For Immediate Release

Student Press Law Center Press Release
Posted: Wednesday, January 10, 1520 EST

Appeals court rules confiscation of Kentucky State University yearbooks violated First Amendment

Court rejects application of high school-based Hazelwood standard to college student media

ARLINGTON, Va. -- In a landmark ruling, a panel of federal appellate judges ruled Jan. 5 that Kentucky State University officials violated the First Amendment when they confiscated the student yearbook, the Thorobred, because of the book's content and quality. In doing so, the court rejected the lower court's application of a high school-based censorship standard to expression by American college students.

"KSU officials' confiscation of the yearbooks violates the First Amendment and the university has no constitutionally valid reason to withhold distribution of the 1992-94 Thorobred from KSU students from that era," wrote Judge R. Guy Cole for the majority. The 10-3 ruling in Kincaid v. Gibson by a panel of judges of the U.S. Court of Appeals for the Sixth Circuit in Cincinnati was being watched closely by both school administrators and student media around the country. A contrary ruling could have given school officials significant leeway in censoring student news media and other forms of student expression on campus.

A coalition of civil rights associations, media organizations and journalism education groups, including every accredited journalism program in Kentucky, Michigan, Ohio and Tennessee -- the states within the jurisdiction of the Sixth Circuit -- had urged the court to strike down KSU's actions as unconstitutional.

Friday's ruling follows a September 1999 decision by a divided three-judge panel of the Court of Appeals that found KSU officials had not violated student First Amendment rights when they confiscated the student yearbook and transferred the student publications adviser to a secretarial position after she refused to censor material critical of the university in the student newspaper. The yearbooks, which school officials objected to in part because the student editor chose to include a current events section and to make the cover purple instead of using the school colors, were never distributed and have been locked in a KSU storage room since their confiscation six years ago.

In that decision, the court had said that a high school-based censorship standard adopted by the U.S. Supreme Court in its 1988 Hazelwood School District v. Kuhlmeier decision should also guide judges when determining the amount of legal protection for expression on the country's public college and university campuses. The decision -- the first such ruling of its kind -- was in stark contrast to court decisions over the past 30 years that have provided strong First Amendment protection to college student media.

In a rarely exercised legal procedure, the Court of Appeals threw out its initial decision in November 1999 and agreed to rehear the case before a larger panel of judges.

In Friday's decision, the majority noted a number of Supreme Court decisions that have found that the "university environment is the quintessential 'marketplace of ideas' which merits full, or indeed heightened, First Amendment protection" and rejected the court's application of Hazelwood to the college yearbook at issue.

"Nearly 13 years to the day after the Supreme Court allowed school officials greater censorship authority over the expression of many high school students, the court today has drawn a clear and strong line saying that such censorship must stop at the college gate," said Student Press Law Center Executive Director Mark Goodman.

The court flatly rejected KSU's argument that school officials were entitled to confiscate the yearbook because they were disappointed with the publication's quality and content.

Calling confiscation "amongst the purest forms of content alteration," Judge Cole wrote: "We will not sanction a reading of the First Amendment that permits government officials to censor expression...in order to coerce speech that pleases the government."

Cole called KSU's confiscation of the yearbooks a "rash, arbitrary act, wholly out of proportion to the situation it was allegedly intended to address."

"Confiscation ranks with forced government speech as amongst the purest forms of content alteration," the opinion says. "There is little if any difference between hiding from public view the words and pictures students use to portray their college experience, and forcing students to publish a state-sponsored script. In either case, the government alters student expression by obliterating it."

"It took some time, but this court finally got this case right," Goodman said. "As this court's decision indicates, the very idea that books have been locked away by government officials on a public university campus for the past six years so that students cannot read them is more reminiscent of a third-world dictatorship than our American democracy. Kentucky State University will now have to live down its reputation as the university that attempted to bring an end to the free expression rights of college students. "I can only hope that this ruling will serve as a wake-up call to other colleges and universities in the country that are inclined to censor the student press," he said. "This is a resounding endorsement of the free-press rights of college journalists."

Officials for the university, which has so far paid more than $60,000 in legal fees to defend their actions, have not said when or how they will distribute the yearbooks. Attorneys for Kentucky State University have said they will suggest to the school that it may want to appeal the decision to the U.S. Supreme Court.

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For more information contact:

Mark Goodman, Executive Director
Student Press Law Center
(703) 807-1904

Richard Goehler, coalition attorney
Frost & Jacobs
(513) 651-6711

Bruce Orwin, Attorney for Plaintiff Students
(606) 678-4386

Hinfred McDuffy Vice President for University Advancement
Kentucky State University
(502) 227-6760

For more information on the case, including the text of today's decision, visit the Student Press Law Center's Web site at:
http://www.splc.org/newsflashes/kincaidinfo.html
The text of the decision is also available on the Sixth Circuit's Web site at:
http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=01a0005p.06

Founded in 1974, the nonprofit Student Press Law Center is the nation's only legal assistance organization devoted exclusively to protecting and educating the student media about their freedom of expression and freedom of information rights.

STUDENT PRESS LAW CENTER
1815 N. Fort Myer Drive, Suite 900
Arlington, VA 22209-1817
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(703) 807-1904
e-mail:splc@splc.org
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