A Stitch in Haste

That didn’t take long:

As in Morse, 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.”

That is one of three favorable, and invalid, citations in the “pending case” to Morse v. Frederick, No. 06-278 (June 25, 2007) (a/k/a the “Bong Hits 4 Jesus” case).

The “pending case” was as follows:

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.
…
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. Beneath the drawing appeared the words “Kill Mr. VanderMolen.” Philip VanderMolen was Aaron’s English teacher at the time.
…
The icon was not sent to VanderMolen or any other school official.

More importantly, the IM exchanges took place entirely off school grounds — a pesky fact also insolently ignored by the Morse majority.

More importantly, this appellate court seems to have completely blanked out the all-important point that Morse’s carve-out of First Amendment rights for students applies only in the context of advocating illegal drug use. The decision is totally unambiguous on this. That was the whole hook upon which Chief Justice Roberts hung his “No Rights 4 You” reasoning.

And while advocating violence is certainly no more “political” than advocating illegal drug use, the fact remains: If it’s not about drugs, then Morse is inapposite. (Incidentally, all parties in the IM case essentially agreed that the icon was a crude and offensive joke, not a bona fide threat.)

If a minor commits an offense on school grounds, then the school should be permitted to discipline him accordingly. If he commits an offense off school grounds, however, then the school should have no jurisdiction at all, and should instead yield to law enforcement. Tinker’s “schoolhouse gate” should swing both ways.

The case is Wisniewski v. Bd. of Ed. of Weedsport Central School Dist., No. 06-3394-cv (2nd Cir., July 5, 2007) (PDF – 16 pages). (Via How Appealing; see also DODT.)

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