statements
concerning the killing of a school official or a fellow student
against the “true ’threat’” standard of Watts, see, e.g., Doe v.
Pulaski County Special School District, 306 F.3d 616, 621-27, 627-32
(8th Cir. 2002) (in banc); Lovell v. Poway Unified School District, 90
F.3d 367, 371-73 (9th Cir. 1996), we think that school officials have
significantly broader authority to sanction student speech than the
Watts standard allows. With respect to school officials’ authority to
discipline a student’s expression reasonably understood as urging
violent conduct, we think the appropriate First Amendment standard is
the one set forth by the Supreme Court in Tinker v. Des Moines
Independent Community School District, 393 U.S. 503 (1969).
Tinker, it will be recalled, concerned students (two at a high
school and one at a junior high school) suspended by school
authorities for coming to school wearing black armbands signifying
their opposition to the Vietnam War. See id. at 504. Noting that the
students’ conduct was “a silent, passive expression of opinion,” id.
at 508, the Court stated, “In order for the State in the person of
school officials to justify prohibition of a particular expression of
-9- opinion, it must be able to show that its action was caused by
something more than a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint.” Id. at
509. The Court used several formulations to describe student conduct
that would merit school discipline: conduct that (1) “would
substantially interfere with the work of the school,” id., or (2)
cause “material and substantial interference with schoolwork or
discipline,” id. at 511, or (3) “would materially and substantially
disrupt the work and discipline of the school,” id. at 513, or (4)
“might reasonably have led school authorities to forecast substantial
disruption of or material interference with school activities,” id. at
514. Seeing no evidence of any of such risks, the Court ruled that
the students’ wearing of the armbands was speech protected against
school discipline by the First Amendment. See id. at 511-14. In its
most recent consideration of a First Amendment challenge to school
discipline in response to a student’s allegedly protected speech, the
Supreme Court viewed the third formulation as Tinker’s holding:
“Tinker held that student expression may not be suppressed unless
school officials reasonably conclude that it will ‘materially and
substantially disrupt the work and discipline of the school.’” Morse
v. Frederick, No. 06-278, 2007 WL 1804317, at *7 (Sup. Ct. June 25,
2007) (quoting Tinker, 393 U.S. at 513).
-10- 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.” Id. (internal
quotation marks omitted). For such conduct, Tinker affords no
protection against school discipline. See LaVine v. Blaine School
District, 257 F.3d 981, 989-92 (9th Cir. 2001) (upholding, under
Tinker, suspension of high school student based in part on poem
describing shooting of students); Boucher v. School Board, 134 F.3d
821, 827-28 (7th Cir. 1998) (upholding, under Tinker, one-year
expulsion of high school student for writing article in underground
newspaper outlining techniques for hacking into school computers);
J.S., a Minor v. Bethlehem Area School District, 757 A.2d 412, 422
(Pa. Cmwlth. 2000) (upholding, under Tinker, permanent expulsion of
student for placing on web-site picture of severed head of teacher and
soliciting funds for her execution).
The fact that Aaron’s creation and transmission of the IM icon
occurred away from school property does not necessarily insulate him
-11- from school discipline.3 We have recognized that off-campus conduct
can create a foreseeable risk of substantial disruption within a
school, see Thomas v. Board of Education, 607 F.2d 1043, 1052 n.17 (2d
Cir. 1979) (“We can, of course, envision a case in which a group of
students incites substantial disruption within the school from some
remote locale.”), as have other courts, see Pulaski, 306 F.3d at 625-
27 (letter, written and kept at home, that threatened killing of
fellow student); Sullivan v. Houston Independent School District, 475
F.2d 1071, 1075-77 (5th Cir. 1973) (underground newspaper distributed
off-campus but near school grounds); J.S., 757 A.2d at 418-22
(material created on home computer).
