Challenge to High School Policy That Excludes from Extracurricular Activities Students Whose Out-of-School Speech “Reflects Discredit Upon [the] High School”

From T.V. v. Smith-Green Community School Corp. (N.D. Ind. Mar. 11, 2010); the opinion itself deals with only a preliminary procedural question (it refuses to certify a class action), but the discussion of the facts suggests that there’ll be an interesting dispute on the merits:

T.V. and M.K. are sophomores at Churubusco High School in Whitley County, Indiana …. T.V. and M.K., by their parents as next friends, bring this case pursuant to 42 U.S.C. § 1983, challenging the constitutionality of a policy of Churubusco High School, administered by Mr. Couch as the principal, which they contend violates their First Amendment rights….

The amended complaint sets out the following version of the facts underlying T.V. and M.K.’s challenge to the policy. During the summer of 2009, T.V. and M.K. attended a sleepover with friends who were also students at Churubusco High. During the sleepover, the girls took pictures of themselves, including pictures in which they “pretend[ed] to kiss or lick a phallus shaped multi-colored lollipop that they had purchased.” Both T.V. and M.K. posted the pictures on their MySpace pages. Someone saw the photos, printed them out and gave them to Principal Couch. After reviewing the photos and consulting the school’s Student Handbook, Principal Couch suspended T.V. and M.K. from extra-curricular activities for the entire 2009-2010 school year….

Eventually, Principal Couch gave the students a chance to have the suspension reduced from the entire school year to one-quarter of the school year. But to get the reduced penalty, Principal Couch required T.V. and M.K. to attend three counseling sessions and go before the Athletic Board (a group of all-male coaches and Couch) to apologize for their behavior. Both T.V. and M.K. complied with Couch’s request and their suspension from extra-curricular activities was reduced to a quarter of the school year.

T.V. and M.K. contend that their First Amendment rights of free speech are violated by the policy, because it allows the principal “to bar students from athletics and other extracurricular activities for expressive activity which takes place off of school grounds and has no effect or impact on the school itself.” The portion of the Student Handbook at issue reads as follows:

These policies apply to all extra-curricular and co-curricular participants. * * *

It shall be recognized that the Principal, by the administrative authority vested in him/her by the Smith-Green Community School Corporation, may exclude any student-athlete from representing Churubusco High School if his/her conduct in or out of school reflects discredit upon Churubusco High School or the IHSAA or creates a disruptive influence on the discipline, good order, moral, or educational environment at Churubusco High School.

… Because the amended complaint challenges only discipline for conduct that is not disruptive of school activities, T.V. and M.K. appear not to be challenging the constitutionality of disciplinary action for out-of-school activity that is disruptive to school activities.

The Complaint also reports that the girls also posted “pictures of themselves in lingerie with dollar bills stuck in their clothes.” The school district’s Answer asserts that the pictures fall within the First Amendment exceptions for “obscenity” and “child pornography.” This strikes me as improbable given the description given in the Complaint unless the lingerie was unusually unrevealing, or the girls posed themselves with a focus on lewd exhibition of their genitals; but it may well be that there are facts about the pictures that are not adequately reported in the complaints. As I said, it should be interesting to see when the case is considered on the merits.

The school district’s opposition to the motion for class certification also argued that “The Parents of potential child pornographers are not the appropriate individuals to adequately represent the First Amendment rights of all current and future Churubusco High School student athletes and current and future students involved in co-curricular and extra-curricular activities.” The court did not rely on that argument, however, in denying class certification.