Second Circuit Considers School Threat Case Post-Morse
Thursday, July 5th by Robert LoblawWisniewski v. Board of Education of the Weedsport Central School District, 06-3394 (2nd Cir., July 5, 2007)
This Second Circuit decision provides an interesting follow-up question to the Supreme Court’s recent decision in the Bong Hits 4 Jesus case: when can a student be disciplined for off campus speech? In Morse, the Supreme Court concluded that the student who unfurled a “pro-drug” banner across the street from the school, at a school-sanctioned event, was “at school” for the purposes of its analysis.
In contrast, this case involves an eighth grader whose expression occurred entirely off campus. For several weeks, he used an AOL instant messaging icon that showed an unpopular English teacher being shot in the head. The caption read: “Kill Mr. VanderMolen.” After a classmate heard about the icon and brought it to the school’s attention, the student was immediately suspended for a week and then, after a hearing, suspended for a semester. He never returned: apparently, the student and his family were so disgraced by the episode, they had to move to another school district.
The family challenged the suspension as a violation of the student’s First Amendment rights, but the district court rejected the challenge and the Second Circuit affirms. The panelists agree on the result, but not the proper test. Judges Newman and Straub conclude that the school may discipline the student because the threatening icon had the result of causing a disruption on campus. Concurring, Judge Walker would hold that the result of the offending expression does not matter; what matters is whether “it would be foreseeable to a reasonable adult, cognizant of the perspective of a student, that the expression might reach campus.” Here, however, the distinction is not significant, since it is reasonable foreseeable that a picture of a teacher being shot, when shared on the internet with several classmates, would reach campus and cause a disruption.
July 5th, 2007 at 10:51 am
This decision cited to Morse three times by my count and was obviously held up pending the SCOTUS decision.
However, Morse was supposedly limited exclusively to student speech advocating illegal drug use. The Roberts and Alito opinions are unambiguous on this.
So citing to it in this decision was wholly inappropriate. Go figure.
July 5th, 2007 at 11:41 am
Morse v. Frederick Already Being Abused…
That didn’t take long: As in Morse, the student in the pending case was not disciplined for conduct that was merely “offensive,” or merely in conflict with some view of the school’s “educational mission.”That is one of th……
July 9th, 2007 at 9:04 pm
[…] stunned to see the effect so quickly but I’m not surprised, only horrified, by the ruling in Wisniewski v. Board of Education of the Weedsport Central School District. Follow the link for a very nice description from Decision of the Day but I’ll give a quick […]
July 31st, 2007 at 1:47 pm
[…] again, the Bong Hits 4 Jesus case of Morse v. Frederick is cited for the general proposition that courts […]