INDIANA — A billthat would allow schools to punish students for off-campus activities could seeIndiana students suspended or even expelled for off-campus speech.
Rep. Eric Koch, R-Bedford, said House Bill 1169 is anattempt to deal with growing issues like cyberbullying and cheating. The billpassed through the Indiana House of Representatives on Jan. 30 and is sittingin a Senate committee.
Under existing Indiana law, students may be punished for“unlawful activity” if the activity is reasonably deemed to cause “interferencewith school purposes or educational function.” It does not matter if theactivity occurred on or off school grounds or if it happened when school is notin session.
Koch’s bill would remove the word “unlawful” and allowpunishment of any off-campus activity that interferes with the school.
Ken Falk, legal director at the American Civil LibertiesUnion of Indiana, said he has concerns with the bill.
“From a First Amendment perspective,” Falk said, “if thestudent engages in lawful activity off of school grounds, there’s a very highstandard that has to be applied before that can somehow lead to discipline.”
The bill has the support of the Indiana School BoardsAssociation, according to the MadisonCourier.
Asked if his bill could potentially infringe First Amendmentrights, Koch referred to Kowalski v.Berkeley County Schools, a federal appeals court decision from July. Theopinion in Kowalski allowed a schoolto punish “disruptive” off-campus speech.
Kowalski was a 4thU.S. Circuit Court of Appeals decision, and is therefore binding only in WestVirginia, Virginia, North Carolina and South Carolina.
Falk said he has concerns over the need for a cheating andcyberbullying law at all. He said cheating should indeed be punished, but notthrough state law. As for cyberbullying, he said it should only be punished incases 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 otherstudents “take umbrage” with it.
“Clearly that cannot be deemed to be a disruption thatinterferes with school purposes,” Falk said, “when everything that student hasdone is off school grounds.”
Koch insisted that limiting student speech is not the intentof the bill.
“I wouldn’t knowingly promote anything that would infringeFirst Amendment rights,” Koch said.
Frank LoMonte, executive director of the Student Press LawCenter, said other states could soon see similar bills replicated in theirlegislatures.
“This could be like a bad cold that gets passed from stateto state,” he said.
LoMonte said even if the Kowalskicase applied in Indiana, the bill would “lower the bar” to any and alloff-campus speech — which could result in schools using it for “image control.”He said the Kowalski court found thatcyberbullying can be punished without additional state law.
Despite the concerns posed with his bill, Koch was confidentthat the Senate wouldn’t pass it without working out all the kinks.
“If any concern arises,” Koch said, “there’s stillsufficient opportunity to address it before the bill would become law.”