Slumber party “raunchy photos” bring suspensions

During the summer of 2009, two sophomore volleyball players at Churubusco High School in Indiana were at a slumber party. Identified only as T.V. and M.K., they took sexually suggestive pictures of themselves and posted them on MySpace because they were “humorous.” In the photos they simulated sex acts with rainbow colored, penis-shaped lollipops.

Although they had their privacy settings limited to their friends, someone downloaded and circulated the pictures when school began in the fall. The principal suspended the girls from all extracurricular activities for the school year. Their activities included volleyball, cheerleading and show choir.

Churubusco Volleyball (M.K. & T.V. not shown)

After meeting with their parents, they were required to complete three counseling sessions and apologize to the Athletic Board. Once done, their penalty was reduced to suspension for one-quarter of the semester . The girls complied because they wanted to return to sports.

In October, 2009, the girls filed a lawsuit against the school district, the principal and the school. They claim that their free speech rights were violated by the discipline since their actions occurred off-campus, during the summer, and had no disruptive effect on the school. The high school wasn’t named or shown in the pictures.

The school sees their behavior in a different light. They maintain that their athletic code exists year-round not just in season and that the principal is authorized to discipline any student-athlete whose behavior in or out of school “creates a disruptive influence on the discipline, good order, moral or educational environment” of the school.

The girls seek an order prohibiting the school from further discipline of any student for off-campus, non-disruptive behavior and a clean record for each. They also asked for a jury trial and unspecified damages.

Update: In August, 2011, a federal court ruled* in the students’ favor. Chief Judge Philip P. Simon wrote for the court that the punishment imposed on the girls for their out of school expression violated their First Amendment rights. No one’s rights were violated by the photos that were brought to the attention of the principal by a few concerned parents. No substantial disruption, as required by Tinker,  occurred. He also concluded that the school’s “Student Handbook provision that authorizes discipline for out of school conduct that brings “dishonor” or “discredit” upon the school or the student is so vague and overbroad as to violate the Constitution.” The issue of damages was left for further consideration. The school district has the option to appeal the court’s decision.

*T.V. and M.K. v. Smith-Green Community School Corp., U.S. District Court (Northern District, Indiana) August 10, 2011.