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Thursday December 2, 1999

Kentucky State Censorship Case
On Appeal to Supreme Court

By Amy Williams, Assoc. Editor

     FRESNO CAMPUS - A federal appeals court will reconsider an earlier ruling by some of its judges upholding the censorship of the Kentucky State University yearbook and student newspaper.
     The U.S. Court of Appeals for the Sixth Circuit voted on Tuesday to let 13 of its judges rehear the controversial case of Kincaid v. Gibson. In September, a three-judge panel of the Sixth Circuit rejected complaints by two Kentucky State students who had accused the university of violating their First Amendment rights by confiscating about 2,000 copies of the 1993-94 yearbook and censoring the student newspaper.
     Mark Goodman, executive director of the Student Press Law Center, told reporters "This is definitely a positive step" after the court's decision was announced this week. "We hope that as the larger group of judges considers the importance of the First Amendment on college and university campuses, they will reach a conclusion that supports student press freedom."
     Kentucky State's legal counsel, Harold Greeen, Esq. Told reporters the university, "…will continue to present its well-founded arguments."
     "Kentucky State University is still committed to the importance of student newspapers as a journalistic expression and a learning opportunity," he wrote. "We believe that yearbooks are by their nature a commemorative journal and do not present the same public forum for expression as do newspapers."
     The plaintiffs, both of whom had worked on the yearbook, sued the university in 1995 after administrators confiscated copies of the 1993-94 yearbook and transferred the newspaper's adviser to a secretarial position after she refused to prescribe the newspaper's content. Betty Gibson, vice-president for student affairs at Kentucky State, had refused to distribute the yearbook because she objected to the color of the cover, its, and pictures of current events and public figures depicted that were unrelated to the university.
     In the fall of 1994, the newly published 1992-94 edition of the K.S.U. yearbook, The Thorobred, arrived on the campus of the historically black institution. When the university's then-vice-president for student affairs, Betty Gibson,> saw the edition -- which had been created by students and supported by student fees -- she refused to distribute it and confiscated all 2,000 copies.
     Gibson's complaints? The cover was purple instead of K.S.U.'s official green and gold. The theme of the edition, "Destination Unknown," was vague and inappropriate, according to Gibson -- although the yearbook's student editor, Capri Coffer, said it reflected the fact that many students didn't know what the future held. The yearbook focused on current events rather than on university activities, contained grammatical errors, and displayed some photographs that lacked captions.
     After Gibson confiscated the yearbooks, two students filed suit against Gibson and other members of the administration, alleging that K.S.U. had violated their First Amendment rights, not only by confiscating the yearbooks but by attempting to control the content of the student newspaper, as well, through other actions. For example, the institution required that the newspaper be reviewed by a K.S.U. publications board of students and administrators before going to print -- a policy that strays dangerously close to prior restraint.
     Confiscation of the yearbook is, indeed, only part of the free-speech issue at K.S.U. Laura Cullen, the newspaper's adviser -- or "coordinator of student publications" -- claimed that she had been reprimanded and transferred to another job because she had supported the students' First Amendment rights. Although she was later reinstated, she was given specific instructions to direct the students to publish more positive news about the university, according to court records. She subsequently resigned and also sued K.S.U. on First Amendment grounds. The court dismissed her case, ruling that it was moot because she had voluntarily resigned from K.S.U.
     A federal judge in Kentucky, Joseph M. Hood, ruled against the students in 1997, saying that Kentucky State "was entitled to exercise reasonable control over the yearbook" because it was not a "public forum" protected by the First Amendment. In response, the students took their case to the U.S. Court of Appeals for the Sixth Circuit. In September, a three-judge Sixth Circuit panel affirmed the lower court's ruling.
      So now, the students -- with some 30 friends-of-the-court from journalism schools, media organizations, and professors -- have asked the entire Sixth Circuit to rehear the case, with perhaps all 22 Sixth Circuit judges participating.
      What started as a gripe from the administration over the quality of student work has now become a national debate among legal scholars, educators, and journalists' organizations, who fear threats to free expression at public colleges and universities.
     To be specific, Judge Hood cited an already controversial ruling by the U.S. Supreme Court that permits high schools to censor student newspapers (Hazelwood School District v. Kuhlmeier, 1988). The Sixth Circuit's decision extends Hazelwood to institutions of higher education. To say that high-school kids should be muzzled is bad enough; to say that college-age students do not enjoy the same constitutional protections as other American citizens is a dizzying leap. After all, many college students are legal adults. They can marry, vote, and even be jailed for committing felonies. Under the Constitution, they are also permitted to think and speak for themselves.
     Mark Goodman, the executive director of the Student Press Law Center, calls the Kincaid decision "an almost 180-degree turn from the strong First Amendment protections that have traditionally been afforded public-college student media." If the ruling prevails, Goodman says, the decision "will gut student journalism programs at some colleges and universities."
