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Wisniewski v. Board of Education of the Weedsport Central School District

June 20, 2006


The opinion of the court was delivered by: Chief Judge Norman A. Mordue



Presently before the Court is defendants' motion for summary judgment (Dkt. No. 38). Upon being charged with threatening a teacher, Aaron Wisniewski ("Aaron"), then a student at Weedsport Middle School, was afforded a Superintendent's Hearing pursuant to New York Education Law, § 3214(3)(c)(1). The Hearing Officer found that Aaron had circulated through the internet a threat to kill one of his teachers and recommended suspension for a semester. Defendant Board of Education of Weedsport Central School District ("Board") accepted the Hearing Officer's findings and imposed the recommended suspension. Plaintiffs claim that defendants' actions violated Aaron's rights under the First Amendment, 42 U.S.C. § 1983, and the New York Education Law.

For the reasons set forth below, the Court grants defendants' motion for summary judgment and dismisses the federal causes of action on the merits. The Court declines to retain jurisdiction over the state law claims and dismisses them without prejudice.



Unless otherwise indicated, the facts set forth in this section are undisputed based on the complaint, defendants' Statement of Material Facts, plaintiffs' response thereto, and the record.

In spring 2001, Aaron, who was 15 years old, was an eighth grade student at Weedsport Middle School ("School"), in the Weedsport Central School District ("District"). Aaron was present when, on March 29, 2001, School personnel visited his classroom to discuss school violence. They advised the students that all threats of violence would be taken seriously.

In early April 2001 Aaron created and attached to the instant messaging feature of his family computer an icon depicting a gun pointing to a head, a bullet leaving the gun, and blood splattering from the head. It bore the words "Kill Mr. VanderMolen." Mr. VanderMolen was Aaron's English teacher. Aaron attached the icon*fn1 to instant messages he forwarded from his home computer to about 15 friends, including classmates. He did not forward it to Mr. VanderMolen.

The icon circulated from Aaron's home computer to this group of friends for about three weeks. On April 25, 2001, another student, Chad McDeid ("Chad"), who had seen the icon, reported it to Mr. VanderMolen. The next day, Mr. VanderMolen viewed the icon and reported it to the District administration.

The following day, April 27, 2001, Linda Rice, the School Principal, and defendant Richard Mabbett, the District's Superintendent of Schools, met with Aaron and his parents. Also present was Lieutenant Lamphere from the Cayuga County Sheriff's Department, which the District had notified of the incident. At the meeting, Aaron acknowledged that he had created the icon. After the meeting, Principal Rice suspended Aaron from school for five days on the ground that he "made threatening icons and language directed towards a teacher over a home computer and sent it to several students."*fn2

Administrative Proceeding

On April 30, 2001, the District sent plaintiffs notice of a Superintendent's Hearing pursuant to section 3214(3)(c)(1), charging Aaron with threatening Mr. VanderMolen on April 26, 2001, based on a threatening message sent through the internet to other students. On May 16, 2001, the Sheriff's Department determined that Aaron did not constitute a "realistic threat" to Mr. VanderMolen or other School officials and closed its investigation. Norman J. Lesswing, Ph.D., a psychologist retained by plaintiffs to provide a professional threat assessment, concluded that Aaron did not pose a threat to Mr. VanderMolen or other School officials.

The Superintendent's Hearing took place on May 29, 2001, before an attorney, Lynda VanCoske, Esq., whom the Board had designated as Hearing Officer. Aaron was represented by counsel, who cross-examined the District witnesses and called witnesses on Aaron's behalf. At the close of the hearing, briefs were submitted to the Hearing Officer by counsel for Aaron and the District.

In its memorandum to the Hearing Officer, the District argued, inter alia, that the District treated the icon as a threat; that it was justified in doing so; that there was nothing about the icon that identified it as a joke or anything other than a serious statement; that the information possessed by the District did nothing to contradict the plain message of the icon; that the District's reaction was reasonable in light of the violence prevalent in schools today; that Aaron should have foreseen that his icon would be taken seriously as a threat; that a few days previously in a classroom presentation, School personnel had advised the students, including Aaron, that threats would be taken seriously; that Aaron was not discriminating about who received the icon and should not have been surprised that School officials learned of it; that it caused disruption in the School; and that Mr. VanderMolen felt threatened and did not take the icon as a joke. The District contended that the icon was a threat and thus not entitled to First Amendment protection. See Watts v. United States, 394 U.S. 705, 707 (1969).

Aaron's counsel submitted a memorandum to the Hearing Officer setting forth two basic contentions: (1) that under the circumstances no reasonable person could seriously consider Aaron's icon to be a real threat to kill Mr. VanderMolen; and (2) that it would be unconstitutional to discipline Aaron for the icon because it was protected by the First Amendment. Arguing that the icon was not a true threat and thus enjoyed First Amendment protection, counsel addressed the factors examined by courts in determining whether a statement is a true threat, citing Watts, 394 U.S. at 707, and Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 372 (9th Cir. 1996). These factors include the context of the statement, its conditional nature, and the hearers' reactions.

With respect to the context of the statement, counsel pointed to the following facts: there was no past conflict between Aaron and Mr. VanderMolen; Aaron's prior disciplinary record reflected only minor infractions; a search of Aaron's locker and backpack was negative; and Aaron did not communicate the threat to Mr. VanderMolen but circulated it outside of school among a group of friends. Counsel also refers to evidence that Aaron and at least one of his friends thought the icon was a joke.

On June 6, 2001, the Hearing Officer issued a recommendation which included the following findings:

Aaron is unquestionably bright and articulate. His testimony that the icons and message were a joke was unconvincing, and he provided no explanation, justification for context for these icons being construed as jokes. Common sense dictates that without context or explanation, the threatening words such as "Kill Mr. VanderMolen" are not a joke. Mr. VanderMolen did not take these words as a joke. Mr. VanderMolen testified that he was scared, concerned, and felt sick to his stomach upon reading the message. Until the issue was resolved, he asked to be removed from teaching Aaron's class because he felt uncomfortable teaching the class and was concerned about his and his six month old child's safety. The District honored that request. Ms. Rice testified that Mr. VanderMolen appeared anxious and fearful.

In addition, on approximately March 29, 2001, Ms. Rice, with the social worker and director of guidance, visited every class and spoke to students about the topic of threats. They advised students that any threats must be communicated to adults and that these threats will not be considered jokes. Aaron admits being present at that meeting. He heard Ms. Rice ...

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