In the fall of 2015, a three-ring binder glorifying the 1999 Columbine High School massacre was found in the stairwell of a Mansfield high school. That led to five students admitting they were part of a private online messaging group that vented hatred toward African-Americans, and displayed students with firearms.

One of the students expelled for his participation in the group challenged his punishment on constitutional grounds, but an Ohio appeals Court last week let the expulsion stand.

The Fifth District Court of Appeals ruled July 26 that the Madison Local School District did not violate the unidentified student’s rights when he was expelled for his role in producing the “Klebold Surprise” binder and participating in the “Klebold Kuck Krew” messaging group on the Kik smartphone application.

The Fifth District noted that neither the U.S. Supreme Court nor Ohio Supreme Court has ruled that students can be punished by schools for their off-campus speech made without using school resources. The appellate court indicated that the U.S. Sixth District Court of Appeals, which considers Ohio cases, also has not ruled on the issue. However, at least four other federal appeals court have done so. Based on their reasoning of those courts, it found the school was in its right to discipline the student.

The Fifth District affirmed the 2016 decision of a Richland County Common Pleas Court, which denied the challenge to the expulsion. The student’s mother, is identified in court records as “N.Z.”, filed the challenge on her son’s behalf and he is identified by the court as “Student.”

Binder Appears After Bomb Threat
On Tuesday, Oct. 6, 2015, Madison Comprehensive High School was evacuated after receiving a bomb threat. On Friday, Oct. 9, a teacher walking down the high school’s stairs noticed the three-ring binder laying in the stairwell with the words “Klebold Surprise” written on the cover, along with the names of the two Columbine shooters, Dylan Klebold and Eric Harris. Twelve students and one teacher perished at Columbine.

The Madison teacher notified the dean of students, who along with the school principal opened the binder and found the academic papers of a student identified as “G.E.” Under questioning, G.E. identified “Student” and another classmate, “B.C.” as the ones who wrote on the cover.

None of the three were forthcoming with information and the administrators confiscated the cell phones of G.E. and B.C. Student did not have a cell phone. While holding B.C.’s phone, a text message came in from another student, “C.C.,” stating the administrators knew about the Columbine discussions and that he was “going to get expelled.” Suspecting the student activity was more serious than writing names on a binder, C.C. was interviewed and revealed the four were members of a Kik messaging group. The background on C.C. cell phone was a photo of Adam Lanza, the man who committed the 2012 elementary school shootings in Sandy Hook, Conn., where 20 children and six teachers were murdered.

“A password was required to access the message group. The message group was named ‘Klebold Kuck Krew.’ The message group contained posts including hate speech specifically towards African-Americans, sexually aggressive language, discussions of school shootings, photos of students with access to firearms, photos of stabbing weapons, videos of students with firearms and comments about killing African-Americans,” the Fifth District opinion stated.

Student admitted to being an active participant since September 2015. The administrators called in two more students to be interviewed and notified local law enforcement, who participated in interviewing the students, gathered information, and called the students’ parents. The officers told the school administrators they believed the messaging group could be the forming of a hate group.

Students Removed From School
The administrators determined they needed to use the school’s emergency removal procedures to further investigate the matter. The school removed the six classmates, including Student, and the school principal explained the emergency removal process to the parents. Student was given a Friday, Oct. 16 date for his removal hearing, where the emergency removal could be challenged. The school was closed on Oct. 12 for the Columbus Day Holiday and all Madison schools were shut on Oct. 14 after a district-wide bomb threat forced their evacuation.

At the meeting with N.Z. and Student, the dean explained the series of events from the prior week. Student did not deny the accuracy of the account and repeated his admission to participating the in the message group. The principal, expected an apology, but Student stated “he did not have anything to say.” At the conclusion of the hearing, the administrators affirmed their emergency removal and provided a “Notice of Intent to Suspend from School” form to N.Z. and Student. Student was then suspended until Oct. 30.

After suspending Student, the administrators notified the Madison Local school superintendent they recommended that Student be expelled. The school notified N.Z. that on the last day of Student’s suspension, he would conduct an expulsion hearing. Madison Local and another local school district received a bomb threat on Oct. 22 and Madison Local received a shooter threat on Oct. 26.

