494 F.3d 34 (2nd Cir. 2007), 06-3394, Wisniewski v. Board of Educ. of Weedsport Cent. School Dist.

Docket Nº:06-3394-cv.
Citation:494 F.3d 34
Party Name: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.
Case Date:July 05, 2007
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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494 F.3d 34 (2nd Cir. 2007)

Martin WISNIEWSKI and Annette Wisniewski, on behalf of their son Aaron Wisniewski, Plaintiffs-Appellants,


BOARD OF EDUCATION OF the WEEDSPORT CENTRAL SCHOOL DISTRICT and Richard Mabbett, Superintendent of Schools, Defendants-Appellees.

No. 06-3394-cv.

United States Court of Appeals, Second Circuit.

July 5, 2007

Heard: April 17, 2007.

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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.

Before: NEWMAN, WALKER, and STRAUB, Circuit Judges.

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.


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

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transmit it to any other "buddy" during an IM exchange.

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 the icon and expressed regret. He was then suspended 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...

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