N.Y. Judge ends 9-year legal battle in high school newspaper censorship suit





NEW YORK — Ending a nine-year legal battle, a federal judge dismissed a suit last week that aimed to declare the Ithaca City School District’s 2005 publications policy unconstitutional and to prevent the district from reimplementing it in the future.

Norman Mordue, a senior district judge for the U.S. District Court for the Northern District of New York, dismissed the case Oct. 23 because the student plaintiffs had graduated and the district no longer used the 2005 guidelines, according to the ruling.

The judge’s dismissal ends a process that Robert Ochshorn and seven other 2005 Ithaca High School graduates who worked at the student newspaper, The Tattler, began in 2005.

Raymond Schlather, the former editors’ attorney, said the court believes the school district won’t implement the 2005 guidelines in the future.

“It would have been better for everybody to have a judicial declaration that the old guidelines were in fact constitutionally infirm and then a permanent injunction against those guidelines and anything close to it,” Schlather said.

The Ithaca City School District’s attorney, Gregg Johnson, said the dismissal is a “procedural resolution of two claims that, at this point, are moot and meaningless.”

In January 2005, Ithaca High School’s then-principal Joe Wilson created new guidelines for the student newspaper, The Tattler, which required the newspaper adviser to read, edit and approve all articles before publication. Without the adviser’s approval, the paper could not go to the printer.

In February 2005, the newspaper staff planned to publish an article called “How is sex being taught in our health classes?” with a satirical cartoon depicting a teacher in front of a chalkboard with eight stick figures in sexual positions. The adviser pulled the cartoon because she said it violated the guidelines’ standard for obscenity. The issue ran with a blank space where the cartoon was.

Later that month, the adviser resigned.

Because they were unable to publish The Tattler without an adviser, the students created an independent newspaper, which they worked on outside of school and without district money, and included the spiked cartoon and an article explaining the controversy. However, school administrators then prohibited the students from distributing the newspaper — called The March Issue — at school.

Ochshorn and seven other students filed suit against the school, arguing the district violated their First Amendment rights and challenged the publication guidelines and the district’s decision to censor the cartoon in June 2005.

A federal judge upheld the district’s restriction of the cartoon and the distribution of The March Issue in a March 2009 ruling. However, the judge did not specify whether the district’s publication guidelines were constitutional.

Schlather said the Ithaca City School District revised the publication guidelines in 2009 so that the adviser has a more active role in the oversight of the publication’s content and eliminating some prior restraint restrictions in the 2005 version.

Ithaca City School District Superintendent Luvelle Brown did not respond to phone and email messages for comment.

The students appealed the decision and in May 2011 the Second Circuit Court of Appeals called the cartoon “unquestionably lewd” and ruled the district was justified in pulling it. The court classified The Tattler as a “limited public forum,” affirming the district’s ability to censor under the Hazelwood standard, a 1988 case in which the Supreme Court held that schools may censor non-forum, curricular publications for legitimate educational reasons.

The students asked the U.S. Supreme Court to hear the case, but the court declined to hear it in October 2011.

The Oct. 23 ruling dispenses with the students’ only remaining claims, involving the constitutionality of the 2005 publication guidelines, which gave the faculty adviser complete control over the story assignment and editing process.

Schlather said the overall case has limited the constitutional freedoms of The Tattler, “which has been a real blow, in our view, to high school journalism.”

“This truly is a community newspaper,” Schlather said, “and I think it deserves the constitutional respect that all community newspapers enjoy, regardless of the age of the editors.”

SPLC staff writer Anna Schiffbauer can be reached by email or at (703) 807-1904 ext. 127.


Ithica City School District, Ithica High School, New York, news, recent-news, The March Issue, The Tattler