M.R.B. v. Puyallup Sch. Dist.
| Decision Date | 08 August 2012 |
| Docket Number | No. 40737–0–II.,40737–0–II. |
| Citation | 169 Wash.App. 837,283 Ed. Law Rep. 522,282 P.3d 1124 |
| Court | Washington Court of Appeals |
| Parties | M.R.B., individually; K.B.W., individually; M.L.F., individually; Charles Freedle and Lorie Huniu, individually and as Guardians for M.L.F.; W.R.H., individually; and Richard Higgins and Karen Higgins, individually and as guardians for W.R.H., Appellants, v. PUYALLUP SCHOOL DISTRICT, a political subdivision of the State of Washington, Respondent. |
OPINION TEXT STARTS HERE
John Robert Connelly, Jr., Nathan Paul Roberts, Connelly Law Offices, Tacoma, WA, Philip Albert Talmadge, Sidney Charlotte Tribe, Talmadge/Fitzpatrick, Tukwila, WA, for Appellant/Cross–Respondent.
Michael Alexander Patterson, Donald Franklin Austin, II, Patterson Buchanan Fobes Leitch & Kalzer, Thomas Elliot Morse Hutton, Attorney at Law, Seattle, WA, for Respondent/Cross–Appellant.
Stewart Andrew Estes, Keating, Bucklin & McCormack, Inc., P.S., Seattle, WA, Amicus Curiae on behalf of Washington Defense Trial Lawyers.
Ambika Kumar Doran, Davis Wright Tremaine LLP, Seattle, WA, Frank Lomonte, Atlanta, GA, Amicus Curiae on behalf of Student Press Law Center et al.
¶ 1 In February 2008, Emerald Ridge High School's student newspaper, the JagWire, published an issue featuring articles on oral sex. Four students quoted in the newspaper and their parents (Students) sued the Puyallup School District, claiming invasion of privacy, negligent hiring and supervision, negligence, and outrage. Ultimately, the jury returned a verdict in the District's favor.
¶ 2 The Students appeal the trial court's order denying their CR 59 motion for a new trial, arguing that the trial court erred by denying their motion because (1) the trial court committed errors of law when it ruled that the JagWire was a limited public forum and waited to rule until after the parties had presented their cases, (2) the District committed misconduct at trial when it presented evidence and elicited testimony on the journalism teaching theory of “open forum” in Emerald Ridge's newspaper production course, (3) the manner in which the District used the Students' statements of damages at trial constituted misconduct, (4) other irregularities in the trial court's proceedings deprived the Students of a fair trial, and (5) substantial justice has not been done. We affirm.
¶ 3 Emerald Ridge students produced the JagWire, a high school newspaper, in their newspaper production course. In the 2007–08 school year, Kevin Smyth taught the class. Smyth attended a journalism conference before the school year started, but that was his first year advising a journalism class. The students were responsible for all publication decisions, ranging from advertising to design. Students received credit and letter grades for the course; the District paid for the instructor. Smyth instructed the students on topics such as the First Amendment, open forum, journalism ethics, the Associated Press Stylebook, and attribution. The class was intended to be an active, student-centered learning environment rather than a traditional classroom. The editorial board, made up of five students, made editorial decisions.
¶ 4 During the 2007–08 school year, the newspaper production students decided to focus a JagWire issue on the topic of oral sex. In February 2008, the students distributed an anonymous, optional survey to the student body asking questions relating to sex, oral sex, drugs, and alcohol. Editorial board member DW then interviewed each of the students who are plaintiffs in this case during lunch at school. DW testified that in every interview, she wore a JagWire badge and identified herself as a JagWire staff member. She also explained the article's topic and asked each student if she could quote them. Finally, she expressly invited her subjects to decline to be interviewed or to decline to answer any question. Each of her subjects agreed to be interviewed. DW recorded each interview and later took notes from the recordings. DW interviewed additional subjects, but the editorial board removed their quotes when those students asked that their quotes be removed or that they be quoted anonymously.
