Second Circuit Nixes Student Newspaper’s Sex Ed Cartoon

In late December 2004 or early January 2005, the faculty adviser of the Ithaca High School newspaper, The Tattler, excised a cartoon and 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.

In the February 2005 issue of the newspaper, The Tattler editors sought to print the same stick-figure cartoon that was previously rejected. This time, the editors proposed that the cartoon accompany a more serious article entitled: “How is Sex Being Taught In Our Health Class?” Once again, the faculty adviser refused to allow the cartoon to be published in the newspaper. However, she did permit the accompanying article (without the cartoon) to appear in the February issue.

The student editors sued claiming that: (1) the school district unlawfully required them to submit articles to a faculty advisor before they could be published; (2) the school district unlawfully prohibited the publication of a sexually explicit stick-figure cartoon in the February 2005 issue of The Tattler; and (3) the school district unlawfully prohibited on-campus distribution of an independent student newspaper, The March Issue (which was newly created by The Tattler’s editors and received no subsidy from the school), containing the same sexually explicit cartoon.

The editors sought damages for these alleged violations of their constitutional rights. They further sought a declaratory judgment that the district’s “Guidelines for The Tattler Advisor and Editors” (which, among other things, included the requirement that the editors submit potential articles to a faculty adviser for review) were unconstitutional, as well as an injunction preventing defendants from adopting and implementing the Guidelines.

On March 23, 2009, the District Court granted partial summary judgment in favor of school district. In its Memorandum Decision and Order, the District Court held that The Tattler qualified as a “limited public forum,” and, therefore, that its contents were subject to “reasonable and viewpoint neutral” restrictions. Next, the Court held that pursuant to case law, the district’s refusal to publish a sexually explicit cartoon in The Tattler was
reasonable and viewpoint-neutral because the cartoon was lewd and conflicted with the school’s legitimate pedagogical concerns. Third, the Court held that, pursuant to Tinker, 393 U.S. at 506, the district’s refusal to distribute The March Issue was reasonable and viewpoint-neutral because distribution of the cartoon would materially and substantially disrupt the classwork and discipline of the school.

An appeal to the Second Circuit Court of Appeals followed.

In a short but significant decision, the Court found that the drawings of stick figures in sexual positions clearly qualify as “lewd”—that is, “inciting to sensual desire or imagination.” Accordingly, the school district acted reasonably in preventing the distribution of The March Issue at the high school. In addition, the Court held that the school district lawfully prohibited the publication of a sexually-explicit cartoon in The Tattler pursuant to the standards for regulation of speech set forth in Bethel School District Number 403 v. Fraser, 478 U.S. 675, 683 (1986), and Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 273 (1988).

Finally, the Court concluded that the school district lawfully prohibited the on-campus distribution of a sexually-explicit cartoon in the independent student newspaper The March Issue, pursuant to Fraser; and that the question of whether the school district’s prohibition of the on-campus distribution of The March Issue was lawful under Tinker is moot.

The interesting thing about this decision is how rapidly this body of law is becoming irrelevant. With blogs and Facebook and Tumblr increasingly occupying the majority of many high school students’ time, who is even reading the school newspaper anymore? Considering the ubiquitous nature of internet pornography, sexting and other graphic displays, could these stick figure cartoons really inspire a breakdown in the educational environment?

The decision, Ochshorn v. Ithaca City School District, can be read in full here.

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