Judge: School Violated Rights by Punishing Girls for MySpace Photos

Published Online: August 12, 2011

Education Week

By The Associated Press

An Indiana school district violated the First Amendment rights of two teenage girls who were punished for posting sexually suggestive photos on MySpace during their summer vacation, a federal judge ruled.

Fort Wayne, Ind.

The case involving Churubusco High School and Smith-Green Community School Corp. raised questions about the limits school officials can place on out-of-school speech in a digital era. U.S. District Judge Philip Simon delayed a decision on whether to award damages, pending a ruling in a separate case before the 7th U.S. Circuit Court of Appeals in Chicago.

Wednesday's ruling stemmed from a lawsuit the American Civil Liberties Union of Indiana filed on the teens' behalf in October 2009. The lawsuit claimed the district improperly banned the girls, who were sophomores at the time, from extracurricular activities for expression that didn't involve the school, then humiliated the girls by requiring them to apologize to an all-male coaches' board and undergo counseling after the photographs were circulated at school.

The U.S. Supreme Court has ruled that students can be disciplined for activities that happen outside of school, so long as the school can prove the activities were disruptive or posed a danger and that it was foreseeable the activities would find their way to campus.

The ACLU argued that the school violated the girls' First Amendment rights by punishing them for photos never intended for public dissemination.

"The families in this case were convinced the students' constitutional rights were violated and the policy itself was also unconstitutional," ACLU legal director Ken Falk said Thursday. "The issue is that we're dealing with expressive conduct by students out of school that does not affect schools."

The girls, then 15 and 16 years old, took the photos during a 2009 sleepover with friends before school started and posted them on their MySpace pages, setting the privacy controls so only those designated as friends could view them. In the photos, the girls wore lingerie and pretended to lick a penis-shaped lollipop. Other photos depicted the two in sexually suggestive poses with various props. None of the photos made any reference to the school.

A parent who obtained copies of the photos brought them to school Superintendent Steve Darnell and complained they were causing "divisiveness" among the volleyball team, court records show.

Principal Austin Couch subsequently ordered the girls suspended from volleyball, show choir and cheerleading for the year. He later reduced the penalty to 25 percent of fall semester activities after the girls completed three counseling sessions and apologized to the coaches' board.

School officials argued that the photographs were obscene and weren't protected by the First Amendment. They said Couch was enforcing the northeast Indiana school's athletic code, which allows the principal to bar from school activities any student-athlete whose behavior in or out of school "creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."

Simon said the photographs didn't meet the definition of obscenity under Indiana law and found the district's discipline policy was "so vague and overbroad as to violate the Constitution."The ruling noted that courts have upheld First Amendment rights involving photographs of flag burnings, sit-ins and other expressions. In this case, Simon wrote, the photographs, "although juvenile and silly," were intended to be humorous to the girls and their intended teenage audience.

W. Erik Weber, an attorney for the school district, said Thursday that he believes the school had the right to discipline the students. He called it an "an unsettled area of the law."

He said it's too soon to say whether the district will appeal because the judge still must rule whether it has immunity from damages.

Simon deferred a decision on damages until the appeals court rules in a case that will decide whether Indiana school districts are considered public entities and thus immune from damages under the Constitution.

Courts have ruled districts don't have 11th Amendment protection because they have local control over funding and taxes, but Smith-Green argues that 2008 changes to Indiana's school funding formula removed local control of school funding and that the school corporation is now an arm of the state.