Court Rules Against Student Suspended Over Threatening Instant Messaging Avatar
In the wake of the “Bong Hits 4 Jesus” ruling at the U.S. Supreme Court late last month, it was probably just a matter of time before we’d see another student free space case using it as precedent. I might have guessed some time in 2008 or 2009. As it turns out, it took less than a week, as a federal York appeals court used the Supreme Court’s newly minted decision to rule against a student who was suspended for sending potentially threatening instant messages off school grounds.
In April 2001, Aaron Wisniewski was an eight grader at Weedsport Middle School in the Weedsport Central School District in upstate New York. Like so many middle school students, Aaron had an instant messaging account he would use from his home computer to interact with friends. The instant messaging software allowed Aaron to create a graphical icon, or avatar, that would be associated with his particular account and seen by anyone who received his instant messages. As his avatar, Aaron decided to use an image of a gun firing a bullet into someone’s head, including the inevitable blood splatter. Just below the image, he added some text: Kill Mr. VanderMolen.
“Mr. VanderMolen” was Philip VanderMolen, Aaron’s English teacher.
For three weeks, Aaron used the gruesome icon as his avatar, during which time he corresponded with 15 friends on his IM buddy list. At no time did he send instant messages during school hours or to school staff. Eventually, though, a classmate saw Aaron’s IM avatar and passed along a copy of it to VanderMolen. Distressed, the teacher informed the principal, who in turn brought it to the attention of the police and the district superintendent. Official confronted Aaron, and he confessed that he had indeed used the avatar. He was suspended for five days, and was transferred out of VanderMolen’s class. Police investigators also concluded that the avatar was intended as a sick joke rather than a real threat, so they closed the book on the case.
That might have been the end of the story if there hadn’t been a further investigation by the district superintendent’s office. That investigation concluded that Aaron’s actions disrupted the school by taking up the time of administrators and students (who were interviewed by officials), and forced the reassignment of Aaron to another teacher. Even though Aaron wasn’t seriously threatening VanderMolen, the investigation concluded his intent was “irrelevant.”
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 superintendent suspended Aaron for an entire semester.
Aaron’s parents sued the district over the suspension, arguing that no actual threat was intended and that the suspension violated his free speech rights, particularly since the action in question took place off-campus. In 2002, a district court sided with the district, saying school officials were within their rights to interpret the avatar as a “true threat” to the welfare of VanderMolen.
Eventually, the case found itself in an appeals court earlier this year, and that court issued its ruling last week. Once again, the district won the day. As part of their reasoning, they cited several precedents, most notably the Tinker case, in which students had their rights violated because they were forced to remove anti-war arm bands. That ruling set a major standard as to what can be deemed student free speech and what is not. Interestingly, though, the court decided to quote from the Supreme Court’s Bong Hits 4 Jesus ruling, Morse v. Frederick, from just the previous week. In their Morse ruling, the Supreme Court wrote:
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.
Meanwhile, the appeals court addressed the issue that Aaron’s actions took place off-campus, again citing Morse:
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…. [I]t was reasonably foreseeable that the IM icon would come to the attention of school authorities and the teacher whom the icon depicted being shot… 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 [the Bong Hits 4 Jesus ruling], 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.”
What’s fascinating about this case is the astonishingly short period of time that took place between the Supreme Court’s prior ruling and the appeal court’s decision to cite it as precedent. Though Aaron’s suspension had nothing to do with drugs, as was central in the Morse case, they both shared the fact that the incidents in question took place off-campus. The Surpreme Court ruled that holding a banner with the phrase “Bong Hits 4 Jesus,” even if it took place off-campus and was done as a joke, undermined the school’s drug policies, particularly since they concluded that the event in question was school-sanctioned. The appeals court embraced the new precedent, concluding that Aaron’s actions, even if they took place off-campus as a joke, contradicted the school’s disciplinary policy and interrupted the normal course of educational activities at school.
I also can’t help but think of Kathy Sierra, who earlier this year received threatening comments on her blog. Even though the threats probably weren’t serious, she perceived them to be - so much so she holed herself up at home and canceled all public engagements. I can’t help but think of Kathy when I also think of Aaron’s teacher, Mr. VanderMolen. We can’t tolerate cyberbullying and online threats when they happen in the blogosphere, so why should the standard be any different in education? Balancing free speech and school discipline is, and will always be a challenge, particularly when so much student speech takes place online and off-campus. Protecting students’ rights to say unpopular opinions is enshrined in precedent, as it should be. But where do you draw the line? In this case, it’s somewhere just short of Aaron Wisniewski’s home computer, and the threatening icon he made about his teacher. -andy