Whitley County Patriots

From the Indiana Law Blog:

Updating this ILB entry from Oct. 31, 2009, relating to “two girls, both sophomore fall-sport athletes, [who] were suspended from extracurricular activities for the entire school year because of sexually suggestive photographs posted on their pages on MySpace, a social networking site on the Internet.” More from the Oct. 28, 2009 story in the Fort Wayne Journal Gazette:

The lawsuit names the district and Churubusco High School Principal Austin Couch, both individually and in his official capacity, and alleges that Couch and the district violated the girls’ First Amendment rights by how the situation was handled.The ACLU seeks to have the case handled as a class-action on behalf of all students participating in, or who may participate, in extracurricular activities at Smith-Green Community Schools, according to court documents.

Today Judge Philip P. Simon, ND Ind., issued a 10-page order denying class certification. Here are some quotes:

T.V. and M.K. are sophomores at Churubusco High School in Whitley County, Indiana, and Austin Couch is the principal of the school. T.V. and M.K., by their parents as next friends, bring this case pursuant to 42 U.S.C. §1983, challenging the constitutionality of a policy of Churubusco High School, administered by Mr. Couch as the principal, which they contend violates their First Amendment rights. In the motion presently before the court, T.V. and M.K. seek the certification of a class composed of students subject to the allegedly unconstitutional policy. But because the typicality and commonality requirements of Rule 23(a) have not been met, the motion for class certification will be denied. * * *Here, for the reasons noted above, I conclude that class certification is not appropriate for failure of the requirements of Rule 23(a). I note, in addition, however, that were the Seventh Circuit to resolve its apparent internal historical difference of opinion on the “need” criterion in favor of what is by now the majority view, that consideration would also weigh against class certification here. A determination in favor of T.V. and M.K., that school authorities could not constitutionally punish out-of-school expressive conduct on grounds of disrepute to the school, would have school-wide impact going forward, without the need for a class-action dimension to this litigation. [emphasis by ILB]

Read this from the source HERE.