Wisniewski ex rel. Wisniewski v. Bd. of Educ - 494 F.3d 34 (2d Cir. 2007)

Rule:

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. 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.

Facts:

The eighth-grade student's instant messaging icon consisted of a drawing of a pistol firing a bullet at a person's head and words calling for the killing of the student's English teacher. The icon was sent to 15 individuals, some of whom were the student's classmates, and was available for viewing for three weeks. After the icon was brought to the teacher's attention, the teacher was allowed to stop teaching the student's class. At a hearing regarding a proposed long-term suspension, a hearing officer found that the icon was threatening, violated school rules, and disrupted school operations. The school board suspended the student for one semester. Subsequently, plaintiffs, the student’s parent, filed a 42 U.S.C.S. § 1983 action, alleging that defendants, the school board and the school superintendent, violated the First Amendment when they suspended the student. Plaintiffs appealed from a judgment of the United States District Court for the Northern District of New York granting summary judgment in favor of defendants.

Issue:

By suspending the student for the latter’s act of transmitting an instant messaging icon calling for the killing of a teacher, did the defendants violate the student’s First Amendment rights? 

Answer:

No.

Conclusion:

On appeal, the court held that the student's icon did not constitute protected speech under the First Amendment. The court concluded that the icon crossed the boundary of protected speech because there was a reasonably foreseeable risk that the icon would come to the attention of school authorities and that the icon would materially and substantially disrupt the work and discipline of the school. That the transmission of the icon occurred away from school property did not insulate the student from school discipline. Accordingly, the court affirmed the district court's judgment.