ACLU Sues School in Online Photo Controversy: Female Students Punished for Racy MySpace Pictures

Brittany Grome, Government Law Review Member

Background

           In Indianapolis, Indiana, two sophomore girls at Churubusco High School were punished by the school district for posting sexually suggestive photos on their MySpace pages.[1] According to the complaint, the girls dressed in lingerie and pretended to lick “penis-shaped” lollipops.[2] These photos were taken during their summer break at a sleepover party.[3] The school district banned the girls from participating in extracurricular activities for one full year, which was later reduced to a quarter of the volleyball season.[4] As a result, the American Civil Liberties Union (ACLU) filed a federal lawsuit on the girls’ behalf, arguing that the Churubusco School District violated the girls’ constitutionally protected First Amendment right to free speech.[5] The ACLU also argues that the school district went too far and publicly embarrassed the girls when it forced them to apologize to an all male coaching board and mandated that the girls undergo counseling.[6]

           Currently, there is no set standard of how school districts should address student online activity that occurs outside of school. This is a growing controversy and teens that have done similar things in the past have faced prosecution. In March of this year, a fourteen year old New Jersey student was arrested on child pornography charges when she posted nude pictures of herself on her MySpace profile.[7] Other students have been expelled or lost scholarships.[8] Similarly, in 2006, a seventeen year old student in Pennsylvania was suspended for creating a parody website that made fun of his principal on MySpace.[9] The district court ruled that his off campus actions did not “disrupt school operations.”[10]

             “From the standpoint of young people, there’s no real distinction between online life and offline life . . . it’s just life.”[11] The decision to punish these sophomore girls is drawing a lot of attention and raising many questions. Should students be punished for online activities that take place outside of school? Did the pictures placed online have a substantial effect on school activities?  Was the school district justified in its actions and does it have a right to regulate student out of school online behavior? Does a student shed her First Amendment right to free speech simply because she participates in an extracurricular activity, such as a sports team?

              It is true that schools are allowed to regulate student conduct that has an adverse effect on the school.[12] The ACLU argues that the photos were a joke, intended only to be shared with friends and set on strict privacy controls.[13] However, the Supreme Court is going to have to decide whether the photos adversely affected the school and if the punishment violated the girls’ First Amendment rights. This note explores both the perspectives of the school district and of the ACLU, and it examines the continuing battle between student privacy and school internet regulation.

             Split Issue

              Internet networking sites, such as MySpace and Facebook, are a modern day Pandora’s box and the digital savvy generation of today’s teenagers are most likely to fall victim to its seductive possibilities. Indeed, the First Amendment protects the rights of our citizens who: speak, write, display symbols, and express beliefs over the internet. One of the fundamental purposes of the First Amendment is to protect controversial speech.[14] To date, the Supreme Court has not held whether a school district may punish a student for off-campus internet use, such as displaying photos from the privacy of the student’s own home.  Student off-campus online activities raise difficult First Amendment issues.

           District courts across the country are split on this issue. Several lower courts have applied the test used in Supreme Court decision, Tinker v. Des Moines Independent Community School District, which held that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” [15] However, these courts have also held that the rights of students in public schools are not without limitations.[16] Several other district courts have concluded that student speech that occurs outside of school is fully protected by the First Amendment, even when it finds its way into the school system.[17] As a district court in Pennsylvania concluded, “expression may not be prohibited simply because society finds the idea offensive or disagreeable.”[18] A school district and administrators must point to a well-founded expectation of disruption.[19]

             Over the years, the Supreme Court has broadly defined when a school district can lawfully punish a student for exercising his or her right to free speech. The United States Supreme Court in Tinker has ruled that students can be disciplined for activities that occur outside of school if the activities adversely affect school activity, such as causing disruption or posing a threat of danger.[20] However, there is extensive debate over the exact boundaries of student first amendment rights, especially since the internet has come into play. With continuing pressures placed upon school districts and administrators to act, it is inevitable that the Supreme Court will have to address the issue of out-of-school internet expression by students.

                Substantial Disruption

                The lawsuit, filed in U.S. District Court in Fort Wayne, names Principal Austin Couch, Churubusco High school, and the school district as defendants.[21] According to an attorney for the Smith-Green school district, Principal Couch was simply enforcing the northeast Indiana school’s athletic handbook, “which allows the principal to bar from school activities any student-athlete whose behavior in or out of school ‘creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School.’”[22] The position of Steve Darrnell, the school district’s superintendant, is that student-athletes are and should be held to a higher standard.[23]  “‘We [Churubusco High School] expect our athletes to be held to a higher standard of behavior identified by the [Indiana High School Athletic Association] (“IHSAA”) and our board through adopted student behavior rules and expectations . . . when students choose to violate extra-curricular expectations, there are consequences.’”[24]

              Administrators argue that because student athletes are considered role models and participation in extracurricular activities is voluntary, additional monitoring of student-athlete behavior is warranted in order to uphold the morals of the institution.[25] According to the school district, these girls violated well-known expectations of the student-athlete handbook and the violation of such moral code disrupts school activity.[26] Additionally, students do not have an absolute right to extracurricular activities.[27] Case law has shown that if discipline involves the exclusion from extracurricular activities, such as here, the punishment is more likely to be upheld.[28] 

