Can Schools Punish Students for Posting Racy Photos Online?

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Two Indiana girls — one 16, one 15 — took racy photos of themselves at a slumber party and posted them online. When their high school found out, it suspended the girls from participating in a certain amount of their extracurricular activities. Can the school legally do that?

A federal district court in Fort Wayne, Ind., recently ruled that it cannot — because the punishment violated the girls' First Amendment rights. The legal question of what rights students have to post provocative material on the Internet, and what rights schools have to restrict such postings, is still unsettled. But the Indiana decision is the second important ruling in recent months to strike a blow for students' online speech rights.

The two Indiana 10th-graders — whose names have not been released — engaged in a variety of crude activities at a slumber party in the summer of 2009. Among other things, they posed with toys in sexually suggestive ways and sucked on phallic-shaped lollipops.

It is hardly shocking that teenagers at a sleepover party would engage in raunchy behavior. Thanks to the Internet, however, activity that once remained behind closed bedroom doors can now be broadcast to a limited group of friends — or a worldwide audience.

One of the girls posted some of the photos on her MySpace and Facebook accounts, where they could be seen by people who had "friend" status. Some of the lollipop photos were posted on a photo-sharing website, where a password was necessary to see them.

The postings did not identify the girls as students of Churubusco High School, the public school they attended outside of Fort Wayne. Nor did the girls ever take the photographs on campus. But the photos came to the attention of a school parent, who complained to the local superintendent. The parent said the photos were causing divisiveness on the school's volleyball team, of which the two girls were both members, and that the team was breaking down into a camp that supported the photos and one that did not.

The principal decided that the girls had violated the school's athletic code, which prohibits students from engaging in conduct that "brings discredit or dishonor" on themselves or the school. To punish them, he imposed a partial suspension from volleyball.

The girls, backed by the American Civil Liberties Union of Indiana, sued, alleging that the suspensions violated their free-speech rights. The school stood its ground, and argued that the girls' provocative posing was not protected free expression.

The federal district court took a dim view of the girls' activities. It began its opinion by saying: "Not much good takes place at slumber parties for high school kids, and this case proves the point." It also acknowledged that the racy photographs at stake in the case were hardly the loftiest sort of communication.

In previous school-speech cases, students have fought for the right to wear black armbands to oppose the Vietnam War, or to publish exposés in school newspapers. The expression at issue here, the court said, was by comparison "juvenile and silly." Still, it was expression — and worthy of First Amendment protection.

Yet the fact that it was judged to be protected speech did not end the matter. In student-speech cases, courts have tried to balance students' rights against schools' need for discipline. The standard they apply, based on the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District (the case involving the black armbands) is that schools can only restrict student expression when that expression would "materially and substantially disrupt the work and discipline of the school."

The girls' racy photographs, the Indiana court rightly held, do not rise to the level of "substantial disruption." The "petty disagreements" on the volleyball team were "utterly routine," the court said, and not the sort of problem that justified infringing on student-speech rights.

The Indiana ruling follows a June decision from the Philadelphia-based U.S. Court of Appeals in J.S. v. Blue Mountain School District, which held that a student could not be disciplined for posting a crude parody of her middle-school principal on MySpace. In that case, the court said that even if the parody was offensive — it presented the principal as a bisexual named M-Hoe with a sexual addiction and a child who looked like a gorilla — there was no reason to believe it would cause substantial disruption.

Taken together, the back-to-back Indiana and Pennsylvania rulings suggest two things. First, with the rise of the Internet, students are posting a lot of "crass foolishness," as the Indiana court tartly put it. And second, that courts are correctly determining that, except in the most extraordinary cases, students have a constitutional right to do so.

Cohen, a former TIME writer and former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for, appears every Monday. You can continue the discussion on TIME's Facebook page and on Twitter at @TIME.