T.V. ex rel. B.V. v. Smith-Green Cmty. Sch. Corp.

• Decision Date: 10 August 2011
• Docket Number: No. 1:09–CV–290–PPS.,1:09–CV–290–PPS.
• Citation: 275 Ed. Law Rep. 826,807 F.Supp.2d 767
• Parties: T.V., a minor child, by her parents, legal guardians and next friends, B.V. and T.V., and M.K., a minor child, by her parents, legal guardians and next friends, G.K. and R.K., Plaintiffs, v. SMITH–GREEN COMMUNITY SCHOOL CORPORATION and Austin Couch, Principal of Churubusco High School, Defendants.
• Court: U.S. District Court — Northern District of Indiana

275 Ed. Law Rep. 826

807 F.Supp.2d 767

T.V., a minor child, by her parents, legal guardians and next friends, B.V. and T.V., and M.K., a minor child, by her parents, legal guardians and next friends, G.K. and R.K., Plaintiffs,

v.SMITH–GREEN COMMUNITY SCHOOL CORPORATION and Austin Couch, Principal of Churubusco High School, Defendants.

No. 1:09–CV–290–PPS.

United States District Court,N.D. Indiana,Fort Wayne Division.

Aug. 10, 2011.

Kenneth J. Falk, ACLU of Indiana, Indianapolis, IN, for Plaintiffs.

James J. Shea, Sr., Linda A. Polley, Hunt Suedhoff Kalamaros LLP, Fort Wayne, IN, W. Erik Weber, Mefford Weber and Blythe PC, Auburn, IN, for Defendants.

OPINION AND ORDER

PHILIP P. SIMON, Chief Judge.

Not much good takes place at slumber parties for high school kids, and this case proves the point. During a summer sleepover, plaintiffs—16 year old T.V. and 15 year old M.K.—posed for some raunchy photos which they later posted online. When school officials caught wind of the saucy online display, they suspended both girls from extracurricular activities for a portion of the upcoming school year. This lawsuit, brought by T.V. and M.K. through their parents, seeks to vindicate their First Amendment rights. The defendants are the Smith–Green Community School Corporation and Austin Couch, the principal of Churubusco High School. Both sides now seek summary judgment. The case poses timely questions about the limits school officials can place on out of school speech by students in the information age where Twitter, Facebook, MySpace, texts, and the like rule the day. The school argues that they ought to be allowed to regulate this speech while the students claim that their First Amendment rights are being violated.

Let's be honest about it: the speech in this case doesn't exactly call to mind high-minded civic discourse about current events. And one could reasonably question the wisdom of making a federal case out of a 6–game suspension from a high school volleyball schedule. But for better or worse, that's what this case is about and it is now ripe for disposition.

FACTS

The parties agree that there are no facts in dispute that are material to a determination of liability. DE 65, p. 1; DE 92, p. 2. Here's what the record reveals: during the summer of 2009, T.V. and M.K. were both entering the 10th grade at Churubusco High School, a public high school of approximately 400 students. Both T.V. and M.K. were members of the high school's volleyball team, an extracurricular activity, and M.K. was also a member of the cheerleading squad, also an extracurricular activity, as well as the show choir, which is a cocurricular activity. Cocurricular activities provide for academic credit but also involve activities that take place outside the normal school day.

Try-outs for the volleyball team for the coming year would occur in July. A couple of weeks prior to the tryouts, T.V., M.K. and a number of their friends had sleepovers at M.K.'s house. Prior to the first sleepover, the girls bought phallic-shaped rainbow colored lollipops. During the first sleepover, the girls took a number of photographs of themselves sucking on the lollipops. In one, three girls are pictured and M.K. added the caption “Wanna suck on my cock.” In another photograph, a fully-clothed M.K. is sucking on one lollipop while another lollipop is positioned between her legs and a fully-clothed T.V. is pretending to suck on it.

During another sleepover, T.V. took a picture of M.K. and another girl pretending to kiss each other. At a final slumber party, more pictures were taken with M.K. wearing lingerie and the other girls in pajamas. One of these pictures shows M.K. standing talking on the phone while another girl holds one of her legs up in the air, with T.V. holding a toy trident as if protruding from her crotch and pointing between M.K.'s legs. In another, T.V. is shown bent over with M.K. poking the trident between her buttocks. A third picture shows T.V. positioned behind another kneeling girl as if engaging in anal sex. In another picture, M.K. poses with money stuck into her lingerie—stripper-style.

