Family sues Cherry Creek School District over suspension after gun photo

Girl's Snapchat post showing weapons, facial scarf, finger gesture caused fear, district says

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A student who posted a Snapchat photo that shows her and a sibling holding semi-automatic firearms has sued the Cherry Creek School District, claiming a five-day suspension violated her First Amendment right to free speech.

“Nothing about the image itself, or its caption, constitutes or promotes illegal activity,” says the complaint in the federal lawsuit, filed in the U.S. District Court for the District of Colorado.

The school district's policy allows for suspension due to “behavior on or off school property which is detrimental to the welfare, safety, or morals” of students or school personnel, according to a letter from the Endeavor Academy principal, which is included in the Feb. 14 complaint.

The Cherry Creek district cannot discuss matters of litigation, said Abbe Smith, district spokeswoman.

"What I can tell you is that this case involved multiple social media posts that concerned the school community and resulted in multiple parents keeping their kids home from school out of concern for safety," Smith said.

The complaint argues that the school did not identify a specific policy that the student broke when it informed her of the suspension and that a follow-up letter pointed to a policy but didn't assert that the Snapchat post caused “a substantial disruption” to school activities.

The legal action seeks, in part, for the court to declare Cherry Creek's policies as unconstitutional and to wipe the suspension from the student's record.

'Engaged in protected speech'

The student — a 17-year-old senior at Endeavor Academy, an alternative high school in Centennial — is identified as “A.K.” and a plaintiff in the lawsuit, which was filed by her mother.

A.K. posted a photo of herself the morning of Oct. 10 on Snapchat, a social media application, wearing a black scarf wrapped around her head, according to the complaint.

The photo did not bear a caption, but several of the student's volleyball teammates messaged her to say they thought the photo was racist. A.K. removed the photo, the complaint says.

She then reposted the photo with the caption: “Allahu akbar (I live in America so [expletive] you if your offended, I can do what I want),” according to the complaint. The phrase at the beginning is commonly used by Muslims in prayer but also has become associated with terrorist attacks.

After receiving more complaints from teammates and threats that they would report her, the student “self-reported” what she posted on Snapchat to the principal's office to make the school administration aware, the complaint says.

Principal Caroll Duran did not express concern regarding the post at that time. The student was called back into the office later that day after Duran heard about the post from other individuals, according to the complaint.

At that point, Duran advised the student to be “more sensitive” about her social media use but told her she couldn't be punished for it, the complaint says.

That night, the student and her older brother planned to go to a shooting range at the Centennial Gun Club.

“Plaintiff and her family are firearm enthusiasts, strong supporters of the First and Second Amendments, and encourage family members to regularly practice to maintain firearm proficiency,” the complaint says.

The family's attorneys are listed as part of the Firearms Policy Coalition in California, a nonprofit that advocates for liberties and constitutional rights, the complaint says.

Before going to the shooting range, the student posted the photo that the principal said spurred her suspension. It shows her and her older brother wearing scarves covering their heads and most of their faces, while she holds a semi-automatic pistol and her brother holds a semi-automatic rifle. A Confederate flag appears to sit in the background, and both are giving the middle-finger gesture.

Their scarves are shemaghs, which are popular in Middle Eastern countries and used for practical reasons by U.S. military members, the complaint says. The older brother is an Army veteran.

The photo's caption read: “me and my legal guardian are going to the gun range to practice gun safety and responsible gun ownership while getting better so we can protect ourselves while also using the first amendment to practice our second amendment.”

It was posted at the student's home outside of school hours, the complaint says.

A parent of one of the student's classmates made a report to Safe2Tell — an anonymous reporting tip line commonly used in school communities — about the photo soon after it was posted, the complaint says. That same night, Aurora Police Department officers came to the student's father's house in response but told him there was no threat, according to the complaint.

The student's mother came with her to school Oct. 11, where Duran said the student would be suspended for five days.

“When we see pictures of a 17-year-old holding an assault (firearm), it sends panic through our building,” Duran said, according to the complaint.

Duran and the assistant principal agreed that A.K. had not threatened anyone and did not identify a specific school policy she had violated, the complaint says.

The discussion on Oct. 11 didn't mention a post other than the one in which the student is holding a firearm, according to the complaint.

'Additional consequences'

That same day, Endeavor Academy emailed A.K.'s mother a letter from Duran that cited school district policy JKD-1-E and the district's conduct and discipline code, as well as a corresponding state law, Colorado Revised Statutes 22-33-106 (1).

That law states that behavior on or off school property that is detrimental to students' welfare or safety can be grounds for suspension or expulsion at a public school.

“As we have previously discussed, any further incidents will result in additional consequences being taken by Endeavor Academy,” says Duran's letter, included in the complaint.

The complaint argues the student “engaged in protected speech.”

Although some of her schoolmates follow her on Snapchat, the post was not specifically directed at them and “is self-evidently not an express or implied threat against anybody,” the complaint argues. The caption is “explicitly political,” it adds.

The letter “failed to explain how or why” the student's conduct was detrimental to the welfare, safety or morals of Endeavor's students or staff, the complaint says.

The complaint characterizes the district's policies as “unconstitutionally vague and overbroad.”

The language “makes it impossible for an ordinary person, such as (A.K.), to understand what speech is prohibited,” the complaint says.

Cherry Creek School District, Centennial Colorado, Endeavor Academy, gun, Snapchat, Ellis Arnold

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