National coalition urges appellate court to strike decision upholding university censorship

Cincinnati — Warning of a “profound threat” to free expression, a coalition that includes every major national organization of college journalism educators has filed a friend-of-the-court brief before the U.S. Court of Appeals for the Sixth Circuit urging it to reverse a lower court’s decision supporting censorship of the student press.

The coalition, led by the Arlington, Va.-based Student Press Law Center, includes national organizations of college journalists and university journalism professors as well as representatives from every accredited college journalism program in Kentucky, Michigan, Ohio and Tennessee (the four states within the jurisdiction of the Sixth Circuit Court). The group used its brief to condemn the extension of a high school-based censorship standard to college and university student media.

Such a standard, the coalition cautioned, is “antithetical to the freedom of expression long recognized to be the essence of the university campus.”

The case, Kincaid v. Gibson, Civ. No. 95-98 (E.D. Ky. Nov. 14, 1997), began over three years ago when officials at Kentucky State University removed the student newspaper’s faculty adviser after she refused to force students to focus on “positive” news about the school instead of dealing with all aspects of campus life. Administrators then confiscated — and continue to keep locked up — all copies of the 1992-94 student yearbook. They were dissatisfied with its content and presentation, including the color of the yearbook’s cover. Two KSU students, including the yearbook’s editor who was also a reporter for the newspaper, sued the school for infringement of First Amendment rights.

Last November, a federal district court judge threw out the students’ claim. In the first such ruling of its kind, Judge Joseph M. Hood found that a 1988 U.S. Supreme Court decision that upheld the censorship of a high school student newspaper was applicable to college student media as well. That decision, Hazelwood School District v. Kuhlmeier, drastically cut back on the free press rights of most high school student journalists. The Hazelwood decision allows public secondary school officials to censor school-sponsored student expression if they can show that their censorship is “reasonably related to legitimate pedagogical concerns.” For example, the Court said school officials could censor student publications that contained material school officials believed was “inconsistent with the shared values of a civilized social order.” The decision, which has been sharply criticized by journalism educators and civil rights groups for its vagueness, has led to a sharp increase in high school censorship.

“The shield of the First Amendment is at best a sieve when a school censoring decision can be justified simply by branding it a ‘legitimate pedagogical concern,'” the coalition’s brief states.

The Supreme Court’s decision in the Hazelwood case specifically refused to apply the ruling to college student expression. For over three decades, student journalists at public colleges and universities have enjoyed legal protections similar to those afforded the commercial news media. Courts have said that college administrators are allowed to censor student media only when they can demonstrate that some significant and imminent physical disruption of the campus will result from the publication’s content, a standard school officials have rarely been able to meet.

Unfortunately, student speech has not been the only target of censors. The brief refers to a growing number of courts that have relied on the Hazelwood decision to curtail the academic freedom rights of high school teachers to speak in their classrooms. Were Hazelwood extended to colleges and universities, the coalition warns, the results could be devastating.

“The censorship of curricula and the impingement of academic freedom that Hazelwood arguably could permit would cause irreversible damage to the venerable place occupied by academic institutions as the marketplace of ideas,” the coalition’s brief cautions.

The coalition’s brief was written by attorneys Richard Goehler, Jill Meyer Vollman and Ana Maria Merico-Stephens of the Cincinnati-based law firm of Frost & Jacobs.

Two other friend-of-the-court briefs have been filed in the case in support of the students. The first, filed on behalf of the American Civil Liberties Union, the American Association of University Professors and the Thomas Jefferson Center for Freedom of Expression, warned of the dangers the decision posed to student journalists, faculty and to “free expression and intellectual inquiry in the that quintessential marketplace of ideas, the public university.” The second brief was filed by the Society of Professional Journalists, the American Society of Newspaper Editors, the National Federation of Press Women and the Reporters Committee for Freedom of the Press. It warned of the impact the lower court’s decision could have on the ability of professional, commercial news organizations to recruit well-trained and educated young journalists.

Oral argument in the case before the Court of Appeals is expected to be scheduled for later this year.

A copy of the coalition’s brief is available at:

The full text of the district court’s ruling in Kincaid v. Gibson is available at:

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) 678-4836

Mary Smith, presidentKentucky State University(502) 227-6260

Coalition Participants:

Associated Collegiate PressAssociation for Education in Journalism and Mass Communication Association of Schools of Journalism and Mass Communication College Media Advisers Inc. Community College Journalism AssociationKentucky Intercollegiate Press AssociationSociety for Collegiate JournalistsSouthwestern Journalism Congress Student Press Law Center Texas Intercollegiate Press AssociationTexas Community College Press AssociationDepartment of Journalism and Mass Communications, Murray State UniversitySchool of Journalism and Telecommunications, University of Ky.Department of Journalism, Western Ky. UniversityFaculty, Department of Journalism, Central Mich. University*School of Journalism, Michigan State UniversityDepartment of Journalism, Bowling Green State UniversityThe Kent State University School of Journalism and Mass CommunicationE.W. Scripps School of Journalism, Ohio UniversityFaculty, School of Journalism and Communication, Ohio State University*Jack Mooney, Division of Journalism, East Tennessee State University*School of Journalism, Middle Tennessee State UniversityDan Lattimore, Chair, Department of Journalism, University of MemphisDwight Teeter, Dean, College of Communications, University of Tennessee*Communication Department, University of Tennessee at ChattanoogaDepartment of Communications, University of Tennessee at Martin

* Organization for purposes of identification only