Today's post is from David L. Hudson, Jr., author of Let the Students Speak!: A History of the Fight For Free Expression in American Schools which will be released tomorrow, August 16th, by Beacon Press. Hudson is a First Amendment Scholar with the First Amendment Center at Vanderbilt University. He teaches at Vanderbilt University Law School and Nashville School of Law and blogs at the First Amendment Center, where this post originally appeared. 

“Not much good takes place at slumber parties for high school kids, and this case proves the point.” Despite that observation, U.S. District Judge Philip P. Simon found that Indiana school officials exceeded their authority when they punished two high school girls for posting provocative pictures of themselves online.

In 2009 during summer vacation, 16-year-old T.V. and 15-year-old M.K. posed for photos during a sleepover then posted them in what the court called a “saucy online display.” The court noted that several photos featured the girls pretending to lick a penis-shaped lollipop and wearing lingerie with money stuck in “stripper-style.”

The girls did not bring the images to school and all the activity took place off-campus. However, another parent brought printouts of the photos to Steve Darnell, superintendent of Smith-Green Community School Corp. The parent claimed that the images were causing divisiveness on the volleyball team — a squad which included T.V. and M.K.

Darnell took the photos to Austin Couch, principal of Churubusco High School. Couch suspended the girls from several volleyball games for violating the school’s “Extra-Curricular Code of Conduct” and student handbook. The handbook states: “If you act in a manner in school or out of school that brings discredit or dishonor upon yourself or your school, you may be removed from extra-curricular activities for all or part of the year.”

Couch also said the girls were suspended because their online photos had the potential to cause disruption at school.

In October 2009, the girls, represented by the American Civil Liberties Union of Indiana, sued in federal court, arguing that school officials violated the First Amendment by punishing them for purely off-campus conduct.

Judge Simon agreed with the students in his Aug. 10 opinion in T.V. v. Smith-Green Community School Corp.

The school defendants initially argued that the online photos were not expression and therefore did not trigger First Amendment protections. Simon disagreed, writing: “The record supports the conclusion that, although juvenile and silly — and certainly not a high-minded effort to express an idea such as burning a flag or wearing a black arm band — the conduct depicted in the photographs was intended to be humorous to the participants and to those who would later view the images.” In other words, the photos were speech that conveyed a particularized message sufficient to trigger First Amendment protections.

The school defendants then argued that they had the power to discipline the students under the U.S. Supreme Court precedent Bethel School District v. Fraser (1986) — a case in which school officials suspended a student for his sexually laced speech at a school assembly. The Fraser standard provides that school officials can punish students for lewd and vulgar speech. The defendants in the Indiana case argued that because the girls’ photos were lewd and vulgar, they should evaluated under Fraser. Simon disagreed, finding that Fraser did not apply to off-campus student speech.

Simon then addressed the seminal student-speech standard from the Supreme Court’s black armband case Tinker v. Des Moines Independent Community School District (1969). Under the Tinker standard, school officials can prohibit or punish students for speech if they can reasonably forecast that the student speech will cause a substantial disruption of school activities.

“Defendant’s showing of actual disruption is extremely weak,” the judge wrote. “In sum, at most, this case involved two complaints from parents and some petty sniping among a group of 15 and 16 year olds.”

Simon concluded that “no reasonable jury could conclude that the photos of T.V. and M.K. posted on the internet caused a substantial disruption to school activities, or that there was a reasonably foreseeable chance of future substantial disruption.”

He also ruled that the school policy which permits school officials to punish students for any conduct “that brings discredit or dishonor” on the school or student is too broad and vague.

Ken Falk, the ACLU of Indiana’s legal director, told the First Amendment Center Online: “The students and parents are very happy that the court recognized that there is a clear line beyond which a school cannot go in punishing students for expressive conduct.”

W. Erik Weber, an attorney for the school district, told the Associated Press that he believed the school officials were justified in their actions in this “unsettled area of the law.” He said it was too soon to determine whether the district would appeal because the judge did not rule on whether the school corporation was immune from damages under the 11^th Amendment, which often prohibits citizens from suing states for monetary damages.