Student, accompanied by two attorneys and N.Z., appeared at the expulsion hearing and he was expelled through Jan. 8, 2016. Student agreed to complete the remainder of the school year through an online school or alternative program. Student appealed the expulsion to the Madison Local Board of Education, which upheld the superintendent’s decision, and N.Z. appealed to the common pleas court.

N.Z. argued the emergency removal, suspension, and expulsion process violated Student’s due process rights because the school system did not follow the timeline required by R.C. 3313.66. She also argued the board violated Student’s First Amendment free speech rights.

The trial court found a “preponderance of reliable, substantial and probative” evidence supported the expulsion. The court noted the numerous bomb threats and shooting threats played a role in the school administrators not fully meeting the notification timelines required by R.C. 3313.66, but concluded that Student fully participated in all stages of the proceedings and was represented by an attorney during the expulsion hearing and appeal.

The trial court also found that while the Kik message group was a private conversation outside of school, the students brought the group into school by leaving the binder in the stairwell and attempting to stymie the school’s investigation with text messages during the school day encouraging members not to talk.

N.Z. appealed the decision to the Fifth District.

Appeals Court Finds No Rights Violation
Writing for the Fifth District, Judge Patricia A. Delaney stated the U.S. Supreme Court has found students are guaranteed due process rights by the U.S. Constitution when facing suspension or expulsion. Those due process rights require the school “give the student some kind of notice and afford some kind of hearing.”

N.Z. had claimed that she and Student were not given the required three-day notice between the time of his emergency removal and the time of the hearing on the matter. The school countered that it verbally informed N.Z. of its intent notify them in advance of the hearing. The national holiday and bomb threat evacuation limited their time to formally notify N.Z., the school system claimed. Judge Delaney noted N.Z. was notified in advance and she and her son attended the hearing, where he was given a chance to dispute the findings, but did not.

Judge Delaney rejected other due process challenges raised about the suspension and expulsion, noting that while other bomb and shooting threats interrupted the school schedule, N.Z. and her son received notice well in advance of their hearings and appeal opportunities.

Students Have First Amendment Rights, With Exceptions
Citing the U.S. Supreme Court’s 1969 Tinker v. Des Moines Independent Community School Dist. decision, the Fifth District explained that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” but related some regulations are allowed by school administrators.

Judge Delany wrote that the Tinker and three other U.S. Supreme Court cased uphold a school system’s right to curtail student speech, but all four cases deal with speech on school grounds.

“The students in this matter created the message group outside of school and without school resources. The issue raised by Mother is whether the school has authority to regulate off-campus speech,” she wrote.

Judge Delaney referenced decisions by other federal appeals courts, including a 2015 Fifth Circuit Court of Appeals decision (Bell v. Itawamba Cty. School Bd.) involving Mississippi high school students making a threatening video about teachers and coaches and posting it publicly on Facebook and YouTube. Bell and other cases the Fifth District noted upheld punishment for students who make public their off-campus threats about other students or school personnel.

N.Z. did not dispute the binder and message group referenced the Columbine shootings, included sexual language, and made racially charged comments. N.Z. argued the message was private among members and never intended to be shared with the Madison school community. The trial court found it did reach the school when the binder was left in the stairwell.

“The trial court found the student’s text warnings were an attempt to obstruct discovery of the message group by school officials. Further relevant to the trial court’s determination that the binder and the message group impacted the school community was that the school received a bomb threat three days before the binder was discovered,” she wrote.

The Fifth District wrote that under Tinker a school can restrict speech that “might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities” or “collides with the rights of other students to be secure and let alone.”

The appellate court concluded the binder did cause a panic by the teachers who were made aware of it, and caused the dean of students and principal to spend considerable time investigating the matter. Those circumstances could be considered a substantial disruption or material interference with school activities. The Court noted the principal considered the students’ comments to be a growing threat to the other high school students and that the school received three more threats of violence after the students were removed.

The Fifth District concluded that Madison Local was within its rights by citing the Ohio Supreme Court’s May 2017 State v. Polk where the Court wrote that schools have an obligation to keep their students safe. Quoting Polk, the Fifth District stated: “Columbine, Virginia Tech University, and now Sandy Hook underscore a fundamental policy change that has taken place in our schools. We now pursue a new fundamental value in our schools: security.”

Judges Craig R. Baldwin and Earle E. Wise Jr. joined the decision.

N.Z. v. Madison Bd. of Edn. 2017-Ohio-6692

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