Agentless Backup is Not a Myth

Student speech in the US continues to take a beating.

The Supreme Court, in the infamous "Bong Hits 4 Jesus" case decided last month, signaled to the federal judiciary that it was open season on student speech. Indeed, Justice Clarence Thomas, in a concurring opinion, argued that students should have no free speech rights whatsoever.

Now the ripples from that case's jurisprudential cannonball have started to radiate. In a case decided last week by the 2nd Circuit Court of Appeals, the court upheld a semester-long suspension because of a student's AOL Instant Messaging buddy icon against a First Amendment challenge brought on the student's behalf by his parents.

The school, Weedsport Middle School in New York, suspended the student, Aaron Wisniewski, after it came to the attention of school administrators that Wisniewski's AIM account displayed a crude drawing of a pistol firing a bullet at a person's head, with the caption "Kill Mr. VanderMolen." VanderMolen taught Wisniewski English at the time.

Wisniewski displayed the icon in his communications with AIM contacts - some of whom were also Weedsport students - for three weeks. Wisniewski never displayed the icon to the teacher in question or any other school official.

The school administration only became aware of the buddy icon after one of Wisniewski's classmates told the teacher about it and provided him with a copy. The teacher forwarded the icon to school officials, who suspended Wisniewski for five days and ordered a review of the situation by the superintendent.

During this time, a police investigator interviewed Wisniewski and concluded that the icon was meant as a joke, and that Wisniewski posed no real threat to the teacher or the school. A psychologist who evaluated Wisniewski reached the same conclusion.

The superintendent's review found otherwise, however, ruling that the icon was threatening, and not meant as a joke. The review also found that, although the icon was only displayed outside of school, it violated school rules and disrupted school operations. The reviewer dismissed the opinions of the investigator and psychologist, stating that Wisniewski's intent was irrelevant to the inquiry.

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