Judge: Teen’s racist carvings in bathroom stall at Weare high school violated state’s Civil Rights Act

MANCHESTER, NH – Edward Ackerly violated the state’s Civil Rights Act when he carved the phrase “Blacks stand no chance” and the first two “Ks” in the phrase “KKK”  inside a boy’s bathroom stall at John Stark Regional High School in Weare, a judge has ruled.

Judge Amy B. Messer in Hillsborough County Superior Court Northern District,  issued the ruling in Attorney General John M. Formella’s civil action case against Ackerly, who was 16 at the time of the April 20, 2022 incident. The state is seeking preliminary and permanent injunctive relief as well as the imposition of a $5,000 fine. A hearing on that portion of the case is set for May 15 at 1:30 p.m.

According to Messer’s ruling, on April 20, 2022, Ackerly and two of his friends were in the first-floor boy’s bathroom at the Weare high school.  When Ackerly entered the restroom, his friends showed him graffiti carved into a wall of one of the bathroom stalls. The graffiti included the following: “Kill N****** AKA David,” “N***** Kill”; and swastika symbols. “AKA David” referred to a Black student at the school who was purportedly one of Ackerly’s friends.

Ackerly then carved the phrase “Blacks stand no chance” and the first two “Ks” in the phrase “KKK.” Later, about 3 p.m. the school’s principal, Gary Dempsey, and Assistant Principal Brian Emery, learned from a staff member that the bathroom had been vandalized. Dempsey and Emery immediately closed it to the public and began reviewing surveillance footage to determine who were the vandals.  Dempsey and Emery also contacted the Weare police.

Ackerly and his two friends were identified as potential perpetrators because the surveillance footage of the hallway showed them entering and leaving the bathroom at various times together, and staying in the bathroom longer than usual. The next day, Dempsey interviewed the three boys separately about their involvement with the racist graffiti. Initially, all three students denied any involvement. Eventually, each student admitted to their role in creating the graffiti.

Ackerly took responsibility for the phrase “Blacks stand no chance” and the first two “Ks” in the phrase “KKK.” Ackerly’s father was present for part of the defendant’s interview. Dempsey and Emery contacted the Black student’s parents to inform them that the graffiti mentioned him by name.  The two other boys admitted to carving the rest of the graffiti.

After Dempsey concluded the interviews, he suspended all three boys for 10 days, the maximum penalty he could impose. Later, Emery followed up with Weare police and updated Officer Chad Averill about the school’s investigation, providing him with notes from the interviews.

Ackerly and his father agreed to a voluntary interview with Officer Averill on April 25, 2022. During the interview, Ackerly told Averill his two friends hailed him into the bathroom to show him the graffiti and that he disapproved of it. Ackerly also denied any involvement with the vandalism or writing any of the racist graffiti. The interview ended shortly after Ackerly’s father encouraged the defendant not to answer Averill’s question about why his statements were inconsistent with what he told Dempsey.

Messer, in an analysis of the case, said under state law the attorney general is empowered by statute to “bring a civil action for injunctive or other appropriate equitable relief” against any person whom “the attorney general has probable cause to believe . . . has violated any provision of [the Act].”

In Ackerly’s case, the state had to prove he actually damaged property; the damage was motivated by race, and the damage interfered with the Black student’s right to engage in lawful activity.

“There is no dispute that the defendant damaged the school’s property by carving graffiti into a bathroom stall,” Messer wrote. “Likewise, there is no dispute that the property damage interfered with (the Black student’s) right to engage in a lawful activity, in this case, going to school without fear for his safety. Thus, the instant case turns on whether the State has shown by clear and convincing evidence that race motivated the defendant’s property damage.”

Ackerly argued he was not motivated by race in carving “Blacks stand no chance” and “KK” because he thought it was a joke and that he was peer pressured into doing so, and “the words themselves are not egregious and are historically accurate and not racially motivated,” Messer said.

The state contended the words themselves are steeped in race and that even if the defendant succumbed to peer pressure, the context of the existing racist graffiti is evidence that race motivated the defendant’s conduct.

The state had to prove its case by clear and convincing evidence, meaning the evidence had to show it was “highly probable” or “reasonably certain” that Ackerly’s carvings were racially motivated.

Messer said it does not require the state to discount every possibility as to why the defendant carved the phrases he did, rather it requires the state to prove that it was highly probable that the defendant’s carvings were racially motivated.

The state met that burden, Messer said.

“When the defendant entered the bathroom, graffiti including the “N word” and swastikas were already carved into the bathroom stall. As the state points out, the defendant could have chosen not to contribute to the vandalism, or to have contributed to it in a manner that was not racially motivated. However, the defendant chose to contribute racially-charged graffiti. The defendant’s carvings specifically singled out Black people, both by explicitly referencing Black people and an organization that historically has an anti-Black association,” Messer wrote.

Messer was unpersuaded by Ackerly’s other arguments.  She said the fact Ackerly may have succumbed to peer pressure or may have been more susceptible to peer pressure due to his age or other educational challenges does not change the fact that his choice of content and location of the graffiti makes it highly probable that race motivated the defendant’s carvings.

Additionally, she said the fact that the defendant was reportedly friends with the Black student at the time of the incident does not preclude that race motivated the defendant’s carvings, as the statute requires only that the property damage be motivated by race and not a showing of racial animus.

She said even if Ackerly thought the graffiti was a joke and that he was simply contributing to the joke, “that alleged intent was nonetheless racially motivated based on what the defendant carved and what carvings already existed.”

Ackerly also argued that racial language may be used in a manner that is not racially motivated, such as music lyrics or stand-up comedy jokes.

“Here, however, there is no evidence that the defendant intended his carvings to have any artistic value outside of the language’s obvious racial connotations. Lastly, the Court is not convinced that the defendant was motivated to make a reflection of historical fact about the plight of Blacks in America in a public high school bathroom where racially charged graffiti already existed,” Messer wrote.

Ackerly also argued that it was unfair to issue a judgment against him since he was already adjudicated in a juvenile delinquency action for his conduct.

Ackerly, the judge said, doesn’t cite any case law for that position and she isn’t aware of any.  She already had ruled that double jeopardy wasn’t applicable because the case is a civil action.

And, she said, as the state pointed out, state law authorizes the state to bring an action to enforce the NH Civil Rights Act against those under the age of 17.

Formella brought non-criminal complaints against all three students. One had to pay a $500 fine, complete 100 hours of community service, write a 3,000-word paper on racism and racist speech and commit no further violations of the Civil Rights Act.

The remaining student’s agreement was not disclosed because of his younger age.