Ind. school can't punish volleyball players over slumber party pics


Latest court weighs in on off-campus speech





INDIANA — A high school violated the First Amendment when it punished members of its volleyball team for posting pictures of penis-shaped lollipops on the Internet, a federal judge ruled Wednesday.

The decision came two years after two 10th-grade girls at Churubusco High School in Northeast Indiana were suspended from the volleyball team and other extracurricular activities. The students were punished after they posted photos of themselves with “phallic-shaped rainbow colored lollipops.” The photos were taken at a slumber party and, according to court documents, showed the girls simulating sex acts.

The judge’s decision found that both the behavior shown in the photos and the images themselves are protected by the First Amendment. The judge also struck down part of the school’s conduct code that allows students to be punished for acting “in a manner in school or out of school that brings discredit or dishonor upon yourself or your school.”

Ken Falk, legal director for the ACLU of Indiana, assisted the students with their lawsuit and said he was pleased with the ruling.

“It’s important for courts to re-emphasize the fact that youth have First Amendment rights and that there is a line between things that schools can discipline based upon and things they cannot,” he said.

Of broader importance was the rationale used by the court to rule in the students’ favor. Following a number of off-campus speech cases decided in recent weeks, the judge addressed the legal standards that should apply to speech by students that takes place online.

Rejecting the school’s argument that online speech can be punished simply for being “lewd” or “offensive,” the judge held that the Bethel School District v. Fraser standard does not apply to off-campus speech. In that 1986 Supreme Court case, a school was allowed to punish a student for a nomination speech at school full of sexual innuendo.

Judge Philip Simon declined to rule on whether the Tinker v. Des Moines standard should apply off campus. Under the landmark Tinker case, schools can punish students for speech that causes a substantial disruption of the school.

Even if Tinker was applicable, Simon wrote, school officials violated the students’ First Amendment rights.

According to court documents, it was the parents of other students who brought the photos to the attention of school officials. The school’s attorney had argued that the complaints created a disruption and that the photos were dividing the volleyball team, creating the potential for future disruption.

“In sum, at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds,” Simon wrote. “This can’t be what the Supreme Court had in mind when it enunciated the ‘substantial disruption’ standard in Tinker.”

Turning to the conduct code under which the students were punished, the judge found it unconstitutionally vague and overboard. He wrote that a rule against bringing “discredit or dishonor” on the school could include things like speaking out on “taboo” topics or marching in support of political causes, and that the language is too subjective.

Adam Goldstein, attorney advocate at the Student Press Law Center, said the case is also significant because Simon found that being temporarily removed from an extracurricular activity is enough of a punishment to violate the First Amendment.

“This is the first time in a while that a court has recognized that you don’t measure a constitutional violation by what’s taken away from you – you measure it by why it’s taken away,” Goldstein said.

The case is not over, however, as the judge still has to decide how much the school will pay in damages, if anything. Falk said the parties are waiting on an appeals court decision in an unrelated case that will determine whether school districts are entitled to immunity.

Simon also ruled Wednesday that Austin Couch, principal at the high school, was entitled to immunity from the lawsuit because the rights he violated were not “clearly established” at the time.

Linda Polley, counsel for the district, was not immediately available for comment. She has the option to appeal the ruling.

Despite a clear victory for the students, the judge did seem frustrated by the facts of the case.

“I wish the case involved more important and worthwhile speech on the part of the students, but then of course a school’s well-intentioned but unconstitutional punishment of that speech would be all the more regrettable.”


Churubusco High School, Indiana, news

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