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Court Upholds Students' Free Speech Rights in Sleepover Pics Case

By Robyn Hagan Cain | Last updated on

High school slumber parties, despite what Judge Philip Simon believes, are often tame affairs marked by pizza, Twilight, and Bravo's Real Housewives franchise. The racier ones might include a Sex and the City marathon on DVD rather than the TV-edited TBS syndication. On the rare occasion that a slumber party graduates from PG to PG-13, sleepover snapshots can turn a 6-game suspension from a high school volleyball schedule into an ACLU lawsuit on students' free speech rights in federal court.

Churubusco High School Principal Austin Couch revoked volleyball and cheerleading privileges from two sophomore girls after the girls posted suggestive photos from a summer sleepover on Facebook, MySpace, and Photo Bucket. Though access to the photos was limited to "friends" and password holders, a fellow student's parent printed the sleepover pics and brought them to the superintendant's attention.

The parent, (who may have been overly-concerned about volleyball team dynamics considering that her daughter was not on the volleyball team), complained that the sleepover pictures;were creating divisiveness on the volleyball team between girls who approved of the photos and those who didn't. The superintendent 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."

Following the code apparently included suspension from extracurricular activities to punish the girls for acting "in a manner in school or out of school that brings discredit or dishonor upon yourself or your school." According to the opinion, posing with "phallic-shaped rainbow-colored lollipops" brought dishonor upon the school.

After noting that no good comes out of high school slumber parties and lamenting the lack of high-minded discourse in the case, Judge Simon ruled for the students, finding that volleyball revocation violated the students' free speech rights, and the school's prohibition against out of school conduct that brings discredit or dishonor upon a student or the school was unconstitutionally vague and overbroad.

The school district may still appeal the ruling in the ACLU lawsuit, pending Judge Simon's decision on whether the school district has immunity from damages. (Judge Simon has deferred a decision on damages until the appeals court decides whether Indiana school districts are considered public entities and thus immune from damages under the Constitution.) In other words, we could get an appeal to the Seventh Circuit in this case.

To be honest, we hope that the school district appeals; Judge Simon's opinion was amusing, but an opinion from Judge Frank Eastbrook regarding lollipops, sleepovers and the First Amendment would be even better than winning the lottery on tax day.

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