INDIANA — A highschool violated the First Amendment when it punished members of its volleyballteam for posting pictures of penis-shaped lollipops on the Internet, a federaljudge ruled Wednesday.
The decision came two years after two 10th-grade girls atChurubusco High School in Northeast Indiana were suspended from the volleyballteam and other extracurricular activities. The students were punished afterthey posted photos of themselves with “phallic-shaped rainbow coloredlollipops.” The photos were taken at a slumber party and, according to courtdocuments, showed the girls simulating sex acts.
The judge’s decision found that both the behavior shown inthe photos and the images themselves are protected by the First Amendment. Thejudge also struck down part of the school’s conduct code that allows studentsto be punished for acting “in a manner in school or out of school that bringsdiscredit or dishonor upon yourself or your school.”
Ken Falk, legal director for the ACLU of Indiana, assistedthe students with their lawsuit and said he was pleased with the ruling.
“It’s important for courts to re-emphasize the fact thatyouth have First Amendment rights and that there is a line between things thatschools can discipline based upon and things they cannot,” he said.
Of broader importance was the rationale used by the court torule in the students’ favor. Following a number of off-campus speech casesdecided in recent weeks, the judge addressed the legal standards that shouldapply to speech by students that takes place online.
Rejecting the school’s argument that online speech can bepunished simply for being “lewd” or “offensive,” the judge held that the Bethel School District v. Fraserstandard 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 fullof sexual innuendo.
Judge Philip Simon declined to rule on whether the Tinker v. Des Moines standard shouldapply off campus. Under the landmark Tinkercase, schools can punish students for speech that causes a substantialdisruption of the school.
Even if Tinker wasapplicable, Simon wrote, school officials violated the students’ FirstAmendment rights.
According to court documents, it was the parents of otherstudents who brought the photos to the attention of school officials. Theschool’s attorney had argued that the complaints created a disruption and thatthe photos were dividing the volleyball team, creating the potential for futuredisruption.
“In sum, at most, this case involved two complaints fromparents and some petty sniping among a group of 15 and 16 year olds,” Simonwrote. “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 werepunished, the judge found it unconstitutionally vague and overboard. He wrotethat a rule against bringing “discredit or dishonor” on the school couldinclude things like speaking out on “taboo” topics or marching in support ofpolitical causes, and that the language is too subjective.
Adam Goldstein, attorney advocate at the Student Press LawCenter, said the case is also significant because Simon found that beingtemporarily removed from an extracurricular activity is enough of a punishmentto violate the First Amendment.
“This is the first time in a while that a court hasrecognized that you don’t measure a constitutional violation by what’s takenaway from you – you measure it by why it’s taken away,” Goldstein said.
The case is not over, however, as the judge still has todecide how much the school will pay in damages, if anything. Falk said theparties are waiting on an appeals court decision in an unrelated case that willdetermine whether school districts are entitled to immunity.
Simon also ruled Wednesday that Austin Couch, principal at the high school, wasentitled 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 immediatelyavailable for comment. She has the option to appeal the ruling.
Despite a clear victory for the students, the judge did seemfrustrated by the facts of the case.
“I wish the case involved more important and worthwhilespeech on the part of the students, but then of course a school’swell-intentioned but unconstitutional punishment of that speech would be allthe more regrettable.”