In this case, the panel is divided as to whether it must be shown
that it was reasonably foreseeable that Aaron’s IM icon would reach
the school property or whether the undisputed fact that it did reach
the school pretermits any inquiry as to this aspect of reasonable
3 Since the Supreme Court in Morse rejected the claim that the
student’s location, standing across the street from the school at a
school approved event with a banner visible to most students, was not
“at school,” Morse, 2007 WL 1804317, at *5, it had no occasion to
consider the circumstances under which school authorities may
discipline students for off-campus activities.
-12- foreseeability. We are in agreement, however, that, on the undisputed
facts, 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.4 The potentially threatening content of the icon
4 Judge Walker, who otherwise fully concurs in this opinion and in
the judgment, would hold that a school may discipline a student for
off-campus expression that is likely to cause a disruption on campus
only if it was foreseeable to a reasonable adult, cognizant of the
perspective of a student, that the expression might reach campus. Cf.
Skoros v. City of New York, 437 F.3d 1, 23 (2d Cir. 2006) (discussing
perspective of reasonable adult who assesses religious display aware
that it will be seen primarily by children). He believes that to hold
otherwise would run afoul of Thomas, 607 F.2d at 1045 (holding that
“the arm of [school] authority does not [generally] reach beyond the
schoolhouse gate”), and would raise substantial First Amendment
concerns, as it might permit a school to punish a student for the
content of speech the student could never have anticipated reaching
the school, such as a draft letter concealed in his night-stand,
stolen by another student, and delivered to school authorities,
cf. Porter v. Ascension Parish School Board, 393 F.3d 608, 615 n.22
(5th Cir. 2004) (“[T]he fact that Adam’s drawing was composed
-13- and the extensive distribution of it, which encompassed 15 recipients,
including some of Aaron’s classmates, during a three-week circulation
period, made this risk at least foreseeable to a reasonable person, if
not inevitable. And there can be no doubt that the icon, once made
known to the teacher and other school officials, would foreseeably
create a risk of substantial disruption within the school environment.
Whether these aspects of reasonable foreseeability are considered
issues of law or issues of fact as to which, on this record, no
reasonable jury could disagree, foreseeability of both communication
to school authorities, including the teacher, and the risk of
substantial disruption is not only reasonable, but clear. These
consequences permit school discipline, whether or not Aaron intended
his IM icon to be communicated to school authorities or, if
communicated, to cause a substantial disruption. As in Morse, the
student in the pending case was not disciplined for conduct that was
merely “offensive,” Morse, 2007 WL 1804317, at *10, or merely in
conflict with some view of the school’s “educational mission,” id. at
*18 (Alito, J., with whom Kennedy, J., joins, concurring).
off-campus and remained off-campus for two years until it was
unintentionally taken to school by his younger brother takes the
present case outside the scope of [Tinker].”).
-14- Although the Appellants contend that the First Amendment barred
the imposition of any discipline, they make no distinct challenge to
the extent of the discipline. Thus, we need not determine whether
such a challenge would have to be grounded on the First Amendment
itself or the substantive component of the Due Process Clause of the
Fourteenth Amendment. Cf. Graham v. Connor, 490 U.S. 386, 395 (1989)
(“Because the Fourth Amendment provides an explicit textual source of
constitutional protection against this sort of physically intrusive
governmental conduct, that Amendment, not the more generalized notion
of ‘substantive due process,’ must be the guide for analyzing these
claims.”). And we are mindful that “[i]t is not the role of the
federal courts to set aside decisions of school administrators which
the court may view as lacking a basis in wisdom or compassion.” Wood
v. Strickland, 420 U.S. 308, 326 (1975). However, in the absence of
a properly presented challenge, we do not decide whether the length of
the one semester suspension exceeded whatever constitutional
limitation might exist. We rule only that the First Amendment claims
against the School Board and the Superintendent were properly
dismissed, and that the state law claims were properly left for
whatever state court adjudication might be available. We need not
rule on the Superintendent’s defense of qualified immunity.
Conclusion
-15- The judgment of the District Court is affirmed.
-16-