Appeal Certification Press Release

From TattlerWiki

IHS NEWSPAPER CENSORSHIP CASE MOVES TO FEDERAL APPEALS COURT

FOR IMMEDIATE RELEASE -- FEBRUARY 5, 2010

ITHACA, NEW YORK -- A case resulting from Ithaca City School District censorship of a high school student newspaper will be heard in the Second Circuit Court of Appeals.

In a ruling issued late last week, U.S. District Judge Norman A. Mordue rebuffed ICSD efforts to dismiss the lawsuit, permitting eight former editors of the Ithaca High School Tattler to continue the First Amendment case.

In March, Mordue gave the newspaper a partial victory, strongly suggesting that restrictions imposed by the ICSD in response to the Tattler's criticism of then-IHS Principal Joe Wilson were unconstitutional, and upholding the most important parts of the case.

However, Judge Mordue dismissed several of the students' other claims, and his latest ruling, issued last week, allows students to appeal the partial dismissal to the Second Circuit Court of Appeals.

After the court's decision in March, the ICSD issued new restrictions for the Tattler, allegedly to comply with the decision. In court filings, it argued that the new restrictions made the entire lawsuit moot and tried to use procedural motions to dismiss the case.

But the new restrictions represent little more than a rephrasing of the old, and, Judge Mordue wrote, "defendants do not concede that the 2005 Guidelines were unconstitutional ... The record does not contain sufficient evidence for this Court to reasonably expect that [the ICSD] would not attempt to re-enact provisions in the 2005 Guidelines."

In trying to turn a routine procedural argument into an argument over the fundamental facts and merits of the case, the ICSD "failed to adhere to the Local Rules and procedural standards", Mordue wrote. "None of the factual or evidentiary submissions by [the ICSD] are relevant."

The case began in the fall of 2004, when the Tattler printed an editorial critical of Principal Wilson. Later, the newspaper reported an incident in which Wilson entered a classroom and told students that he was the "Food Nazi" and if students continued eating in class, he would send them to the "food gas chamber." The Tattler also commissioned a survey showing that nearly 70 percent of students disliked the policies of the new principal.

The ICSD responded by imposing an unprecedented set of restrictions on the Tattler. These restrictions changed the newspaper from a "Tinker" paper--a publication relatively exempt from school censorship as per the U.S. Supreme Court's decision in Tinker v. Des Moines (1969)--to a "Hazelwood" paper--one that could be censored at will by school administrators as per the U.S. Supreme Court's decision in Hazelwood v. Kuhlmeier (1988). The ICSD also forbade future surveys of students.

The imposition of the Guidelines resulted in the resignation of the faculty advisor, and the Tattler was forced to publish underground for several months. After lengthy negotiations with the ICSD were unsuccessful, eight student editors of the newspaper filed suit in June 2005.

Named in the suit are the ICSD, Wilson, Superintendent Judith C. Pastel, and former Assistant Superintendent for Curriculum and Instruction Bill Russell (now Superintendent of the Owego-Apalachin Central School District in Owego, NY).

The students are being represented pro bono by Ithaca attorney Ray Schlather of Schlather, Stumbar, Parks and Salk. The case is in the U.S. District Court for the Northern District of New York as 5:05-CV-695, Ochshorn, et al. v. Ithaca City School District, et al. Copies of Judge Mordue's decision, court filings, press clippings, and background information are available online at http://www.rmozone.com/tattlerwiki

The Tattler has been the student-run newspaper at Ithaca High School since 1892. It is published monthly and has a circulation throughout the school and greater community of 3,000. Past editors include former Deputy Defense Secretary Paul Wolfowitz and Yale Law School professor and New York Times-bestselling author Stephen Carter. http://www.ihstattler.com

CONTACT:

Raymond M. Schlather, esq.

Schlather, Stumbar, Parks and Salk

ray@ithacalaw.com

(607) 273-2202

Adam Goldstein

Student Press Law Center

agoldstein@splc.org

(703) 807-1904

Robert Ochshorn (plaintiff)

rmo@mit.edu

(607) 279-5957

Andrew Alexander (plaintiff)

amha@uchicago.edu

(607) 592-4759