ITHACA, NY -- Almost five years after their original First Amendment
lawsuit was filed, former members of the Ithaca High School student newspaper
are continuing an appeals process in the 2nd U.S. Circuit Court of
Appeals in New York.
The appeal is being brought in The Tattler's suit against the
Ithaca City School District to reexamine several claims originally dismissed by
the 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 more
than 100-year existence.
"The story behind the story was that a new principal had just come
on board the preceding fall and the students had been merciless in criticizing
this principal about a number of issues," he said.
Former Tattler Editor-in-Chief Rob Ochshorn said Principal Joe
Wilson's "law and order" approach to discipline was new to
Ithaca High School.
The new guidelines prevented the paper from publishing a cartoon in its
2005 Valentines Day issue, Schlather said. The cartoon, satirizing the way sex
education was taught, depicted a woman at a chalkboard, on which stick figures
in sexual positions were drawn. Then-adviser Stephanie Vinch removed the
cartoon, so the students ran the issue with a hole where it had been.
Vinch later resigned her position, leaving the staff without an adviser and
unable to publish as The Tattler under the new restrictions. As it had
done in the past, Schlather said, the paper began to publish
"underground," calling itself simply "The March
Issue."
In "The March Issue," a story about the cartoon censorship was
published, Schlather said, alongside the cartoon. When this was printed, the
students were told they could not distribute it on campus.
These circumstances were the catalyst for the three claims originally
dismissed by the judge, which are now being appealed. The other claims refer to
the guidelines imposed on the paper. The judge allowed the students' First
Amendment challenge to the scope of the guidelines to proceed ahead to a
trial.
The court ruled that even the independent version of the paper was subject
to the guidelines imposed by the school, which also meant the paper was not
protected under the standard established in the 1969 Supreme Court case
Tinker v. Des Moines, but fell instead under the 1988 precedent of
Hazelwood v. Kuhlmeier, Schlather said. This means that the paper was
subject 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 that
protection, because The Tattler is about as independent as it
comes," Schlather said.
He added that while the court upheld the existence of guidelines for the
Tattler, it also said the conditions of those imposed in January 2005 may
have 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 three
dismissed claims is in progress.
The broader issue, Schlather said, is still whether the Tattler is
a Tinker or a Hazelwood paper.
"If ever there is a newspaper that should enjoy whatever protections
are 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 the
appeal.
Ithaca City School District Superintendent Judy Pastel did not return a
call for comment by press time.
By Katie Maloney, SPLC staff writer