¶ 5 Smyth reviewed the issue before it was published. The editorial board also consulted with Jeff Nusser, the prior journalism advisor, who suggested that the student journalists confirm that they had permission from the quoted students before publication. DW assured Smyth that she had obtained consent to name the students. Smyth asked that DW confirm consent a second time with each quoted student. DW did not do so.
¶ 6 The JagWire issue containing the section on oral sex was published in late February 2008. The issue contained the following: a provocative photograph on the front cover, an article entitled “Oral Sex at ER[:] Students are having oral sex and it is not talked about in school,” an article on media and pop culture's impact on the sexual behavior of teenagers, a list of sexually transmitted diseases that one can acquire if engaging in oral sex, a “[p]hysiological” explanation of the body's reaction to oral stimulation, and two contrary columns on whether oral sex is moral. Ex. 142 at 12, 14. In the issue, large quotes from several students were enlarged and highlighted against additional provocative photographs. The quotes, referred to by the JagWire staff as “sextimonials,” stated the following:
[MLF], junior [ has participated in oral sex and sex ]
[WRH], senior [ has participated in oral sex and sex ]
[MRB], senior [ has participated in oral sex ] “We'd already been going out for a year and we were in Mexico.” [KBW], senior [ has participated in oral sex and sex ]
5 Report of Proceedings (RP) at 752; Ex. 142 at 12–13. Another student was quoted but is not a plaintiff in this case.
¶ 7 After the publication of the issue, Emerald Ridge High School Principal Brian Lowney issued a letter of reprimand to Smyth because he believed that Smyth had exercised poor judgment “regarding some content, survey methods approval, suggestive photos and the naming of sources.” 4 RP at 481. On March 15, the issue won first place “best in show” at the Washington Journalism Education Association conference. 4 RP at 488. In October 2008, the District revised its policy and, now, “prior to [ ] publication, [Lowney is] required to read and approve or disapprove of anything that's printed in the newspaper.” 4 RP at 500.
¶ 8 On January 7, 2009, the Students sued the District, alleging invasion of privacy, negligent hiring and supervision, negligence, and outrage. The Students alleged that, as a result of the publication, they were subject to sexual harassment, embarrassment, extreme humiliation, ridicule, severe emotional distress, psychological damage, and harm to their reputations.
¶ 9 The District moved for summary judgment on all claims on the ground that the JagWire was a “public forum” and the editorial board's decisions were outside school personnel control. The District argued that had District personnel involved themselves in editorial decisions, it would have improperly interfered with the students' constitutional rights. The District contended that because it did not and could not oversee the paper, it could not be liable for the student editorial board's actions. The trial court denied the motion.
¶ 10 At trial, both parties agreed that the trial court would determine as a matter of law the type of forum that existed at Emerald Ridge. The Students moved in limine to prevent the District from arguing that “they are not responsible due to an ‘open/public forum’ practice they now contend that they had for their school newspaper.” 2 Clerk's Papers (CP) at 235. The Students moved to exclude any argument or implication “that the so-called ‘open forum practice’ allowed [the District] to delegate its duty to protect the plaintiffs from foreseeable harm” or that only the newspaper students were responsible for the decision to publish names of sources, that the District's open forum practice “prevented it from controlling the content of its student paper,” or that “the U.S. or Washington constitutions interfered with its duty of reasonable supervision.” 2 CP at 236, 238, 243. Finally, the Students moved to exclude any “lay testimony regarding the law of ‘open/public forum’ or on any other legal issue in this case.” 2 CP at 245. The trial court granted the motion regarding lay testimony as to the law and reserved ruling on the other motions. Midtrial, the Students filed a renewed motion in limine regarding “Testimony to Legal Conclusions & Jury Nullification.” 3 CP at 523.
¶ 11 At trial, the District explained that the JagWire operated under the educational practice of what it referred to as an open forum. “[U]nder an open forum, students are in control of the content and the design of the newspaper.” 5 RP at 738. Smyth understood his role, as the journalism advisor, was to “ensure that we didn't publish things that were not protected speech” or that violated school policy. 5 RP at 743.
¶ 12 The District's policy on “Freedom of Expression” at the time, Policy 3220, governed the production of high school newspapers in the District:
The free expression of student opinion is an important part of education in a democratic society. Students'...
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