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-
