An Indiana school district is arguing that two girls who were disciplined over online photos in which they posed with phallic lollipops cannot go to trial on free-speech claims because their behavior was "wholly inconsistent with the fundamental values of a public education."
The case tests whether school administrators can stretch beyond campus limits and regulate out-of-school conduct. The two girls, who were sophomores at Churubusco High School, were suspended from the varsity volleyball team after a parent brought their suggestive photos to the principal's attention.
Under Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503 (1969), a “showing that the students’ activities would materially and substantially disrupt the work and discipline of the school” is necessary to justify suppression of student expression.
The Smith-Green Community School Corp. says the girls, identified only as T.V. and M.K., violated the school's code of conduct and the principal appropriately punished them under Tinker and Bethel Sch. Dist. v. Fraser, 478 U.S. 675 (1986), a U.S. Supreme Court precedent that allows schools to censor lewd, vulgar or offensive speech.
“Plaintiffs have acknowledged that the subject photographs depict [simulated] oral and anal sex,” the school board says in a motion for summary dismissal. “Such conduct is wholly inconsistent with the fundamental values of a public education.”
But the Supreme Court has yet to clearly define standards for punishing off-campus, Internet activity. And T.V. and M.K. argue in their own motion for summary judgment that the photos did not affect the “educational functioning” of the school and were not “intended to satisfy or arouse sexual desires.”
“They are sophomoric, not pornographic, and are therefore entitled to protection under the First Amendment,” the girls' ACLU lawyer, Kenneth J. Falk, wrote.
U.S. District Judge Philip P. Simon of Fort Wayne, Ind., is scheduled to hear the motions May 27. A ruling in favor of the girls would align him with a California judge who refused to “uphold school discipline of student speech simply because young persons are unpredictable or immature.” J.C. v. Beverly Hills Unified Sch. Dist.
T.V. and M.K. practiced their modeling skills during summer vacation sleepovers at M.K.'s home, using rainbow-colored, penis-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.
“Would you agree that's a simulation of oral sex?” an attorney asked T.V. during a deposition, referring to one of the photos.
“Yes,” she replied.
Churubusco High principal Austin Couch initially banned the girls from extracurricular activities. The ban was later reduced to a quarter of the fall 2009 volleyball season but the girls still sued Smith-Green for a court order declaring their punishment unconstitutional and for unspecified damages.
Smith-Green attorney Linda A. Polley argues that the photos are pornographic under both federal and state law and have no redeeming “artistic” value. “[W]hen one considers that young girls (and not adults) are performing the simulated sex acts, there is no doubt that the photographs appeal to prurient interests,” she says.
But when Couch was asked in a deposition to explain what was disruptive about the 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.”
That does not appear to meet the Tinker test. As the ACLU's Frank says,
There was absolutely no hint of disruption of educational functioning and such a hint would be insufficient in any event given that a court “cannot accept, without more, that the childish and boorish antics of a minor could impair the administrators' abilities to discipline students and maintain control.”
By Matthew Heller