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T.V. v. Smith-Green Community School Corp.
Citations: 807 F. Supp. 2d 767; 2011 U.S. Dist. LEXIS 88403; 2011 WL 3501698Docket: No. 1:09-CV-290-PPS
Court: District Court, N.D. Indiana; August 10, 2011; Federal District Court
During a summer sleepover, two high school girls, T.V. and M.K., took and later posted explicit photos online, which led to their suspension from extracurricular activities by school officials. They filed a lawsuit against the Smith-Green Community School Corporation and the principal, Austin Couch, claiming a violation of their First Amendment rights. The case raises important questions regarding the extent of school authority over students' off-campus speech in the digital age. The school contends it has the right to regulate such speech, while the students argue their rights are infringed upon. The factual background reveals that the girls, both entering 10th grade, were active members of their school’s volleyball and cheerleading teams, and engaged in taking provocative photos during multiple sleepovers, some of which were posted on social media platforms. The images, while inappropriate, did not identify the girls as students of Churubusco High School, nor were they brought to school. Both parties agree on the material facts concerning liability, and the case is now ready for resolution. T.V. and M.K. described their actions involving certain photographs as lighthearted and lacking in serious artistic or scientific value, stating they shared the images online for humor among friends. On August 4, a parent presented these photos to Superintendent Steve Darnell, claiming they were causing division within the volleyball team, leading to two factions: those supporting the photos and those wanting to distance themselves from the situation. Although the reporting parent’s daughter was not a volleyball player, Darnell promptly informed Principal Couch about the disruption caused by the images and instructed him to adhere to school codes. On the same day, another concerned parent, who worked in the school’s athletic department, also contacted Principal Couch regarding the photos. The Churubusco High School Student Handbook outlines an "Extra-Curricular Code of Conduct," emphasizing that students represent the school both in and out of school, and that improper behavior could result in removal from extracurricular activities. After identifying the girls in the photos and consulting with the Athletic Director and Assistant Principal, Principal Couch notified T.V. and M.K. that they had violated the athletic code and would face suspension from extracurricular activities. At the time, both were engaged in volleyball practices, with M.K. also involved in show choir rehearsals. Principal Couch only briefly discussed the matter with the volleyball coach and did not communicate with the show choir director until after M.K.'s suspension was decided. He justified his actions based on the belief that the photographs were inappropriate and detrimental to the school's reputation, as well as their potential to disrupt school activities. Principal Couch referenced two recent incidents, including the tragic death of two students in a car accident and a spring 2009 situation involving inappropriate photos of students drinking alcohol, to explain his decision-making regarding T.V. and M.K. He aimed to start the 2009-2010 school year positively and anticipated potential disruptions from the photographs of the girls, leading him to conclude they violated the Student Handbook. Consequently, he suspended T.V. and M.K. from extracurricular activities for one year for bringing discredit to themselves and the school, as per the school policy. The policy stipulates that students may face removal from activities for behavior that dishonors themselves or the school. The girls were informed they could reduce their punishment by visiting a counselor and apologizing to the Athletic Board. After completing these requirements by August 13, 2009, their punishments were moderated, resulting in T.V. missing six volleyball games and M.K. missing five games and a show choir performance. In analyzing the case, it was noted that summary judgment is appropriate if no genuine dispute exists regarding material facts and the movant is entitled to judgment as a matter of law. Although facts are construed favorably for the non-moving party, they must provide evidence to support their claims; mere conclusory allegations are inadequate. The court directed the parties to address whether the photographs constituted First Amendment-protected expression and whether the punishment was based on the depicted conduct or the act of posting the images online. Both during oral arguments and in subsequent memoranda, it was asserted that T.V. and M.K. were penalized for both their behavior and for posting the images. Defendants argue that the suspension of students was justified due to the determination that their photographs were inappropriate and discredited the school. Counsel for Smith-Green contends that the school could have imposed the same punishment based solely on the students' conduct, even if the photographs were not posted online. Smith-Green maintains that the activities in the photos are separate from their publication, and this conduct violates the extracurricular code. The parties dispute whether the students' conduct is protected by the First Amendment. T.V. and M.K. assert that the conduct meets the intent-plus-perception test for expressive conduct, referencing Supreme Court precedents that recognize certain forms of conduct as entitled to First Amendment protection. The school district does not engage with the question of whether the conduct itself is protected, instead focusing on the photographs and claiming plaintiffs are improperly invoking First Amendment protections. However, this