When Robert Ochshorn decided to file a lawsuit against hisformer school district, he never anticipated his involvement in the caselasting more than a couple of years.
But more than half a decade later, Ochshorn, the formereditor in chief of the Tattler — the studentnewspaper at Ithaca High School in Ithaca, N.Y. — remains at the center of alegal dispute that has captured the attention of much of the scholasticjournalism community.
For Ochshorn, that involvement still does not have a clearend in sight.
Along with seven other plaintiffs, Ochshorn has beenfighting the removal of a stick-figure cartoon from the newspaper that hadaccompanied an article addressing sex education.
The eight plaintiffs — each 2005 Ithaca High School alumniand former members of the Tattler’s editorial board— have also been pushing to overturn a student publications policy they feeloversteps the Constitution.
Recently, however, the students’ case took a major hit.
On May 18, the 2nd U.S. Circuit Court of Appeals came downwith a decision in R.O. v. Ithaca City School District thatstudent journalism advocates say is one of the most damaging rulings for freespeech in the nation’s high schools in decades.
“This case, along with emerging case law surroundingoff-campus speech through Facebook posts, will determine the future of a freepress on America’s high school campuses,” said Ken Paulson, president and CEOof the First Amendment Center. “At a time when almost no one is keeping an eyeon the world of public education, we can and should protect freedom of the pressat the high school level as fervently as we do at the professional level.”
Since the May ruling, free speech advocates have decried thecourt’s opinion as destructive to the ability of students to express themselvesfreely, without fear of administrative retribution.
At the same time, Ithaca City School District administratorsare applauding the decision as a positive, final remedy to an ongoing contentdispute.
But if students like Ochshorn are to have the last word, thecourt’s holding will be anything but final.
Along with their attorney, Raymond Schlather, the studentplaintiffs have filed a petition to have their case heard by the U.S. SupremeCourt.
“We’ll take this as far as it can go,” Ochshorn said. “Westill believe now as much as we did six years ago that not only were we in theright, but that this is a vitally important issue and case. We’re not givingup.”
The beginnings
The Tattler story begins in2004, the start of Ochshorn’s senior year of high school and tenure as editorin chief.
Having operated as an extracurricular publication relativelyfree from administrative oversight for more than 100 years, the Tattler experienced several “warning signs” early in the school year,Ochshorn said.
In the fall, the staff printed an editorial critical ofprincipal Joe Wilson. Soon after, the student journalists reported on anincident in which Wilson had walked into a classroom and called himself the“food Nazi,” telling students who had been eating in class that he would sendthem to the “food gas chamber” if they did not stop.
Ochshorn cited both instances as factors that led to theimplementation of a new set of guidelines for the newspaper.
Along with adviser Stephanie Vinch, Wilson informed thestudents in January 2005 that they would be operating under a revamped systemof administrative oversight, made official through the guidelines.
Under the guidelines, the newspaper adviser was instructedto “read, edit and approve all articles prior to publication.” No issue of the Tattler was to be sent to the printer without the adviser’s final approval.
Judy Pastel, former district superintendent, said theguidelines did nothing more than formalize existing practice.
The student journalists disagree.
Bryan Ellerbrock — who said he “grew up in the Tattler office as a little kid” while his mother, Eileen Bach, served asadviser prior to Vinch — does not remember any instance in which the final sayover newspaper content lay beyond the students’ control.
“My experience with the Tattler is that it’s asindependent and student-run as possible,” said Ellerbrock, the newspaper’s2004-05 distribution manager and another named plaintiff.
In their February 2005 Valentine’s Day edition, the studentsplanned to run an article entitled, “How is sex being taught in our healthclasses?”
Along with the article, the student editors were set to runa satirical cartoon, which depicted a teacher standing in front of a chalkboardthat displayed eight stick figures in various sexual positions.
After reviewing the newspaper, the students were told thatthe cartoon violated the standard for obscenity set forth by the newguidelines. They were not permitted to run it.
Pastel stands by the district’s decision.
“In a publication that you’re sending out to 12, 13, 14 yearolds, this cartoon was not going to help our efforts in trying to educateyounger students about acts that might impact them for the rest of theirlives,” Pastel said. “I’d like to give [the student journalists] as muchfreedom as we possibly can, understanding the world under which adistrict-sponsored newspaper must operate.”
The newspaper staff ran a blank white box where the cartoonwould have gone.
Frustrated, the students decided to publish the cartoon inan independent newspaper — one they created on their own time, without anydistrict support. But administrators refused to let them distribute theso-called March Issue on campus, citing the sameobscenity standard.
The students used the cartoon’s censorship, along with thedecision to prevent distribution of the underground publication, as a legalplatform to challenge the guidelines under which the newspaper was operating.
“For us, the cartoon has always been a secondary issue,”said Andrew Alexander, the 2004-05 Tattler news editor and anotherplaintiff. “The real question here is whether it is permissible for a school totake an independent student newspaper and turn it into the mouthpiece of theadministration. We think that it clearly isn’t.”
A federal district court judge, however, agreed with theschool district and upheld both the restriction of the cartoon and thedistribution of the March Issue in a March 2009 ruling. The judge,however, did not offer a final decision on whether the underlying Tattler guidelines were constitutional.
Schlather, who has been representing the students on apro-bono basis, said he expects the guidelines to move to a separate trial inthe near future.
For now, though, Schlather’s primary concern is rightingwhat he sees as a major wrong: the Second Circuit’s opinion.
“Their decision strikes the death knell to high schooljournalism as we have known it at least in this community, and my guessthroughout the country,” he said.
