645 F.3d 533 (2nd Cir. 2011), 09-1651-cv, R.O. ex rel. Ochshorn v. Ithaca City School Dist.

Docket Nº:09-1651-cv.
Citation:645 F.3d 533
Opinion Judge:JOS
Party Name:R.O., a minor, by his parent and guardian Jonathan OCHSHORN, T.S., a minor, by his parent and guardian Mark E. Sorrells, Andrew M.H. Alexander, Harry T. Stinson, L.F., a minor, by his parent and guardian Elizabeth A. Fattaruso, A.H., a minor, by his parent and guardian Teresa Halpert Des Chaines, Bryan Ellerbrock, P.P., a minor, by his parent and g
Attorney:Raymond M. Schlather, Schlather, Stumbar, Parks & Salk LLP, Ithaca, NY, for plaintiffs-appellants. Mark J. Lemire, Lemire Johnson, LLC, Malta, NY, for defendants-appellees. Joseph P. Esposito (Thomas C. Goodhue, Ian Conner, and Dennis Gucciardo, Hunton & Williams; Frank D. LoMonte and Michael C. ...
Judge Panel:Before: CABRANES and CHIN, Circuit Judges, KORMAN, District Judge. [*]
Case Date:May 18, 2011
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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645 F.3d 533 (2nd Cir. 2011)

R.O., a minor, by his parent and guardian Jonathan OCHSHORN, T.S., a minor, by his parent and guardian Mark E. Sorrells, Andrew M.H. Alexander, Harry T. Stinson, L.F., a minor, by his parent and guardian Elizabeth A. Fattaruso, A.H., a minor, by his parent and guardian Teresa Halpert Des Chaines, Bryan Ellerbrock, P.P., a minor, by his parent and guardian Ramesh Raj Pokharel, Plaintiffs-Appellants,

v.

ITHACA CITY SCHOOL DISTRICT, Judith C. Pastel, Superintendent, in her official and individual capacities, Joseph Wilson, Ithaca High School Principal, in his official and individual capacities, Defendants-Appellees.

No. 09-1651-cv.

United States Court of Appeals, Second Circuit.

May 18, 2011

Argued: Dec. 9, 2010.

Page 534

Raymond M. Schlather, Schlather, Stumbar, Parks & Salk LLP, Ithaca, NY, for plaintiffs-appellants.

Mark J. Lemire, Lemire Johnson, LLC, Malta, NY, for defendants-appellees.

Page 535

Joseph P. Esposito (Thomas C. Goodhue, Ian Conner, and Dennis Gucciardo, Hunton & Williams; Frank D. LoMonte and Michael C. Hiestand, Student Press Law Center, on the brief), Washington, D.C. and Arlington, VA, for amici curiae Student Law Press Center, Journalism Education Association, and National Scholastic Press Association, in support of plaintiffs-appellants.

Before: CABRANES and CHIN, Circuit Judges, KORMAN, District Judge. [*]

JOSÉ A. CABRANES, Circuit Judge:

Not for the first time, and surely not for the last, we consider a claim by students in a public high school that administrators have violated their constitutional rights of free expression. The extensive jurisprudence governing student discipline in the public schools was spawned by the portentous and quotable pronouncement of the Supreme Court four decades ago that " [i]t can hardly be argued that either students or teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).

This case involves a public high school's effort to regulate the sexually-explicit content of student publications to be distributed on campus grounds. Plaintiffs, former students of Ithaca High School (" IHS" ), appeal from a March 23, 2009 judgment of the United States District Court for the Northern District of New York (Norman A. Mordue, Chief Judge ) granting partial summary judgment 1 in favor of defendants, Ithaca City School District (" ICSD" ) and various school administrators, for alleged violations of plaintiffs' rights under the First and Fourteenth Amendments.

In their complaint, plaintiffs asserted principally that: (1) defendants unlawfully required plaintiffs to submit articles to a Faculty Advisor before they could be published in the Ithaca High School student newspaper, The IHS Tattler (" The Tattler " ); (2) defendants unlawfully prohibited the publication of a sexually explicit stick-figure cartoon in the February 2005 issue of The Tattler ; and (3) defendants unlawfully prohibited on-campus distribution of an independent student newspaper, The March Issue, containing the same sexually explicit cartoon.

