The girls, who were 15- and 16-year-old at the time, posted pictures of themselves on Facebook, Photobucket, and MySpace, simulating oral sex with phallic-shaped lollipops at a slumber party held by one of the teens during their summer break from Churubusco High School.
The sexually suggestive photographs were accessible online to people who were designated as "friends" on the girls social media web-pages. A few days after they were posted on the Internet a parent brought copies of the pictures to Steve Darnell, the Superintendent of Smith-Green Community School Corporation.
The parent claimed the photographs were causing disruption within the school and "divisiveness on the high school girl's volleyball team, whose members had split into two camps of those who favored what was going on and those who were against the pictures being made public," according to the lawsuit [pdf
The facts of the civil case, which are not disputed by either party, state the girls known as M.K. and T.V., purchased "phallic-shaped rainbow colored lollipops prior to hosting a sleepover. The girls took a number of photographs of themselves sucking on the lollipops. In one, three girls are pictured and M.K. added the caption "Wanna suck on my c**k." In another photograph, a fully-clothed M.K. is sucking on one lollipop while another lollipop is positioned between her legs and a fully-clothed T.V. is pretending to suck on it."
On a subsequent night the girls took more pictures of themselves pretending to kiss each other, wearing lingerie, talking on the phone with their legs in the air, simulating sex with a trident toy, and a photograph of T.V. positioned as if she was engaging in anal sex with another girl.
Neither girl ever brought the images to school or used school computers to access their personal accounts. They claimed in their depositions "they were just joking around" and "they were shared on the Internet because the girls thought what they had done was funny and wanted to share with [their] friends how funny it was.” Nothing in the photographs identified the girls as students at Churubusco High School.
After reviewing the pictures and speaking with all parties involved School Principal Austin Couch suspended the girls from participation in extra-curricular activities and co-curricular activities for the remainder of the school year. Both girls participated in girls volleyball and one was a member of the school's show choir.
The girls were given an option to attend a series of counseling sessions and then appear before the Athletic Committee to have their punishment period reduced, which they agreed to complete.
After the suspension was lifted the teens, with the assistance of the ACLU and their parents, filed a lawsuit claiming their First Amendment rights were violated by the school when they were suspended from participation in school activities based on their behaviour outside of school and their right of freedom of speech and expression that didn't involve the high school.
The school claims they violated the 'Extra-curricular and Athletic Code of Conduct' from the student handbook, which maintains that "students of Churubusco High School represent themselves as well as the school year-round, including breaks . Therefore, those students who choose to participate in extra-curricular activities are expected to demonstrate good conduct at school and outside of school."
The judge ruled in favor of the teenagers and said
, "The case poses timely questions about the limits school officials can place on out of school speech by students in the information age where Twitter, Facebook, MySpace, texts, and the like rule the day."
He concluded that:
" A Student Handbook provision that authorizes discipline for out of school conduct that brings “dishonor” or “discredit” upon the school or the student is so vague and over-broad as to violate the Constitution. I wish the case involved more important and worthwhile speech on the part of the students, but then of course a school’s well-intentioned but unconstitutional punishment of that speech would be all the more regrettable."
School district attorney W. Erik Weber said "the district was disappointed but hadn’t decided whether it would appeal," reports Associated Press