mischaracterization overlooks the application of the Texas v. Johnson standard, suggesting the school has waived this argument. T.V. and M.K. present a compelling case, indicating that while their conduct may lack serious intent, it was humorous and meant for entertainment, which is also protected under the First Amendment. The use of juvenile props and humor does not negate the expressive nature of their actions, and the First Amendment safeguards entertainment alongside news. The First Amendment safeguards various forms of expression, including entertainment and humorous works. Examples such as love songs or comedic scripts are protected under this amendment. The conduct of the young girls, which involved staging a sexual tableau to elicit humor among their peers, embodies expressive activity intended for entertainment. The Supreme Court has established that a clearly articulated message is not necessary for constitutional protection. The staged nature of the girls' actions indicates a purposeful expression of crude humor, aligning with First Amendment protections similar to those recognized in IOTA XI Chapter of Sigma Chi Fraternity v. George Mason University, where a fraternity skit was deemed inherently expressive despite its crudeness. The analysis extends to whether the photographs taken and shared online also fall under free speech protections. The act of photographing and disseminating the staged event further communicates the intended expression. First Amendment protection encompasses various mediums beyond spoken or written words, including visual arts. Even controversial artistic expressions, such as erotic images, receive considerable protection. The case of State v. Chepilko, cited by Smith-Green School Corporation to support its stance, does not alter this interpretation, as it involved a different context concerning the sale of photographs. Overall, the actions of the girls and the subsequent sharing of their images are protected under the First Amendment. A municipal violation charge for hawking without a permit was challenged on First Amendment grounds, asserting the protection of photographic operations. The New Jersey Supreme Court differentiated this case from commercial activity, determining that the primary intent of the photographer was profit-driven, thus limiting First Amendment protections. In contrast, the photographs in the current case lacked a commercial purpose, qualifying them as protected expression, supported by the intent to preserve created scenes for viewing. Various cases affirm that visual art forms receive full First Amendment protection. The act of posting images online constituted a public display, reflecting the intention to communicate the inherent expression of the subjects. This expressive behavior, particularly within academic contexts, is recognized as constitutionally protected speech. The Supreme Court has affirmed that First Amendment protections extend to internet communications. The analysis posits that whether the punishment of the individuals involved relates to the acts depicted, the creation of the images, or their online posting, all qualify as speech under the First Amendment. However, the defendants argued that the photographs could be classified as obscenity or child pornography, which are not protected. During a hearing, the defendants' counsel acknowledged that obscenity and child pornography laws do not apply in this context. The discussion referenced the three-part obscenity test established in Miller v. California, particularly focusing on the definition of 'sexual conduct' as per Indiana law concerning child exploitation and pornography. Sexual conduct is defined to include sexual intercourse, deviate sexual conduct, the exhibition of genitals for sexual arousal, sadomasochistic abuse, sexual conduct involving animals, and any inappropriate touching involving children. The defendants acknowledged that only 'deviate sexual conduct' might apply to certain photographs in question. Deviate sexual conduct is specifically defined as involving a sex organ and the mouth or anus of another person or penetration of a sex organ or anus by an object. However, it was concluded that none of the photographs meet this definition, as they do not depict the required anatomical interactions or penetration. Consequently, the photographs do not qualify as obscenity under the Miller test or as child pornography under relevant state and federal laws. Indiana's child pornography statutes require images to depict 'sexual conduct by a child,' using the same definition that was previously rejected. The defendants misinterpreted deposition testimony from the minors involved, incorrectly asserting they admitted to depicting oral and anal sexual acts, which does not align with the statutory definitions. The federal definition of 'sexually explicit conduct' includes actual or simulated sexual acts, but the photographs in question, featuring only candy and toys, do not create a realistic impression of such acts. The analysis concludes that the photographs cannot be classified as obscenity or child pornography, affirming that the students' First Amendment rights are not compromised by these claims. The legal analysis examines the application of free speech standards following the rejection of arguments by Smith-Green and Couch regarding the First Amendment protection of certain photographs. Citing *Bethel School District No. 103 v. Fraser*, the defendants argue that the photographs, deemed lewd and vulgar, lack First Amendment protection as they could undermine the school’s educational mission. However, the context differs significantly from *Fraser*, where the speech occurred in a school setting; the photographs were taken privately and shared online without direct involvement from the students in bringing them to school. The ruling emphasizes that the *Fraser* precedent cannot broadly apply to off-campus speech, as confirmed by *J.S. v. Blue Mountain School District*. The analysis transitions to *Tinker v. Des Moines Independent Community School District*, highlighting that schools can only restrict student speech if it materially disrupts school operations. The Court found no evidence of disruption from the students’ peaceful expression, which led to the conclusion that their suspension violated their First Amendment rights. This establishes a clear distinction between on-campus and off-campus speech protections, reinforcing that off-campus expression, even if deemed inappropriate, cannot be punished by school officials without evidence of substantial disruption. Smith-Green and Couch contend that students lack a constitutional right to engage in extracurricular activities, thus arguing that the discipline imposed on M.K. and T.V. does not necessitate evidence of 'substantial disruption.' However, Tinker v. Des Moines Independent Community School District establishes that students' rights extend beyond the classroom, allowing expression in common areas like cafeterias and playing fields, provided it does not materially disrupt school operations or infringe on others' rights. The constitutional issue pertains to freedom of expression rather than participation in extracurriculars. Although the absence of a constitutional right to partake in such activities may relate to other claims (e.g., Due Process, Equal Protection), it does not affect freedom of expression claims. Consequently, students cannot be penalized with exclusion from extracurriculars for non-disruptive speech. Citing relevant case law, including Pinard v. Clatskanie School District and Doninger v. Niehoff, the document emphasizes that school officials are not shielded from First Amendment scrutiny regarding disciplinary actions affecting extracurricular participation. Defendants fail to reference any case ruling that exclusion from extracurriculars does not implicate the First Amendment or that the Tinker standard is inapplicable in such contexts. The case Lowery v. Euverard, noted by the defendants, confirms that Tinker governs, asserting that speech can be regulated if it materially disrupts school discipline. The Lowery court applied the 'substantial disruption' standard, indicating that the context of athletic teams can alter the interpretation of what constitutes disruption compared to a classroom environment. The Supreme Court has not explicitly determined if the Tinker standard applies to off-campus expressive conduct not associated with school activities, noting uncertainty regarding the application of school speech precedents. However, most federal courts have treated off-campus speech under the Tinker standard. A recent Third Circuit case involved a majority opinion that assumed Tinker applied to a student's off-campus creation of an abusive parody profile but concluded that the school officials violated the student's free speech rights regardless. Five judges concurred, asserting Tinker does not apply to off-campus speech and that the First Amendment protects students' off-campus speech like that of citizens in the broader community. In the current case, it is assumed that Tinker applies, leading to the conclusion that the school officials violated the First Amendment rights of plaintiffs T.V. and M.K. The relevant First Amendment standard is whether Principal Couch reasonably believed that the posted pictures materially disrupted school operations. It is noted that actual disruption is not required for disciplinary actions to be constitutionally valid; school officials can act based on a significant fear of disruption, not merely on speculative apprehension. The school defendants argue that Principal Couch's actions were based on reports of divisiveness caused by the photographs among students, particularly within extracurricular teams, rather than solely on potential future disruption. Superintendent Darnell testified that he informed Principal Couch about a disruption caused by certain pictures, directing him to address the issue in accordance with school code. However, Principal Couch contradicted this by stating he was not aware of any disruption at the time he decided to suspend two students for violating school policy. This inconsistency raises questions about whether actual disruption justified the disciplinary actions against M.K. and T.V. The legal standard set by the Tinker case emphasizes that mere fear of disturbance cannot justify limiting freedom of expression. For school officials to restrict expression, they must demonstrate that the conduct would materially and substantially interfere with school operations. The evidence of disruption in this case is minimal, as routine disagreements among students do not meet the Tinker standard for substantial disruption. Comparisons are made to the J.C. v. Beverly Hills Unified School District case, where the court found that minor disturbances stemming from a student's online video did not constitute significant disruption. The excerpt ultimately suggests that the defendants have not adequately demonstrated that any disruption from the students' actions was substantial enough to warrant the imposed disciplinary measures. The controversy led to numerous phone calls, emails, disrupted schedules, and upset students. A group of students gathered outside the Principal's office, prompting Doninger and three others to meet with school officials to address the issue. Unlike the situation in Doninger, where actual disruptions occurred, school officials here cannot demonstrate any significant disruption. Their response was based solely on two parents' complaints, which were not corroborated by students or coaches. The situation generated discussions outside classrooms but did not interfere with or disrupt school activities, aligning with