Wash. Court of Appeals affirms trial court's dismissal in oral sex case

WASHINGTON – Four former students suing a Washington school district for an article in the student newspaper that quoted their views on oral sex were denied their request for a new trial Wednesday by the state’s Court of Appeals.

The students sued after the Emerald Ridge High School student newspaper, the JagWire, published an issue in February 2008 that featured articles on oral sex and quoted the four by name in regards to their sexual habits.

In a 2010 trial, attorneys for the students argued that the school district was negligent when it allowed the article to run. The students said they did not know they would be quoted by name, and said that the article was invasive and violated their privacy.

A Pierce County jury rejected the students’ claims. After a motion for a new trial was denied, the students filed an appeal.

In their appeal, the students raised issue with trial court’s ruling on the JagWire’s forum status, which has been used by courts since the Supreme Court’s 1988 Hazelwood v. Kuhlmeier ruling to determine the scope of First Amendment rights guaranteed to students. During the trial, District Judge Susan Serko ruled that the JagWire was a limited open forum.

Under Hazelwood, student newspapers are considered limited or non-public forums and are subject to administrative censorship unless the school has a policy or practice establishing the paper as an open or public forum. In those cases, student journalists are held to the less-restrictive standard established in Tinker v. Des Moines Independent Community School District. Tinker allows administrators to censor student speech only if it would cause a “material” disruption — usually, a physical event preventing the normal operation of the school.

During the trial, the school district made a distinction between the legal standards concerning forum status and the pedagogical practices exercised in the classroom, explaining that the paper operated under the “educational practice” of an open forum where students had ultimate control over content.

The students’ appeal argued that focusing on the pedagogical technique and not the legal forum status of the publication deprived the four of a fair trial by confusing jurors. The appeal also objected to Serko’s ruling designating the paper a limited open forum.

The opinion from the Appeals Court on Wednesday rejects those claims, finding that while there was “the potential for juror confusion” concerning the explanation of teaching methods, ultimately the instructions issued to jurors were clear.

Nathan Roberts, one of the attorneys representing the students, said he didn’t feel the ruling fully addressed the concerns raised in his client’s appeal.

“It is what it is,” Roberts said. As of press time, he said he had not yet spoken with his clients, but said they would be looking at the ruling closely to determine whether they would seek an appeal to the Washington Supreme Court.

Mike Patterson, the school district’s attorney, said he was pleased by the Appeals Court’s ruling but not surprised. He said it was clear to him that the trial court jury believed both that the students gave their consent to the interviews.

“I think it was a great victory for students,” Patterson said.

By Sara Gregory, SPLC staff writer