Suspension Over Sexy Slumber Party Photos Leads to ACLU Lawsuit

Nov. 2, 2009— -- Two Indiana teenagers whose sexually suggestive slumber party pictures made their way into the hands of the high school principal are fighting back against what they say is an unfair suspension from athletics for activities that took place off school grounds.

The American Civil Liberties Union of Indiana has filed suit on behalf of the two sophomore girls. The suit claims the Smith-Green Community School Corporation and Churubusco High School Principal Austin Couch violated the girls' First Amendment rights when they suspended them from extra-curricular activities and forced them to attend counseling sessions over a few racy photos that were posted on their MySpace pages.

"I don't think this is a unique problem of trying to define that line as to where the school stops and where student expression begins," Indiana ACLU Legal Director Ken Falk, also the girls' attorney, told ABCNews.com today.

According to the lawsuit, filed Oct. 23 in U.S. District Court, the teens -- identified in court papers as T.V. and M.K. -- had attended a sleepover with friends who were also students at Churubusco High School in the summer months before school started.

"During the sleepover, the girls took pictures of themselves pretending to kiss or lick a large multi-colored novelty lollipop-shaped phallus that they had purchased, as well as pictures of themselves in lingerie with dollar bills stuck in their clothes as well as other pictures," the lawsuit stated.

"They intended this to be humorous and all the participants considered it to be so," it continued.

The lawsuit claims that the girls, who in no way identified themselves in the pictures as students of Churubusco High School, then posted the pictures on their MySpace pages to share with their friends.

"There's a lot of questions that can be asked about what sophomores do. That's why there's the term 'sophomoric,'" Falk said. But he added that the girls' actions, which the lawsuit referred to as "expressive activity," were "irrelevant" to school functions.

An uknown person was able to access the pictures, copy them and hand them over to school personnel. They were eventually given to Couch, who suspended both T.V. and M.K. from all extra-curricular activities for the school year, including athletics, which both of the girls participated in.

The lawsuit claims that both teens' parents spoke with the principal and were told that he could cut down the punishment to suspend them from just 25 percent of the girls' activities only if they went to three counseling sessions and individually apologize to the school's athletic board, which is comprised of the school's varsity head coaches.

"That is simply beyond the power of the school to regulate," Falk said.

Darnell told ABCNews.com today that he's been advised by the school's legal counsel not to comment beyond a one-page statement issued today.

In the statement, Darnell said the girls' pictures "were highly inappropriate in content" and that they "caused a disruption within our athletic teams at the beginning of this year's sessions."

"We stand behind decisions made by Mr. Austin Couch, the high school principal, in this situation," Darnell's statement said. "When students choose to violate extra-curricular expectations, there are consequences."

"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."

District Policy Requires 'Good Order' From Students Even Outside School

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.