T.V. posted most of the pictures on her MySpace or Facebook accounts, where they were accessible to persons she had granted “Friend” status. Some of the photos involving the lollipops were also posted on Photo Bucket, where a password is necessary for viewing. None of the images identify the girls as students at Churubusco High School. Neither T.V. nor M.K. ever brought the images to school either in digital or any other format. In their depositions, both T.V. and M.K. characterized what they did as “just joking around” and disclaimed that the images conveyed any scientific, literary or artistic value or message, but testified that the photos were taken and were shared on the internet because the girls thought what they had done was funny and “wanted to share with [their] friends how funny it was.” DE 65–4, p. 24; DE 65–6, p. 13. ¹

Around August 4, a parent brought printouts of the photographs to Steve Darnell, the Superintendent of Smith–Green Community School Corporation. The parent reported that the images were posted on Facebook and Photo Bucket and that the photographs were causing “divisiveness” among the girls on the volleyball teams, because “two camps” had formed—girls that were “in favor ... of what was going on with the pictures” and “girls that just wanted to have no part in it.” DE 75–4, p. 3. Evidently, this woman's daughter did not play volleyball in the fall of 2009. Superintendent Darnell immediately took the pictures to Principal Couch, reported that the photos were “causing a disruption in extracurricular teams,” and told him to “follow code with this.” Id. at p. 4.² Separately, but on the same day as Superintendent Darnell provided the photographs to Principal Couch, the principal was contacted by a second concerned parent, one who happened to work at the school as an athletic department secretary, about the photographs posted on the internet.

The Churubusco High School Student Handbook for 2008–2009 contains an “EXTRACURRICULAR/CO–CURRICULAR CODE OF CONDUCT AND ATHLETIC CODE OF CONDUCT.” DE 65–2, p. 40. On page 25, this code provides:

The purpose of the “Extra–Curricular Code of Conduct” is to demonstrate to students at Churubusco High School who participate in organized extra-curricular activities that they not only represent themselves, but also represent Churubusco High School, as well. Therefore, those students who choose to participate in extra-curricular activities are expected to demonstrate good conduct at school and outside of school.... This code will be in force for the entire year including out of season and during the summer.

Id. Separately, under the heading “EXTRA–CURRICULAR/CO–CURRICULAR ACTIVITIES” on page 24, the Student 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.” Id.

After confirming the identities of the girls in the images, and discussing the matter with the Athletic Director and the Assistant Principal, within a day of Principal Couch's receipt of the photographs, he informed M.K. and T.V. that they had violated the athletic code and faced suspension from extracurricular and cocurricular activities. At the time, T.V. and M.K. were both participating in volleyball practices and M.K. was attending rehearsals for the show choir. Principal Couch did not discuss the situation with any member of the volleyball coaching staff, other than approaching the volleyball coach to confirm that the girls were playing volleyball and to inform the coach that he needed to speak with the girls because of an extracurricular violation. Principal Couch did not speak with the director of the show choir until after M.K. was suspended, and then simply to advise the teacher of the suspension.

Defendants explain the basis for Principal Couch's decision as his “determination that the photographs were inappropriate, and that by posing for them, and posting them on the internet, the students were reflecting discredit upon the school.” DE 75, p. 3. In addition, Principal Couch determined that the photographs had the potential for causing disruption of school activities. Discussing the context of his decision-making with respect to M.K. and T.V., Principal Couch cites two other recent incidents. One was the death of two students in a car accident two weeks earlier. The other was an incident from the spring of 2009, in which photos on the internet of students drinking alcohol were the subject of what the principal characterized as disruptive talk at school in the hallways and gymnasiums. Against this background, Principal Couch wanted the new 2009–2010 school year “to get off on the right foot,” and “needed to do something before this blew up.” DE 65–2, p. 13. The conclusion that the photographs represented a violation of the Student Handbook coupled with the anticipation of potential school disruption from the situation served as the basis for the discipline imposed.

Principal Couch informed T.V. and M.K. that they were being suspended from extracurricular and cocurricular activities for a calendar year pursuant to the school's 2008–2009 policy, for bringing discredit on themselves and the school. The portion of the policy cited provided that “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 extracurricular activities for all or part of the year.” It was explained to the girls that, under the policy, they could obtain a reduction of their punishment by making three visits to a counselor and then meeting with the school's Athletic Board to apologize for their actions. When he was contacted by T.V.'s parents, Superintendent Darnell indicated that he supported Couch's decision.

...