U.S. Court of Appeals to hear college press censorship case on Thursday

ARLINGTON, Va. — A federal appeals court in Cincinnati will hear arguments tomorrow in a case that seriously threatens the First Amendment protections available to public college students and faculty.

The case, Kincaid v. Gibson, No. 98-5385, began after administrators at Kentucky State University in Frankfurt confiscated approximately 2,000 copies of the 1993-94 student-produced yearbook, The Thorobred, which remain locked in a university storeroom, and removed the student newspaper’s faculty adviser from her position after she refused to censor material from the paper critical of the university.

In a November 1997 decision, federal district court judge Joseph M. Hood ruled against students at the university, including the yearbook’s editor, who claimed KSU had violated their First Amendment rights. For the first time ever, Hood applied a 1988 Supreme Court decision that upheld a high school principal’s censorship of a student newspaper to a case involving censorship of the college press. Over the last decade, that decision, Hazelwood School District v. Kuhlmeier, has led to a sharp rise in the censorship of high school student publications. Under Hazelwood, school officials may censor most school-sponsored student publications if they can show that they have a “legitimate pedagogical” (educational) reason for their actions. The Supreme Court standard gives great deference to censorship decisions by school officials, allowing them to censor when they find material to be “ungrammatical,” “poorly written” “inappropriate,” or “inconsistent with the shared values of a civilized social order.”

Administrators at Kentucky State claimed that they confiscated the student yearbook because they were unhappy that the yearbook’s color (purple) did not match the school’s official colors. They also objected to the yearbook’s inclusion of a current events section, the lack of individual photo captions on candid shots and to what they described as a general lack of quality. Citing Hazelwood, Judge Hood ruled that these were sufficient reasons for KSU administrators to confiscate the yearbook.

Except for the trial court’s decision in this case, courts have consistently ruled that college journalists enjoy strong First Amendment protections similar to those afforded the commercial news media.

The district court’s decision has been sharply criticized by national journalism education groups. Representatives of every public college or university with an accredited journalism program in Kentucky, Michigan, Ohio and Tennessee (the states that make up the federal Sixth Circuit where the case will be heard) have joined in a friend-of-the-court brief asking that the lower court’s opinion be reversed. Two others friend-of-the-court briefs in support of the students have also been filed by civil rights and professional news media groups.

In addition to the threat to student journalism, many of those criticizing the lower court’s decision note that the Hazelwood decision has been used by a number of courts to substantially curtail the classroom speech of high school teachers and could affect college and university faculty members as well.

Oral arguments before the Sixth Circuit Court of Appeals are scheduled to begin at 10:30 a.m. Thursday, March 18, in the Potter Steward United States Courtroom (court officials say the argument could begin as soon as 9 a.m. if other cases on the court’s docket are cleared.) The three-judge appellate panel scheduled to hear the case includes Judge R. Guy Cole, Jr., Judge Alan E. Norris and Judge James L. Ryan.

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Mark Goodman, Executive DirectorStudent Press Law Center(703) 807-1904Additional information and updates regarding the case available at: http://www.splc.org/newsflashindex.html

Richard Goehler, journalism educators’s coalition attorneyFrost & Jacobs(513) 651-6711

Bruce Orwin, Attorney for Plaintiff Students(606) 678-4836

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

Office of the Court Clerk6th Circuit Court of Appeals(513) 564-7000

Images from the 1993-94 Thorobred yearbook

As far as we know, there is only one copy of the 1993-94 Thorobred yearbook that has not been locked in a storage room on the Kentucky State University campus. KSU administrators have stated that if they prevail in the current litigation, they intend to destroy the copies that they have confiscated. Here are some sample pages from the yearbook. They are a fair representation of the yearbook as a whole.