     Even more is at stake, however, if the Kincaid v. Gibson ruling stands. The ultimate destination of the case will probably be the U.S. Supreme Court, where the fundamental question to be resolved is whether university administrators can curb free expression at their institutions simply because they don't like the message or the messenger -- or because they think the vehicle that communicates the message is, as the appeals court wrote, of "poor quality." Although Kincaid is about a student yearbook, the legal and philosophical questions extend to many kinds of expression by students and, perhaps, by faculty members and even administrators.
     The Sixth Circuit thinks institutional oversight of such matters is okay: "It is no doubt reasonable that K.S.U. should seek to maintain its image to potential students, alumni, and the general public," the judges said. "In light of the indisputably poor quality of the yearbook, it is also reasonable that K.S.U. might cut its losses by refusing to distribute a university publication that might tarnish, rather than enhance, that image."
     So the bottom-line issue, as seems to be the case so often in the land of higher education these days, is about marketing, about public relations, about the image a college or university presents to potential donors and supporters.
     But that rationale overlooks two central questions: The first is, What constitutes free expression in a college or university environment -- for whom and under what circumstances? The second is even more basic: What are colleges and universities all about?
     Although the Kincaid decision focuses on a student yearbook and not on other forms of free expression on campuses, the court -- by allowing the K.S.U. administrators to determine what is acceptable speech -- threatens the open nature of the marketplace of ideas that is fundamental to higher education.
     As the marketing of our institutions becomes increasingly important, we all should worry about the vigor of First Amendment guarantees of free thought and expression on our campuses. Will administrators begin to censor all kinds of messages, publications, presentations, events, and performances that they think somehow carry the institution's imprimatur -- but that they think may reflect badly on it?
     And who should determine what is "poor quality" -- and how? People often say about obscenity that they can't define it, but they know it when they see it. Will that be the legal standard as colleges undertake to define "quality" student expression?
     Of course, there should be oversight and guidance of students who want to express themselves; as always, colleges and universities should focus on the teaching and learning that such activities afford. Of course, colleges have the right, and even the obligation, to appoint advisers to counsel student journalists and look out for problems. But should those advisers function as thought police? Absolutely not.
     The second central question concerns the fundamental purpose of higher education. We exhort students to try out new ideas and to learn how to find the ones that work. We give them an environment where it is not only safe for them to think for themselves and to make mistakes, but where "question authority" is more than just a slogan from the 1960s and '70s.
     All of us who teach college students must admit that we cringe occasionally at the unevenness and excesses of student journalism at our institutions -- to say nothing of students' expressions of passion in other forums. But as we cringe, we should remember our own youthful enthusiasms, and how we learned from them.
     The debate is painful for professors, because the Sixth Circuit ruling in Kincaid v. Gibson undercuts what most of us think our lives are all about. As Voltaire said, "I disapprove of what you say, but I will defend to the death your right to say it." The actions of Kentucky State and the Sixth Circuit court reflect the kind of thinking that brought us book burnings. Such thinking flies in the face of both constitutional principles and -- speaking for myself -- the reasons why I got into teaching in the first place.
     As faculty members, we naturally want the public to see our colleges and universities in the best possible light. But the threat of administrators censoring publications, speeches, presentations, theater performances, art shows, or even classroom lectures smacks of a Big Brother who has abandoned intellectual integrity and is driven by the interests of marketing and institutional P.R.
     We should each think about whether what happened in Kincaid v. Gibson could happen on our own campuses. I hope that most of us will conclude that Kincaid is not about a purple yearbook. It is about protecting both our constitutional right to unfettered free expression and the fundamental character of higher education.
     Colleges and universities are not simply products that should be edited, polished, and marketed. They are still -- at least for now -- places where all people can think and say what they want, where they may make mistakes -- and can learn from the experience.
     The ruling by the U.S. Court of Appeals for the Sixth Circuit upset groups representing college journalists and journalism professors across the nation, who worry that the case could set a precedent for their student publications and reduce the academic freedom of faculty members.
     Seven college-journalism organizations, four state and regional groups representing student publications, as well as 15 schools or departments of journalism had filed a brief with the Sixth Circuit supporting the Kentucky State students' lawsuit. Four professional-journalism groups, including the Society of Professional Journalists and the American Society of Newspaper Editors, also had supported the students.
     "For more than 30 years, courts have ruled consistently that student journalists at colleges and universities have strong First Amendment protection," said Michael C. Hiestand, a lawyer with the Student Press Law Center, one of the groups supporting the students. "This decision is a strong ruling in the opposite direction."
     The two Kentucky State students, who both had worked on the yearbook, sued the university in 1995 after the institution's vice-president for student affairs, Betty Gibson, confiscated all copies of the 1992-94 yearbook and refused to distribute them. Ms. Gibson had objected to the color of the yearbook's cover, its vague theme and title, and the inclusion of pictures of current events and public figures unrelated to the university, as well as to the lack of captions for many of the photos.
