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The First Amendment was not violated by the suspension of a student who sent his instant messaging buddies a violent image calling for the death of a teacher, even though the message was a joke, a federal appeals court ruled yesterday. Even if the sending of the message could be seen as an expression of opinion, the U.S. Court of Appeals for the Second Circuit said “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 disrupt the work of the school. Judges Jon Newman, John Walker and Chester Straub decided the appeal of Wisniewski v. Board of Education of the Weedsport Central School District, 06-3394-cv. Judge Newman wrote for the court. The decision will be published Tuesday. Eighth-grader Aaron Wisniewski was using his parents’ computer in April 2001 when he sent to some 15 friends an icon containing a small drawing of a pistol firing a bullet at a person’s head and blood splattering. Beneath the icon were the words “Kill Mr. VanderMolen,” a reference to Aaron’s English teacher, Philip VanderMolen. Although the exchange took place off-campus, a classmate of Aaron’s told Mr. VanderMolen about it and, after Aaron expressed regret and said it was meant as a joke, he was suspended for five days. A police investigator also concluded it was a joke and closed a pending criminal case. But at a superintendent’s hearing, attorney and hearing officer Lynda M. VanCoske found that the icon was threatening and was a violation of school rules and caused disruption to the operations of the school. The school board accepted Ms. VanCoske’s recommendation and suspended Aaron for one semester. Upon the boy’s return, Mr. VanderMolen requested and received permission to no longer teach the youth. The Wisniewskis eventually moved out of town because of the controversy. His parents filed suit in the Northern District under 42 U.S.C. �1983, claiming the icon was protected speech because it was not a “true threat.” They said the board retaliated against their son for exercising his First Amendment rights. They also charged a failure by the board and school superintendent to train school staff in threat assessment and alleged violations of New York State Education Law. Judge Norman Mordue granted summary judgment for the board and the superintendent and the Second Circuit affirmed. The circuit referred to Tinker v. Des Moines Independent Community School District, 393 U.S. 503(1969), a U.S. Supreme Court ruling that involved the suspension of three students by school authorities for wearing black arm bands protesting the Vietnam War. The Court said, “In order for the State in the person of school officials to justify prohibition of a particular expression of 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.” But officials are allowed to suppress speech, the Court said, if they reasonably conclude that it will “materially and substantially disrupt the work and discipline of the school.” Judge Newman said that for Aaron Wisniewski’s conduct, “ Tinker affords no protection against school discipline.” “The fact that Aaron’s creation and transmission of the [instant messaging] icon occurred away from school property does not necessarily insulate him from school discipline,” Judge Newman said. “We have recognized that off-campus conduct can create a foreseeable risk of substantial disruption within the school from some remote locale.” The panel agreed, he said, that it was “reasonably foreseeable that the [instant messaging] icon would come to the attention of school authorities and the teacher whom the icon depicted being shot.” And there was “no doubt,” he said, “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.” Stephen Ciotoli and Dennis O’Hara of O’Hara, O’Connell & Ciotoli of Fayetteville represented the Wisniewskis. Suzanne O. Galbato and Jonathan Fellows of Bond, Schoeneck & King in Syracuse represented the Weedsport Board of Education. “It’s significant because the court decided that school officials have significantly broader authority to sanction student speech,” Ms. Galbato said. “It clarifies that there doesn’t have to be a true threat for school officials to impose discipline.” - Mark Hamblett can be reached at [email protected].

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