NEW YORK — Almost five years after their original First Amendmentlawsuit was filed, former members of the Ithaca High School student newspaperare continuing an appeals process in the 2nd U.S. Circuit Court ofAppeals in New York.
The appeal is being brought in The Tattler’s suit against theIthaca City School District to reexamine several claims originally dismissed bythe judge, said Ray Schlather, of Schlather, Stumbar, Parks & Salk of Ithaca,New York, the attorney representing the students.
In early 2005, the school district imposed what Schlather called”draconian” guidelines on the paper for the first time in its morethan 100-year existence.
“The story behind the story was that a new principal had just comeon board the preceding fall and the students had been merciless in criticizingthis principal about a number of issues,” he said.
Former Tattler Editor-in-Chief Rob Ochshorn said Principal JoeWilson’s “law and order” approach to discipline was new toIthaca High School.
The new guidelines prevented the paper from publishing a cartoon in its2005 Valentines Day issue, Schlather said. The cartoon, satirizing the way sexeducation was taught, depicted a woman at a chalkboard, on which stick figuresin sexual positions were drawn. Then-adviser Stephanie Vinch removed thecartoon, so the students ran the issue with a hole where it had been.
Vinch later resigned her position, leaving the staff without an adviser andunable to publish as The Tattler under the new restrictions. As it haddone in the past, Schlather said, the paper began to publish
“underground,” calling itself simply “The MarchIssue.”
In “The March Issue,” a story about the cartoon censorship waspublished, Schlather said, alongside the cartoon. When this was printed, thestudents were told they could not distribute it on campus.
These circumstances were the catalyst for the three claims originallydismissed by the judge, which are now being appealed. The other claims refer tothe guidelines imposed on the paper. The judge allowed the students’ FirstAmendment challenge to the scope of the guidelines to proceed ahead to atrial.
The court ruled that even the independent version of the paper was subjectto the guidelines imposed by the school, which also meant the paper was notprotected under the standard established in the 1969 Supreme Court caseTinker v. Des Moines, but fell instead under the 1988 precedent ofHazelwood v. Kuhlmeier, Schlather said. This means that the paper wassubject to the reduced First Amendment protection afforded to a”curricular” publication.
“If The Tattler does not enjoy the protection of Tinker v.Des Moines, then there is no public high school newspaper that enjoys thatprotection, because The Tattler is about as independent as itcomes,” Schlather said.
He added that while the court upheld the existence of guidelines for theTattler, it also said the conditions of those imposed in January 2005 mayhave been unconstitutional.
The claims regarding the guidelines are being held in abeyance for trial,which means they have been paused, while the appeal for the first threedismissed claims is in progress.
The broader issue, Schlather said, is still whether the Tattler isa Tinker or a Hazelwood paper.
“If ever there is a newspaper that should enjoy whatever protectionsare available under Tinker v. Des Moines it is The Tattler,”he said.
He added that the students have until May to file the briefs for theappeal.
Ithaca City School District Superintendent Judy Pastel did not return acall for comment by press time.
By Katie Maloney, SPLC staff writer