Bill letting Indiana schools punish off-campus conduct gets shipped to study committee, buying students a reprieve

On Wednesday, Indiana high school students celebrated “First Amendment Day” at the state Capitol — and on Thursday, they got to keep their constitutionally protected freedoms safe for at least another year.

By a vote of 88-0, the state House voted Thursday night to accept a much-diluted Senate version of HB 1169, a controversial measure that — as originally filed — would have enabled schools to suspend or expel students whose behavior anywhere, even at home, was considered an “interference with school purposes.”

Indiana schools currently can punish illegal conduct that disrupts or interferes with school, but HB 1169 would have allowed suspension or expulsion even for lawful behavior.

Instead of granting schools the expanded disciplinary authority they sought, the bill as passed merely calls for the appointment of a 14-member study committee to look at “best practices for school discipline.” Among the 14 members will be eight state legislators and three local school administrators; students will not be represented.

State Rep. Eric A. Koch, R-Bedford, originally said that he filed the bill to give schools authority to punish online bullying. But critics noted that the bill was not limited to bullying behavior, nor did it provide any safeguards against discipline for constitutionally protected expression.

Koch’s bill overwhelmingly passed the House with almost no media coverage or public attention. But when it reached the Senate Education Committee, numerous experts — including witnesses from the Hoosier State Press Association and Indiana High School Press Association — testified to the danger of granting near-unlimited censorship authority over what students say off campus.

The Senate committee replaced Koch’s bill with the milder study committee alternative. Initially, the House declined to accept the Senate version and insisted on the original, which sent the bill to a joint House-Senate conference committee for negotiation.

Compromise wording was floated this week — allowing schools to punish off-campus behavior that interferes with school purposes if the behavior is “tortious” (legally wrongful) or “delinquent” — but no agreement could be reached.

The conferees met Tuesday without reaching an accord, and on Thursday, the House gave notice it was receding from its insistence and bowing to the Senate’s revisions. The study-committee version then unanimously passed the House, sending it to Gov. Mitch Daniels.

Had the bill passed as filed, Indiana would have had the nation’s most expansive punitive authority over students’ off-campus behavior. But the law would have risked invalidation on First Amendment grounds.

Under the Supreme Court’s Tinker standard, students may be punished for what they say — even on campus during school time — only if their speech rises to a “substantial” disruption of school functions. “Interference with school purposes” is a less protective standard, and it is unlikely that a court would have enabled schools to punish more speech off campus than they may constitutionally punish on campus.