A far-reaching decision
Two years after the district court’s decision, both thecartoon and independent March Issue were onceagain on center stage as the students appealed.
This time around, however, the Second Circuit’s decision wasfar more damaging than any that had come previously, said Frank LoMonte,executive director of the Student Press Law Center.
The court began by classifying the Tattler as a “limited public forum” – a legal term with significantimportance to student media.
In years past, LoMonte said any classification of a studentpublication as a “public, designated or limited forum” allowed the publicationto seek protection under the “Tinker standard.” The Tinker standard refers to a 1969 Supreme Court case, Tinkerv. Des Moines Independent Community School District, which held thatpublic school students have a right to speak freely, with the exception ofspeech that is illegal or causes a substantial disruption to school activities.
The Second Circuit chose instead to apply the “Hazelwoodstandard” — which refers to a 1988 case, Hazelwood SchoolDistrict v. Kuhlmeier, in which the Supreme Court held that schoolsmay censor non-forum, curricular publications for legitimate educationalreasons. The Second Circuit used the Tattler’s “limited publicforum” classification to unanimously rule in the school district’s favor.
“While ICSD apparently opened the newspaper to some — or even many — types of speech,there is no evidence that the school permitted ‘indiscriminate use by thegeneral public,’ as is required to create a traditional public forum or designatedpublic forum,” Judge Jose Cabranes wrote.
Looking back, LoMonte said the ruling was “the most hurtfuldecision for high school journalism since Hazelwood.”
Schlather agreed, adding that “there has been what appearsto be an erosion and rendering hollow of those very ringing words in Tinker that ‘students and teachers do not shed their constitutional rightsof freedom of speech and expression at the schoolhouse gate.’”
He called the Second Circuit’s decision “amischaracterization of the law surrounding public fora and a botchedopportunity by the court.”
As a practical manner, there is no way for a student-runnewspaper to operate as a forum “wide open to the entire citizenry,” LoMonteadded. He explained that a student publication is a classic example of alimited public forum because “nobody thinks that a citizen can walk off thestreet and demand access to the editorial page of the student newspaper … Inthat way, a student newspaper is still a public forum, but only for aparticular class of people or a particular type of speech.”
John Bowen, adjunct professor of journalism at Kent StateUniversity and chairman of the Journalism Education Association’s ScholasticPress Rights Commission, said the decision means that student publications willhave to be particularly careful about what they call themselves in the future.
“If you’re going to say that you’re a public forum, thenyou’re going to have to be able to explain why and how,” he said. “A lot ofhigh school newspapers today aren’t using the language correctly.”
Starr Sackstein, JEA’sNew York state director, said there is no hard data on how many studentnewspapers claim to be limited public fora, but guessed that a majority of herstate’s publications operate that way.
LoMonte emphasized that student publications in the futurewill need to have their forum status not just in name, but in practice, aswell.
Turning to the independent newspaper, the Second Circuitapplied the 1986 Supreme Court case Bethel School District v. Fraser,which held that a school did not violate a student’s First Amendment rightswhen it suspended him for giving an in-school speech full of sexual innuendo.
The Second Circuit said the cartoon met the standard for“lewdness” set forth in that case and could be regulated by schooladministrators.
“Although the Supreme Court has not clarified the extent towhich the Fraser doctrine applies in contexts beyond thefacts of that case … we have not interpreted Fraser as limited eitherto regulation of school-sponsored speech or to the spoken word,” Cabraneswrote.
Schlather said the circumstances surrounding Fraser were clearly limited to a “captive audience,” which he feels is notthe case when it comes to reading a student newspaper.
For Paulson, of the First Amendment Center, the SecondCircuit’s decision embodies a far-reaching misunderstanding by adults of theclimate in today’s high schools.
“This cartoon was probably one of the least explicit thingsin the lives of the 14- or 15-year-old readers,” he said. “This decisionsuggests a total lack of understanding about what’s going on among our nation’syouth.”
A troubled future?
If not overturned by the Supreme Court, the Second Circuit’sopinion will become binding precedent in Connecticut, New York and Vermont.
While the 2005 Tattler alumni remainoptimistic about the future of the case, R.O. v. Ithaca City School District islargely a relic of the past for the current newspaper staff.
“Very few people in the high school even know that this wasever an issue,” current Tattler Editor-in-ChiefIngrid Sydenstricker said. “I’d like our staff to get a bit more involved withit next year, because this is a big part of our history.”
Though Sydenstricker is sympathetic with the students’objections to the censorship six years ago, she feels that “because the Tattler is not independent, the school should have some say.”
She added that members of the newspaper staff have beenhesitant to pursue potentially controversial stories over the past few years,mainly because of the “distant legacy” left over from the case.
Deborah Lynn, who has served as adviser to the Tattler for the past three years, agreed, adding that she hopes futurestaffs will take a more critical approach to the reporting process.
Though the Tattler guidelines havebeen revised since the court proceedings began, the adviser must still reviewall content.
Lynn said there have been no major content disputes duringher time with the newspaper.
For Ochshorn, any requirement to submit articles to theadviser for approval remains unacceptable. Though he was disappointed to hearthat the newspaper may be shying away from certain coverage, he hopes that willchange in the future.
“The court is one way to set the standard for behavior, butthere are other means of adopting a law that protects the rights of students,”he said. “At the very least, I hope [this decision] motivates us aroundorganizing a legislative correction … not just for the Tattler,but for all student journalists.”
By Seth Zweifler, SPLC staff writer