Bill would give Ind. schools broad authority over off-campus activity, speech

Legislation passed state House last week

INDIANA — A bill that would allow schools to punish students for off-campus activities could see Indiana students suspended or even expelled for off-campus speech.

Rep. Eric Koch, R-Bedford, said House Bill 1169 is an attempt to deal with growing issues like cyberbullying and cheating. The bill passed through the Indiana House of Representatives on Jan. 30 and is sitting in a Senate committee.

Under existing Indiana law, students may be punished for “unlawful activity” if the activity is reasonably deemed to cause “interference with school purposes or educational function.” It does not matter if the activity occurred on or off school grounds or if it happened when school is not in session.

Koch’s bill would remove the word “unlawful” and allow punishment of any off-campus activity that interferes with the school.

Ken Falk, legal director at the American Civil Liberties Union of Indiana, said he has concerns with the bill.

“From a First Amendment perspective,” Falk said, “if the student engages in lawful activity off of school grounds, there’s a very high standard that has to be applied before that can somehow lead to discipline.”

The bill has the support of the Indiana School Boards Association, according to the Madison Courier.

Asked if his bill could potentially infringe First Amendment rights, Koch referred to Kowalski v. Berkeley County Schools, a federal appeals court decision from July. The opinion in Kowalski allowed a school to punish “disruptive” off-campus speech.

Kowalski was a 4th U.S. Circuit Court of Appeals decision, and is therefore binding only in West Virginia, Virginia, North Carolina and South Carolina.

Falk said he has concerns over the need for a cheating and cyberbullying law at all. He said cheating should indeed be punished, but not through state law. As for cyberbullying, he said it should only be punished in cases where there is an imminent threat of violence.

If a student is a member of a gay rights group off campus, Falk said as an example, that student potentially could be punished if other students “take umbrage” with it.

“Clearly that cannot be deemed to be a disruption that interferes with school purposes,” Falk said, “when everything that student has done is off school grounds.”

Koch insisted that limiting student speech is not the intent of the bill.

“I wouldn’t knowingly promote anything that would infringe First Amendment rights,” Koch said.

Frank LoMonte, executive director of the Student Press Law Center, said other states could soon see similar bills replicated in their legislatures.

“This could be like a bad cold that gets passed from state to state,” he said.

LoMonte said even if the Kowalski case applied in Indiana, the bill would “lower the bar” to any and all off-campus speech — which could result in schools using it for “image control.” He said the Kowalski court found that cyberbullying can be punished without additional state law.

Despite the concerns posed with his bill, Koch was confident that the Senate wouldn’t pass it without working out all the kinks.

“If any concern arises,” Koch said, “there’s still sufficient opportunity to address it before the bill would become law.”

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