"As a district, we support our student behavior policies for expected behavior in and out of season," the statement continued. "Our administration at the high school makes every effort to assure fairness exists for all of our students."
T.V.'s father appealed the decision to Smith-Green Superintendent Steve Darnell, according to the lawsuit, but was told that Couch had "absolute discretion and authority."
T.V. and M.K. eventually attended their three counseling sessions so they could participate in the remainder of the fall athletic season and the reports were turned over to the principal. They also appeared before the all-male athletic board and apologized for their behavior.
The ALCU charges that not only was the forced counseling humiliating, but the girls were embarrased at having to appear in front of the coaches to apologize for the pictures "which had no impact on the school whatsoever."
Catherine Crump, staff attorney for the national ACLU, said the case in Indiana is one of several student First Amendment cases being litigated.
"This is something that's happening more and more," she said.
Private moments, either at the mall or in students' houses used to stay there, she said. But now much is being broadcast on the Internet and it's almost inevitable that school administrators will see some of it.
She pointed to a 2006 complaint in Pennsylvania in which then-17-year-old Justin Layshock sued the Hermitage School District and Hickory High School Principal Eric Trosch saying he was unfairly suspended for creating a parody Web site that mocked Trosch.
According to the complaint, Layshock was punished for his MySpace page spoof that poked fun at the principal's girth among other things. The district court ruled in favor of Layshock, saying his off-campus actions did not disrupt school activity, but the verdict is currently being appealed.
According to the lawsuit in Indiana, the Smith-Green district uses a code of conduct policy for extra-curricular and athletic activities that borrows in part from the Indiana High School Athletic Association.
It says the the principal "may exclude any student-athlete from representing Churubusco High School if his/her conduct in or out of school reflects discredit upon Churubuscho High School or the IHSAA or creates a disruptive influence on the discipline, good order, moral or educational environment at Churubusco High School."
The ACLU is also attempting to get the suit classified as "class action" because the school policy could affect "all present and future students" of Churubusco.
The suit is asking that the school district no longer be allowed to punish students for non-disruptive conduct outside school, that all references to the incident are expunged from T.V. and M.K.'s records and that both girls be awarded costs and damages.