School district trampled due process in criminal probe of student for Charlie Kirk message: lawsuit

Sharing a meme against President Trump in response to a memorial for assassinated conservative activist Charlie Kirk cost a Tennessee man his liberty for 37 days, which in turn got him fired. The Foundation for Individual Rights and Expression, which is representing Larry Bushart, told Just the News on Tuesday it's still prepping a lawsuit on his behalf.

The Alliance Defending Freedom beat FIRE to court in response to another alleged criminal investigation of speech related to Kirk in neighboring North Carolina, alleging a school district known for a Supreme Court precedent on school busing sanctioned an unidentified high school junior for praising Kirk's Christianity despite her school authorizing the speech.

Charlotte-Mecklenburg Board of Education officials ordered the removal of the girl's "Live Like Kirk—John 11:25" message on Ardrey Kell High School's "Spirit Rock" after the front office gave her permission, Monday's First Amendment lawsuit alleges. (The Bible verse refers to Christ's claim that those who believe in him will live after death.)

Officials didn't stop there, publicly accusing "G.S." of a crime and student conduct violation for vandalism, contacting law enforcement and forcing her to write a confession with their own preferred details – specifically the Bible verse – without ever telling the girl she had the right to remain silent and have legal counsel, the suit claims.

Her parents weren't consulted, or the girl made aware of her constitutional rights, before officials "forced her to reveal data from her cell phone," and when they "quietly closed the criminal investigation" three days later, officials refused to publicly clear her name and falsely claimed "they had never investigated her for anything," ADF says.

"Law enforcement has been contacted about the Ardrey Kell incident," WCNC reported at the time, citing Principal Susan Nichols' message to families Sept. 14, a day after the rock's painting. The news station said district officials "later confirmed this is not a criminal investigation, and school officials are handling the situation."

Director of school board communications Sheri Costa told Just the News on Tuesday it doesn't comment on active litigation and didn't answer a followup seeking its evidence that the investigation of the girl was not criminal in nature, in contrast to ADF's thorough documentation.

The lawsuit's exhibits include the girl's call logs with the "female school employee" who gave her permission, Assistant Superintendent Christi Bostic's text to principals asking for their "spirit rock procedures" after the message was painted and Nichols' email to parents that prompted Charlotte-Mecklenburg Schools Police Chief Jonathan Thomas's investigation.

Also included: the girl's email to Nichols defending herself against the principal's claims to parents, and a "handwritten notation" by Assistant Principal Kelly Holden about the girl's Sept. 12 phone call to get permission on her "mandated statement" about the painting.

Bostic's suggestion to principals to "consider putting some [spirit rock procedures] in place in the near future" shows that officials knew G.S. hadn't violated any policy by painting the rock, which never required permission to begin with, the suit says.

Before quietly exonerating G.S., the district revised what the suit calls its "unwritten Spirit Rock speech code" – under which it painted over the Kirk message and accused her of a crime – with a new written policy that gives officials "unbridled discretion" over student expression.

It affirmatively bans "political" and "religious messages" – previous paintings included support for Black Lives Matter and a recently dismissed principal – and requires messages to "reflect positive school spirit and uphold inclusive values," express “school-spirit and good news" and be in “good taste," without definitions, the suit says. 

Student of 'ordinary firmness' would be chilled by principal's false claims

The suit says some board members used Kirk's assassination "as an opportunity to air their grievances against him, often by taking his statements out of context and misrepresenting them." 

It cited board member Melissa Easley, who wrote on social media "do not expect me to feel sorry, pitty [sic] or mournful for the man that has gone around saying I or my spouse are abominations, that we are mentally ill, that we don't deserve the same rights as everyone else." (Easley has publicly called her husband "transgender-fluid" and herself "bisexual.")

Easley also misquoted Kirk as saying, "it's okay to sacrifice a few for your 2nd amendment rights." Kirk said it was "unfortunately" worth it to have "some gun deaths every single year so that we can have the Second Amendment to protect our other God-given rights." She later said she was speaking as citizen, not on behalf of the board.

Still, the messages "set the tone for other District officials," who ordered the Kirk message painted over "within hours" of G.S. and her friends painting it. They didn't touch the other messages the students painted on the rock: "Freedom 1776," a heart and an American flag, according to the suit.

G.S. intended for the Kirk message to express her "admiration" for "his desire to have respectful, meaningful conversations with others" and "to seek the truth, to stand firm in his beliefs, and to be bold in his faith—not as political messages," the suit also says. 

She cited John 11:25 to remind classmates that Kirk "still lives eternally in heaven with his Lord and Savior" and to share her faith in the resurrection.

The girl, parents Steven and Kristin Stout and her friends came to school to paint the rock for two hours starting at 4 p.m., but by 8 p.m. she learned from social media the rock had been painted over, which was "highly unusual" because messages "usually remain undisturbed for several weeks or even several months." 

She visited the rock later that night, where another girl said her friend on "Student Government" told her that officials ordered the message erased. G.S. learned from social media even later that someone else had repainted a Kirk message, but it had been quickly removed.

Assistant Superintendent Bostic texted the principals the next morning about setting rules for spirit rocks, and Principal Nichols told parents that afternoon the rock had been painted with "a message that was not authorized or sponsored by the school or the district."

Nichols falsely claimed that such acts, which have never required permission, "are considered vandalism to school property" and violate the code of student conduct, the suit says. She said the school was "cooperating with the investigation" by law enforcement, which the school initiated, also according to the suit.

The vandalism policy holds students and parents financially responsible for damage and offers punishment up to long-term suspension, meaning that in the wake of Nichols' message, "any student of ordinary firmness" would be chilled from expressing themselves by painting the rock, the suit also alleges.

Got permission to ask questions, not to search phone

"Less than an hour" into the school day that Monday, the girl's teacher told her in front of the class she had been called to "Student Services" – code for the principal's office – "embarrassing her further."

Assistant Principal Deborah Hitt sequestered G.S. in a conference room and ordered her to "write your statement down of what occurred over the weekend regarding the rock," without notifying her parents first or saying she could call her parents. Officials did the same with the two friends who helped G.S. paint the rock, the suit says.

When Hitt reminded G.S. she forgot to mention the Bible verse and the girl added it, Hitt said in a "strange, ominous tone of voice: 'Yeah. I think that’s the most important thing.'"

A few minutes after the girl returned to class, Hitt came to take her and her phone back to Student Services. She and Assistant Principal Kelly Holden called the girl's mother, Kristin, to get permission to question her about the rock, without telling Kristin "the nature of the questions" or her or her daughter's constitutional rights, the suit says.

Holden didn't ask Kristin for permission to search her daughter's phone, however, which Holden did following the call with Kristin, even though "the school's own phone records" would have confirmed the girl called the school to get permission to paint the rock. 

Despite Holden never advising mother or daughter she had a warrant, the girl believed "she had no choice" but to turn over the phone. Hitt and Holden then grilled G.S. about her mandated statement, which now confirmed she had called the school ahead of painting.

The girl reminded the duo that "several groups had painted the spirit rock on September 13 after she and her friends finished painting their message," to no avail.

When the whole family confronted Nichols about the inquisition, the principal admitted "there were no written policies or guidelines" about painting the rock, said she didn't know "who would make the final decision" about punishment or when, then "tried to distance herself" from her own email to parents, claiming she didn't think painting the rock was vandalism, also according to the suit.