Ind. students, school settle ‘penis pops’ online speech case without money damages

A pair of Indiana students will not receive money damages from the school district that punished them for Facebook photos, despite a judge ruling in their favor.

The students have settled their free speech lawsuit against the Smith-Green Community School Corporation. Under the settlement, the students will not receive damages or attorney’s fees, but the school corporation is prohibited from enforcing provisions in its student handbook that allowed the students to be punished after posting pictures of themselves with penis-shaped lollipops.

The school corporation can no longer enforce provisions that allow students to be removed from extracurricular activities because the students act “in a manner in school or out of school that brings discredit or dishonor upon [the students] or [the] school,” Judge Philip Simon wrote in a final judgment issued Tuesday.

The order makes permanent an injunction from August, and comes nearly three years after two 10th-grade girls were suspended from the Churubusco High School volleyball team and other extracurricular activities after posing with the “phallic-shaped rainbow colored lollipops.”

In Simon’s earlier ruling, he found the students had engaged in protected speech when they posted the photos at home on their own time. He ruled that students’ online speech cannot be punished merely because it is “lewd” or “vulgar,” and that the Indiana teens’ photos did not cause a disruption at school.

Ken Falk, legal director for the American Civil Liberties Union of Indiana, represented the students.

Falk said he “had nothing to say other than what’s in the final judgment.”

Linda Polley, counsel for the district, had no comment on the agreement. She had the option of appealing the judge’s decision, but the agreement ends the case without requiring the district to pay the students any money.