Suit over expelled student alleges free-speech rights violated

The Huntsville School District violated a student’s right to free speech when it expelled him for posting a photograph of himself on Instagram wearing a trench coat and holding an assault rifle, according to a lawsuit filed in federal court in Fayetteville.

“For this exercise of protected expression, K.P. has been expelled from the school district for an entire year,” according to the lawsuit filed by attorneys Monzer Mansour of Fayetteville and W. Whitfield Hyman of Fort Smith.

The junior at Huntsville High School was identified in the lawsuit only as K.P. The suit was filed in late April on behalf of his mother, Jessica McKinney of Madison County. She wants a jury trial, the expulsion overturned and punitive damages.

Principal Roxanne Enix defamed K.P. when she “falsely” accused him of “criminal and terroristic conduct toward a school community,” according to the lawsuit. Enix said she can’t comment on the case.

“It is not Huntsville School District policy to comment on student discipline,” she said in an email.

K.P. posted the photo on Instagram while at his father’s house in Rogers on Feb. 24 — 10 days after a school shooting left 17 people dead at Marjory Stoneman Douglas High School in Parkland, Fla., according to the court filing.

K.P. was trying to emulate a 1920s mobster holding a machine gun because he liked the “aesthetic,” according to the lawsuit. He posted no

words on Instagram with the photo.

The next morning, when K.P. saw some of the comments others had posted under the photo, he deleted the post.

One student had written: “When I drop my pencil, start shooting,” according to the lawsuit. Another wrote “school shooter meme.”

The School Board met March 5 and expelled K.P., but he will be allowed to take core courses online, according to an April 22 letter that Enix sent to McKinney.

According to a transcript of the expulsion hearing, McKinney told the School Board that her son is a “model student.” He has “almost perfect grades,” has no discipline issues, has a perfect attendance record and is getting scholarship offers to run track in college, she said.

“All I have to say is this is going to have huge repercussions for his future, and it’s not right to make an example out of him when he’s a star student and there’s plenty of people doing worse things,” McKinney said, according to the transcript.

K.P. had replaced the photo Feb. 25 with one in which he was wearing the trench coat but not holding a gun, according to a court filing. In the caption under the new photo, K.P. wrote

that “nothing bad was intended” with his previous post.

“I’m an ambitious, young enterprising individual, who wouldn’t throw my future away for something as pointless as a school shooting,” he wrote under the photo. “If I wanted to make an impact I would choose a much more high profile crowd th[a]n a bunch of hicks and jocks who are never going to be anything of particular value.”

K.P. went on in the post to say his friends go to the school.

“Why would I perform an action that would only bring negativity and pain into their lives?” he wrote. “Life is about spreading positivity, and making our lovely earth better when we are called out of it than it was when we first began breathing its air, and drinking its water.”

When K.P. returned to his mother’s residence that evening, police officers arrived and questioned him.

“The officers concluded that no crime had been committed and that K.P. posed no threat to his school community or to anyone else,” according to a plaintiff’s brief. “By his own initiative, K.P. offered the officers his three personal firearms as a gesture of good faith and demonstration of peaceful motives. The officers took the firearms and returned them in less than a week.”

The next day, Feb. 26, a police officer went to Huntsville High School and spoke with

Enix, saying no crime had been committed.

But Enix said she was recommending expulsion because K.P. engaged in “terroristic threatening related to school shooting posts on social media,” according to the brief.

Enix had received calls over that Feb. 24 weekend from concerned teachers and crying parents, according to the court filing.

She said K.P. had disrupted the learning environment by creating a situation where students and teachers were afraid to go to school the next Monday and parents were afraid to send their children to school that day, according to the brief.

Enix had referred the board to a section in the student handbook concerning expulsion, according to the court filing. That section stated that students couldn’t use threat, intimidation or fear (among other things) to disrupt any school mission, process or function.

Another section of the handbook states: “The district’s administrators may also take disciplinary action against a student for off-campus conduct occurring at any time that would have a detrimental impact on school discipline, the educational environment or the welfare of the students and/or staff.”

McKinney’s attorneys argue that those sections of the student handbook are “unconstitutionally vague and overbroad.”

K.P., his mother and his father couldn’t find any provision

of the student handbook that K.P. had violated, according to the brief.

Kristen Craig Garner, staff attorney for the Arkansas School Boards Association, said trench coats were worn by the shooters at Columbine High School in Colorado in 1999.

“That image communicates a whole package of information with it,” she said. “A picture of you holding an assault rifle while wearing a polo shirt sends a different message.

“The gun by itself, if he’s wearing ordinary street clothes, that’s not communicating a clear message that people would associate as a threat. But when you couple that with iconic garments associated with school shootings, to me that’s different.”

Holly Dickson, legal director for the American Civil Liberties Union of Arkansas, didn’t attach a similar significance to the trench coat.

“If the facts are limited to what you said — a picture of the student holding an assault rifle — photo taken and posted not on school time and devices, then yes, he has a right to post the photo,” she said in an email. “If there are other posts or facts and circumstances surrounding the post that would indicate this was a threat of some sort, then that would be a different animal.”

Garner said the First Amendment argument is an interesting theory, but school administrators are hypersensitive about school shooting threats because there have been so many recently.

“This is not a really good time to do First Amendment experiments,” she said. “It could end badly.”