     The students also had accused administrators at the historically black university of trying to censor the student newspaper and of demanding that it carry "more positive news." When the university's adviser to the newspaper refused to prescribe the newspaper's content, she was transferred to another job at Kentucky State. But after filing a grievance, she was reinstated.
     In its ruling last week, a divided three-judge panel of the Sixth Circuit appeals court concurred with a federal judge's 1997 ruling that the yearbook was not a "public forum," and that the university had a right to approve its content. The majority also ruled that the students had failed to show they had been harmed by the university.
      Judges Alan E. Norris and James L. Ryan endorsed the lower court's ruling that the college publications were subject to the same restrictions placed on high-school newspapers by the U.S. Supreme Court in Hazelwood School District v. Kuhlmeier. In that 1988 ruling, the Supreme Court said that school administrators could censor the student newspaper.
      Judge Norris, in writing the appeals court's opinion, reasoned that because Kentucky State's rules for student publications, as laid out in its student handbook, contained no disclaimers stating that the viewpoints in the yearbook were those of the students, Kentucky State had a right to oversee it as a university publication.
     "It is no doubt reasonable that K.S.U. should seek to maintain its image to potential students, alumni, and the general public," the judge wrote. "In light of the undisputedly poor quality of the yearbook, it is also reasonable that K.S.U. might cut its losses by refusing to distribute a university publication that might tarnish, rather than enhance, that image."
     In a dissent, Judge R. Guy Cole, Jr., rejected the majority's view that the yearbook was not a "public forum," and disagreed with the other judges' decision to apply the Hazelwood reasoning. "It is worth emphasizing that the Supreme Court in that case was addressing the scope of the First Amendment in the context of high school student publications," he wrote. "I believe that there is reason for courts to afford colleges and universities greater deference than they do high schools."
     All three judges rejected the students' assertion that their rights had been violated regarding the newspaper. The students had failed to show that the removal of the adviser had threatened the newspaper's staff in a way that violated their First Amendment rights, the judges said.
     Kentucky State's vice-president for university advancement, Hinfred McDuffie, said last week that the university was pleased with the judges' ruling. He reiterated the university's stance that the yearbook was not a "public forum," but he said that the institution's student newspaper "enjoys the same freedom of expression as other students at the university."
     D. Bruce Orwin, a lawyer for the two students who filed the lawsuit, said last week that they would ask the entire appeals court to review the decision.
     The decision in the case, which involved Kentucky State University, could have a ripple effect in other states. It is the first time that a judge has cited the the 1988 Supreme Court decision in a case involving a college newspaper.
     In Hazelwood School District v. Kuhlmeier, the Supreme Court said the content of a newspaper at a public high school could be censored by the school's administration. But the Court included a footnote that said, "We need not now decide whether the same degree of deference is appropriate with respect to school-sponsored activities at he college and university level."
     The Kentucky State case began in 1995, when two students said the institution had violated their First Amendment rights by refusing to distribute the student yearbook and by attempting to control the content of the student newspaper.
     University officials denied that they had tried to censor the student newspaper. They said the yearbook had been withheld because it focused on current events rather than university activities, left out the university's colors, and failed to identify students featured in photographs.
     Judge Joseph M. Hood wrote that Kentucky State "was entitled to exercise reasonable control over the yearbook," because the Hazelwood ruling had shown that a yearbook is not "a public forum" protected by the First Amendment.
     "It was reasonable for the administration to want the annual to explain who the students were in the pictures -- so that fifteen years from now, the students could look back and remember, for example, who the K.S.U. homecoming queen was," Judge Hood wrote, citing a part of the Hazelwood decision that says schools can constrain speech that does not meet high standards. "Moreover, it was reasonable for the administration to want the yearbook to focus mainly on .S.U."
     He also wrote that the students had failed to produce any evidence showing that the university had censored the student newspaper.
     Mark Goodman, of the Student Press Law Center, called the decision "troubling."
     "There are other schools that have informally made this argument, and now they will feel stronger backed with a court decision," he said. "This case is a threat to the college media."
     The judge should have placed more weight on rulings protecting free speech at colleges than on the Hazelwooddecision, Mr. Goodman said. "The judge completely ignored the fact that the Supreme Court has said it believes that colleges and universities are unique in the sense of free expression and are places where free expression should be protected."
     Bruce Edwards, a Kentucky State spokesman, praised the ruling and said the case had nothing to do with the First Amendment. "It was clearly a question of quality of the publication," he said.
     The student plaintiffs, Charles Kincaid and Capri Coffer, who sued on the basis that they had paid for the yearbook, could not be reached for comment.

[Editor's Note: The factual data cointained in the story was obtained from the archives of The Daily Republican Newspaper, The Kentucky State Uiversity, The Chronicle of Higher Education, and The Law News Network.]

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