the precedent set in Tinker. The court emphasizes that mere complaints or minor conflicts among students do not meet the "substantial disruption" standard established by the Supreme Court. The defendants assert a forecast of disruption due to prior incidents involving online photographs, but they provide little supporting evidence. Principal Couch's concerns about potential disruption following recent tragic events at the school are noted, but the limited evidence does not substantiate a legal determination of reasonable forecasting of substantial disruption. The court concluded that the school corporation's reliance on certain evidence was insufficient to demonstrate a substantial disruption under the Tinker test. It determined that no reasonable jury could find that the internet photos of T.V. and M.K. caused or would foreseeably cause substantial disruption to school activities. The court emphasized that the First Amendment protects even foolish speech, distinguishing it from more significant expressions, and cautioned against allowing school authorities to regulate students' behavior beyond school-sponsored activities. Consequently, the plaintiffs' motion for partial summary judgment was granted, while the defendants' motion was denied, affirming that T.V. and M.K. were punished in violation of their First Amendment rights. Regarding Eleventh Amendment immunity, the Smith-Green School Corporation claimed protection from damages under § 1983, asserting that changes in Indiana’s funding formula rendered it an arm of the state. However, precedents indicate that local public school districts typically do not enjoy such immunity due to their local funding control. The court referenced relevant case law, particularly Mount Healthy City School District v. Doyle, which established that local school boards function similarly to municipalities and are not entitled to assert Eleventh Amendment immunity. The court noted the significance of how a money judgment impacts the state treasury and acknowledged the ongoing appeal of a related case, Amber Parker v. Franklin County Community School Corporation, which could influence the ruling on immunity. Motions for summary judgment are denied without prejudice, allowing for renewal after the Court of Appeals' ruling. Principal Couch raises qualified immunity as a defense against damages, which protects public officials from civil liability if their actions could reasonably be seen as consistent with the rights allegedly violated. The defense accommodates "mistaken judgments," safeguarding all except those who are clearly incompetent or knowingly violate the law. To overcome qualified immunity, plaintiffs must demonstrate through analogous case law that the conduct was unlawful or that the violation was evident enough for a reasonable state actor to recognize it as unconstitutional. The Supreme Court outlines two inquiries for qualified immunity: (1) whether the facts, viewed favorably for the plaintiff, indicate a constitutional violation, and (2) whether that right was clearly established at the time of the alleged misconduct. Courts have discretion in the order of these inquiries. The first is a legal question, while the second requires broader analysis. Many courts have found that school administrators typically possess qualified immunity, often due to unclear constitutional rights at the time. In similar cases, such as J.C. v. Beverly Hills Unified School District, courts have found constitutional violations but still ruled in favor of qualified immunity due to the lack of clarity surrounding the regulation of off-campus speech, especially concerning online expressions. This ambiguity persists, with the Supreme Court recently acknowledging uncertainty regarding the application of student speech precedents, particularly in the context of the internet. In J.S. 650 F.3d 915, the Third Circuit addressed a school's punishment of a student for an out-of-school MySpace profile parodying the principal, yielding three distinct judicial opinions. The majority opinion did not definitively apply the Tinker standard but concluded that there was no substantial disruption to justify the school's disciplinary action. A concurring opinion argued for summary judgment in favor of the student, asserting that the First Amendment protections for off-campus speech should not be limited by Tinker. Conversely, a dissenting opinion accepted Tinker's application but debated whether the profile's content could reasonably predict substantial disruption. All judges agreed on the principal's entitlement to qualified immunity, noting that Principal Couch's actions could be seen as consistent with the evolving legal standards concerning student speech originating off-campus. T.V. and M.K. contended that the school’s policy was unconstitutionally vague and overbroad, as it allowed discipline based on the subjective determination that their actions discredited themselves or the school. They cited a precedent from the Sixth Circuit, stating that policies granting public officials unbridled discretion violate the First Amendment, as they may lead to ambiguous and subjective enforcement. The plaintiffs referenced Flaherty v. Keystone Oaks School District, where undefined terms like "offend" and "inappropriate" rendered the policy vague and overly broad, allowing for discipline that infringed on protected speech occurring outside school. Overbreadth can inhibit free expression, affecting not just the individuals involved but also third parties who are not before the court. For a policy to be deemed unconstitutional due to overbreadth, the overreach must be substantial relative to the statute's legitimate scope, as established in Broadrick v. Oklahoma. Invalidating a rule cannot occur simply because it may allow for a few impermissible applications; it must be demonstrated that the language in question