A group of students has lost an appeal of a jury verdict that absolved a high school in Washington state of liability for quoting them in a school newspaper article about oral sex among students.

The Washington Court of Appeals on Aug. 8 rejected a bid for a new trial by four students at Emerald Ridge High School in Puyallup, Wash. The students, all of whom were quoted by name in the article about their experiences with oral sex, argued that the Puyallup School District was liable for invasion of privacy, negligence and emotional distress.

The students alleged that, as a result of the article, they were subjected to sexual harassment, embarrassment and extreme humiliation. The plaintiffs, three girls and a boy, and the parents of two of them, argued in pre-trial papers that they were entitled to between $2 million and $4 million each in damages.

The intermediate appeals court rejected claims that the trial judge issued confusing jury instructions about the school’s duty of care in publishing the article.

The ruling stemmed from the February 2008 issue of JagWire, the student newspaper, which carried a front-page article entitled, “Oral Sex at ER: Students are having oral sex and it is not talked about in school.”

Before the article’s publication, the school’s journalism class, taught by first-year journalism teacher Kevin Smyth, distributed an anonymous, optional survey to the student body asking questions relating to sex, drugs and alcohol. Later, a student reporter interviewed the plaintiffs during lunch at school.

According to the student-reporter’s testimony, cited in opinion, she wore a JagWire badge and identified herself as a reporter. She explained the article’s topic and asked the students if she could quote them. She also asked whether they wanted to decline to be interviewed or to answer any individual question.

Each of her subjects agreed to be interviewed, the reporter testified. She recorded each interview and later drew notes from the recordings. She interviewed additional subjects, but removed their quotes at those students’ request.

Smyth, the journalism teacher, reviewed the issue before it was published. The student editorial board consulted with the school’s previous journalism adviser, who suggested that the student journalists confirm that they had permission from the quoted students before publication. The reporter who conducted the interviews assured Smyth that she had obtained their consent. Smyth asked the reporter to confirm consent a second time. The reporter did not do so, the appeals court said. The school principal did not review the issue before it was published.

The story ran with large-font quotes about oral sex highlighted against provocative photographs, the court wrote. The quotes, identified by the JagWire staff as “sextimonials,” appeared with the students’ names.

They included the following:

“Honestly I feel like it offers a lot more to the relationship because you kind of get bored if you’re not engaging in other activities. It’s ok because it’s with someone I really care about.”

“When people just rush into it, like me and [initials of partner], we waited a year (and a year is a really long time). I thought we waited the perfect amount of time because I was ready. It’s not something I want to regret. I don’t really regret anything like mistakes and I don’t think it was a mistake.”

“I was 15. I was horny. It wasn’t really a relationship at that point. I’d known the guy for a week.”

“We’d already been going out for a year and we were in Mexico.”

The following month, the issue won first place “best in show” prize at the Washington Journalism Education Association. That same month, the district revised its policy to require the principal to read and approve of anything printed in the newspaper.

The plaintiffs filed suit in Pierce County, Wash., Superior Court, in November 2008.

In pre-trial motions, the school district moved for summary judgment, arguing that the newspaper was an “open forum” over which it had no content control, except under very limited circumstances. The judge denied the motion, and both parties agreed that she, not the jury, would decide whether the paper was an open or a limited public forum, which would allow the school even stricter editorial control.

The three-week trial began in March 2010 on the liability issues. During the trial and before the judge ruled on the forum issue, the district, in trying to show that it had not breached any duty of care, referred to its written mission statement about its newspaper, which declared that it was an “open forum.”

After each side presented testimony but before the case went to the jury, the judge ruled that the newspaper was a limited public form, which meant that school personnel exercised some control over its content.

In April 2010, the jury found, 10-2, that the district had not invaded the privacy of the four students or negligently allow their names to be published.

On appeal, the plaintiffs argued that the judge’s finding of a “limited open forum,” taken with the district’s evidence about an “open forum,” combined with the judge’s instructions that did not mention the type of forum but referred to the constitutionality of limiting student speech, led to jury confusion.

The appeals court was not persuaded. “The students contend that errors of law occurred at trial when the trial court erroneously ruled that the JagWire was a limited open forum, waited to rule on the forum issue until after trial, and issued inadequate jury instructions. We disagree,” the court found.

Nathan Roberts, an attorney who represented the student plaintiffs, said he anticipated an appeal.

“Even if students had given their permission, which they did not, no reasonable journalist and no reasonable instructor would have allowed the story to go to print with the students’ names,” said Roberts, an attorney at Connelly Law Offices in Tacoma, Wash. “The female students [who were quoted] were branded as promiscuous sluts by both genders alike, and were subjected to open mocking and sex advances by male students and isolation by female students.”

Michael Patterson, an attorney for the district, said chances for a successful appeal are slim. “They’ve got two options. A motion for reconsider is highly unlikely. The other option is to petition the [Washington] Supreme Court for review. That is a long shot,” said Patterson, an attorney at Patterson Buchanan Fobes Leitch & Kalzer in Seattle.

Filing amicus briefs on behalf of the school district were Washington Defense Trial Lawyers and Student Press Law Center.

Contact Leigh Jones at ljones@alm.com.