Two Indiana girls who were disciplined for posing with penis-shaped lollipops and displaying the photos online have won an important free-speech victory in their lawsuit against a school district but may end up with no damages.

U.S. District Judge Philip P. Simon of Fort Wayne, Ind., ruled earlier this month that the principal of Churubusco High School violated the girls' First Amendment rights by suspending from the varsity volleyball team in August 2009 after a parent brought their suggestive photos to the principal's attention.

“The conduct in which [the girls] engaged ... had a particularized message of crude humor likely to be understood by those they expected to view the conduct, and so was sufficiently expressive as to be considered within the ambit of the First Amendment,” Simon concluded in his decision.

The district had argued that the photos were pornographic under both federal and state law and fell within the ambit of a U.S. Supreme Court precedent that allows schools to punish students for vulgar and lewd speech. “Not even a single photograph meets the definition of 'deviate sexual conduct,'” Simon said.

The judge granted the girls' motion for summary judgment on the issue of liability against the principal, Austin Couch, and Smith-Green Community School Corp. But he also said that Couch was immune from damages because the law “involving student speech originating off-campus and by use of the internet” was not clearly established at the time he punished the girls.

As for Smith-Green, Simon delayed ruling on damages until the 7th U.S. Circuit Court of Appeals decides whether school districts are “arms of the state” that are entitled to immunity under the 11th Amendment.

The girls, identified only as T.V. and M.K., practiced their modeling skills during summer vacation slumber parties at M.K.'s home, using rainbow-colored, phallus-shaped lollipops as props. They posted the photos on MySpace and Facebook pages that were accessible only to their “friends” and on Photobucket, an image-hosting website.

Couch initially banned the girls from extracurricular activities for a year, finding they had brought “discredit” upon the school. The ban was later reduced to 25 percent of the fall 2009 volleyball season but the girls still filed suit for a court order declaring their punishment unconstitutional and for unspecified damages.

In his ruling, Simon noted that the case “poses timely questions about the limits school officials can place on out of school speech by students in the information age where Twitter, Facebook, MySpace, texts, and the like rule the day.”

The suspensions of the two girls, he said, were unconstitutional in part because school officials had failed to show that “the students’ activities would materially and substantially disrupt the work and discipline of the school,” as required by Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969).

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

On the damages issue, Simon said Couch has “qualified immunity” because “on the current state of the developing law in this context, particularly involving student speech originating off-campus and by use of the internet, Couch’s actions could reasonably have been thought to be consistent with the rights they are alleged to have violated.”

But the principal may have caught a break here. While courts may not have clearly established the limits of school regulation of off-campus, Internet speech, they have certainly made it clear that extracurricular conduct is not punishable absent “substantial disruption.”

When Couch was asked in a deposition to explain what was disruptive about the girls' photos, he could only respond that a “similar incident” had occurred the previous spring and “This had the — the potential of doing the exact same thing, being in the hallways, being in the gymnasiums, causing a disruption.”

Simon himself said the school district's “showing of actual disruption is extremely weak” and “school officials cannot point to any students creating or experiencing actual disruption during any school activity.”

By Matthew Heller
8/24/11