              Further, because off-campus, student internet speech and expression are evolving First Amendment issues and highly fact-specific, both parties have a difficult battle ahead of them.  As determined by the Seventh Circuit, the Tinker standard is met if the school district “has reason to believe” that a student’s expression will cause a material disruption.[29] “[T]he substantial disruption test is applied to student conduct that occurs in class or out of [school], which for any reason–whether it stems from time, place, or type of behavior–materially disrupts class work or involves substantial disorder or the rights of others.”[30]Although the school district is not required to wait until the disruption occurs, school administrators must still supply proof upon which the belief of disruption is based.[31] In other words, the school district has the burden of proof in providing a nexus between the “racy” MySpace photos and a substantial disruption that may or has affected the school environment. Because there is no clear definition, courts must look to case law to determine if the actions of the girls constitute a substantial effect. Churubusco High School may want to point to similar, prior acts that may have caused disruption in school. The school must also show that their student handbook policies relating to discipline and responsibility are not unconstitutionally vague.[32]

                 Additionally, a student’s First Amendment rights cannot be restricted simply because the school district finds the expression provocative, controversial, or distasteful, or because school administrators disagree with the content.[33] According to the ACLU, the main issue before the court is what impact the photos have on the school environment.[34] The answer is none. The ACLU argues that there must be a line drawn between where school stops and student expression begins.[35]  This suit is asking that school districts no longer be able to punish non-disruptive conduct that occurs outside of school. The record indicates that, “during [a] sleepover [over summer break], the girls took pictures of themselves pretending to kiss or lick a large multi-colored novelty lollipop-shaped phallus . . . as well as pictures of themselves in lingerie with dollar bills stuck in their clothes . . . .”[36] The girls intended these pictures to be a joke and all participants considered it to be so.[37] The pictures made no reference to the school district nor indicated that these girls were students at Churubusco High School.[38] These racy photos were posted on MySpace where the privacy controls were set so that only friends of the plaintiffs could view them.[39] Further, there is no indication that these pictures were accessed using school computers or during school hours. The record further indicates that these pictures only reached the school house gate through the hands of a third party.[40] 

                Conclusion

                This debate between off-campus student internet expression and school regulation is not a new phenomenon. Not only does this case affect the lives and reputations of two high school sophomores, but if it reaches the Supreme Court, the decision may have legal ramifications, as it will affect all present and future students. The main issue involved here is not the fact that two fifteen year old girls posted sexually suggestive photos of themselves on MySpace, (which many would argue is a matter of parental discipline or criminal charges), but whether schools have the right to punish students for an online activity, unrelated to school, and done in the privacy of their own homes. When student off-campus expression fails to substantially disrupt the school environment or pose a “true threat,” First Amendment rights of students must be upheld. The ultimate decision of where to draw the line will not be an easy one.

Edited by Marisa Floriani


[1] Associated Press, School Sued in Online Photo Controversy, AOL News, Oct. 30, 2009, http://news.aol.com/article/aclu-sues-churubusco-high-school-for/745429.

[2] Id.

[3] Id.

[4] Megan Stembol, Sexy Pics on MySpace Spark Lawsuit, Oct. 29, 2009, http://www.wane.com/dpp/video/local/local_wane_churubusco_Sexy_pics_spark_Churubusco_lawsuit_200910292233_rev1.

[5] Associated Press, supra note 1.

[6] Id.

[7] Associated Press, Girl Posts Nude Pics, Is Charged With Kid Porn, MSNBC, Mar. 27, 2009, http://www.msnbc.msn.com/id/29912729/.

[8] Associated Press, supra note 1.

[9] Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (W.D.Pa 2007).

[10] Id.

[11] Associated Press, supra note 1 (quoting Interview with John Palfrey, Harvard University law professor and co-director of the Berkman Center for Internet and Society).

[12] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[13] Associated Press, supra note 1.

[14] See, e.g., Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949) (“That is why freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. There is no room under our Constitution for a more restrictive view.”).

[15] Tinker, 393 U.S. at 506.

[16] Id. at 506-07.

[17] Thomas v. Bd. of Educ., 607 F.2d 1043, 1052 (2d Cir. 1979).

[18] Layshock, 496 F. Supp. 2d at 597 (citing Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 210 (3d Cir.2001)).

[19] Tinker, 393 U.S. at 509.

[20] Id.

[21] Associated Press, supra note 1.

[22] Id.

[23] Id.

[24] Id.

[25] Laura Donaldson, Racy MySpace Pictures Spark Lawsuit With Local School, Ind. News Ctr., Nov. 6, 2009, http://www.indianasnewscenter.com/news/local/69412002.html.

[26] See Associated Press, supra note 1.

[27] Burrows v. Ohio High Sch. Athletic Ass’n, 712 F. Supp. 620, 627 (S.D.Ohio 1988) (citing Hamilton v. Tennessee Secondary Sch. Athletic Ass’n, 552 F.2d 681, 682 (6th Cir.1976)) (finding that there is no constitutionally protected right to participate in interscholastic athletics).

[28] See id.

[29] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[30] Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 214 (3d Cir.2001). 

[31] Lowery v. Euverard, 497 F.3d 584, 596 (6th Cir. 2007).

[32] Flaherty v. Keystone Oaks Sch. Dist., 247 F. Supp. 2d 698, 705 (W.D. Pa. 2003).

[33] See e.g., Layshock, 496 F. Supp. 2d at 597.

[34] Associated Press, supra note 1.

[35] Id.

[36] Stembol, supra note 4. 

[37] Associated Press, supra note 1.

[38] Id.

[39] Id.

[40] See id.

2 Comments

Filed under Constitutional Law, Criminal Law, Municipal Law, Uncategorized

2 responses to “ACLU Sues School in Online Photo Controversy: Female Students Punished for Racy MySpace Pictures

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