encompasses a significant amount of constitutionally protected conduct. The Third Circuit has indicated that while schools can regulate a wider range of speech compared to the general public, the legitimate scope of school discipline regarding out-of-school speech is limited to that which poses a real risk of substantial disruption to the school environment. Applying these principles, out-of-school conduct that brings discredit to a student or school could encompass numerous actions that lack First Amendment protection, including various forms of criminal activity. However, it could also include speech protected by the First Amendment, such as political activism or dissent on controversial topics. Much of this speech would not meet the substantial disruption threshold articulated in Tinker, thus rendering the challenged language overbroad as it encompasses significant protected conduct. Before concluding that a statute is facially overbroad, the possibility of a reasonable limiting interpretation must be examined. In this instance, no such interpretation has been suggested, and the language appears open to numerous interpretations, making it impossible to confine it within constitutional limits without extensive case-by-case adjudication. This uncertainty poses a chilling effect on protected speech, which cannot be tolerated. The discussion also indicates a separate concern related to vagueness in the language used. A statute may be deemed void for vagueness if it fails to provide a person of ordinary intelligence with a clear understanding of the prohibited conduct or if it permits arbitrary enforcement. This principle is illustrated in Baggett, where a loyalty oath for state employees was ruled unconstitutionally vague due to its broad interpretation of inconsistent activities and lack of clear standards. Vagueness can also arise from an unrestricted delegation of power, as seen in Leonardson v. City of East Lansing, where the statute allowed enforcing officers to define its terms, leading to potential arbitrary enforcement. In educational settings, the vagueness standard is somewhat relaxed to accommodate the need for schools to address a wide range of disruptive behaviors. However, school policies must still provide adequate warning of unlawful conduct and not grant excessive discretion to school officials, as established in Layshock v. Hermitage School District. The definitions of terms like "discredit" and "dishonor" are inherently subjective, leading to a lack of consensus regarding their application, which undermines their use as disciplinary standards. This subjectivity has previously resulted in disciplinary policies being found overbroad, as in Killion v. Franklin Regional School District. Furthermore, the Seventh Circuit has ruled similar vague language in police department regulations unconstitutional, noting that terms like “serious discredit” lack objective content, making them subjectively applied and failing constitutional standards. This reasoning is relevant in the context of the Student Handbook’s prohibition based on subjective notions of “discredit” and “dishonor.” The provision in the Student Handbook that allows for discipline based on out-of-school conduct that brings "discredit or dishonor" is deemed unconstitutionally vague and overbroad, warranting an injunction against its enforcement. Two motions to strike were filed; plaintiffs sought to strike certain statements from an affidavit by the school corporation’s business manager, which were characterized as opinions about state funding's impact on local schools. These opinions, presented under Fed. R. Evid. 701, are admissible as lay witness testimony. The issue of Eleventh Amendment immunity is deferred pending a Seventh Circuit ruling on a related appeal. Defendants also moved to strike a citation to an online newspaper but the objection is deemed inappropriate for a separate motion. The motions to strike do not significantly affect the substantive motions at hand and are denied. The court concludes that the punishments imposed on students T.V. and M.K. for their out-of-school expression violated their First Amendment rights. Principal Couch is granted qualified immunity due to the unclear nature of the students' rights at the time of his decision. The court acknowledges a desire for the students' speech to be of greater importance, yet emphasizes the gravity of unconstitutional punishment. The motions to strike are denied, and the plaintiffs' motion for partial summary judgment regarding their First Amendment claim is granted. Plaintiffs' challenge to the Churubusco High School Student Handbook provision that permits discipline for "out of school conduct that brings discredit or dishonor upon [the student] or [the] school" is upheld as unconstitutional due to vagueness and overbreadth. Defendant Smith-Green's claim of Eleventh Amendment immunity against damages is denied without prejudice, with the option to renew following the Seventh Circuit's decision in Amber Parker v. Franklin County Community School Corporation. Conversely, Defendant Couch's assertion of qualified immunity is granted. A status conference will be scheduled by separate order. The document clarifies that references to the record cite the filed page number rather than internal numbering, specifically regarding deposition excerpts. It is noted that the clarity of the record is lacking concerning which photos were presented to school officials; however, it is assumed that all submitted photos were considered, except for a few deemed irrelevant due to timing. The excerpt also references several legal cases for due process, privileges and immunities, and equal protection analyses. Additionally, it is mentioned that the plaintiff's daughter was not a member of any volleyball teams at the relevant time, implying potential irrelevance of her involvement in the case.