Plaintiffs sought damages for these alleged violations of their constitutional rights. Plaintiffs further sought a declaratory judgment that ICSD's " Guidelines for The Tattler Advisor and Editors" (which, among other things, included the requirement that plaintiffs submit potential articles to a Faculty Advisor for review) were unconstitutional, as well as an injunction preventing defendants from adopting and implementing the Guidelines.

We hold that defendants complied with the standards for regulation of speech in public schools set forth in Bethel School District Number 403 v. Fraser, 478 U.S. 675, 683, 106 S.Ct. 3159, 92 L.Ed.2d 549 (1986), which permits schools wide discretion to prohibit speech that is " lewd, indecent, or offensive," and Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273, 108 S.Ct. 562, 98 L.Ed.2d 592 (1988), which permits schools to censor school-sponsored

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speech in ways " reasonably related to legitimate pedagogical concerns."

The judgment of the District Court is affirmed.

BACKGROUND

A. Overview of The Tattler

The Tattler is the Ithaca High School newspaper. Each month approximately 3,000 copies of The Tattler are printed and distributed to students by placing copies in each homeroom and throughout the school's common areas. The paper is also distributed to IHS teachers, to the faculty mailboxes of ICSD middle schools and elementary schools, and to cafes and shops in the surrounding neighborhoods. About two-thirds of the printed issues of The Tattler are distributed on ICSD grounds.

The editors of The Tattler are all IHS students and are permitted to work on the paper during school hours when there is no conflict with their classes, such as during free periods and lunch periods. In certain cases, students may receive course credit for their work.

The Tattler is funded largely by ICSD, including ICSD's provision and maintenance of the newspaper's office space, a stipend for the Faculty Advisor, a budget for printing and distribution expenses, and money for the staff to attend student journalism conferences. Other funding is provided by the advertising sales made by students to local merchants, as well as by student contributions of items such as extra office furnishings and office supplies.

Since 1979, The Tattler has operated under the supervision of an IHS teacher appointed as the paper's Faculty Advisor. The precise role of the Advisor is disputed, but the parties agree that the Advisor provides general guidance to the student staff and has the " final say" regarding content and publication in at least some circumstances, specifically " in cases involving articles that are libelous[,] ... obscene[,] ... or [ ] that advocate immediate, violent disruption of school activities." 2

B. ICSD's Censorship of the Stick-Figure Cartoon

In late December 2004 or early January 2005, Faculty Advisor Stephanie Vinch (" Vinch" ) received a pre-publication draft, or " proof set," of the January issue of The Tattler. The proof set included a cartoon created to accompany an article written by a former IHS student entitled: " Alumni Advice: Sex is fun!" The cartoon depicted a doorway with the phrase " Health 101" written over the door. Near the doorway, a teacher pointed to a blackboard that contained eight drawings of stick figures in various sexual positions, with the phrase " Test on Monday" written on the blackboard underneath the drawings.

After reviewing the cartoon and article, Vinch deemed them to be inappropriate for publication in a high school newspaper. Accordingly, she " crossed out" the cartoon and the accompanying article on the proof set. The January 2005 issue of The Tattler was printed without the cartoon and accompanying article. The student editors did not appeal Vinch's decision.

Also during December 2004 or January 2005, Vinch met with the IHS Principal, Joseph Wilson (" Wilson" ), and the ICSD Assistant Superintendent, William Russell (" Russell" ), to discuss her possible resignation as Faculty Advisor. She explained

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that she perceived " increasing resistance by the staff of The Tattler to [her] role as Faculty Advisor" and proposed implementing a set of guidelines to more clearly define her responsibilities and those of the student editors. Vinch subsequently provided a set of proposed guidelines to Russell, who, in turn, discussed them with ICSD Superintendent Judith Pastel (" Pastel" ) and with ICSD's lawyers. On January 21, 2005, Vinch, Wilson, and Russell met with The Tattler editors and distributed a document setting forth " Guidelines for The Tattler Advisor and Editors," as follows:

The Tattler is an Ithaca High School-sponsored publication of the Ithaca City School District...

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