U.S. Court of Appeals upholds confiscation of 2,000 student yearbooks at Kentucky State University

ARLINGTON, Va. — Citing “poor quality” anda purple cover, a federal appeals court in Cincinnati today upheldthe censorship and confiscation of 2,000 student yearbooks byofficials at Kentucky State University. The court also upheldthe school’s removal of the student newspaper’s faculty adviserfrom her position after she refused to censor material from thepaper critical of the university.

Today’sdecision in Kincaid v. Gibson, 1999 FED App. 0322P(6th Cir.), which could have an immediate impact on students workingon student media in Kentucky, Michigan, Ohio and Tennessee, isthe first time a federal court of appeals has used a 1988 SupremeCourt decision that upheld a high school principal’s censorshipof a student newspaper to justify censorship of the college press.Over the last decade, that decision, Hazelwood School Districtv. Kuhlmeier, has led to a sharp rise in the censorship ofhigh school student publications. Under Hazelwood, schoolofficials may censor school-sponsored student publications ifthey can show that they have a “legitimate pedagogical”(educational) reason for their actions. The Supreme Court standardgives great deference to censorship decisions by school officials,allowing them to censor when they find material to be “ungrammatical,””poorly written” “inappropriate,” or “inconsistentwith the shared values of a civilized social order.”

For more than thirty years prior to today’s decision, courts hadconsistently ruled that college journalists enjoyed First Amendmentprotections similar to those afforded the commercial news media.

The decision has left many who work with the student media stunned.

“This decision represents an almost 180-degree turn fromthe strong First Amendment protections that have traditionallybeen afforded public college student media,” said Mark Goodman,executive director of the Student Press Law Center.

“Make no mistake, if allowed to stand, the decision todaywill gut student journalism programs at some colleges and universities.We’ve seen that happen at a number of high schools in the elevenyears since Hazelwood was handed down — and we’ll seeit happen at the college level now.”

“Fortunately,” Goodman said, “the Sixth Circuit’sdecision is not the final word in this matter.”

The case began in 1994 after administrators at Kentucky StateUniversity in Frankfurt confiscated approximately 2,000 copiesof the 1993-94 student-produced yearbook, The Thorobred,which have remained locked in a university storeroom for almostfive years. At the same time, school officials transferred thestudent newspaper’s faculty adviser to a secretarial positionafter she refused to censor material from the paper critical ofthe university.

The Sixth Circuit’s decision upholds a November 1997 decisionby federal district court judge Joseph M. Hood who had ruled againststudents at the university, including the yearbook’s editor, whoclaimed KSU had violated their First Amendment rights.

Administrators at Kentucky State claimed that they confiscatedthe student yearbook because they were unhappy that the yearbook’scolor (purple) did not match the school’s official colors. Theyalso objected to the yearbook’s inclusion of a current eventssection and to what they described as a general lack of quality.Citing Hazelwood, Judge Hood had ruled that these weresufficient reasons for KSU administrators to confiscate the yearbook.

The district court’s decision was sharply criticized by nationaljournalism education groups. Representatives of every public collegeor university with an accredited public college journalism programin Kentucky, Michigan, Ohio and Tennessee (the states that makeup the federal Sixth Circuit where the case was heard) joinedin a friend-of-the-court brief filed last year asking that thelower court’s opinion be reversed. Two other friend-of-the-courtbriefs in support of the students were also filed by civil rightsand professional news media groups.

In reaching its decision today, the appeals court found that KentuckyState had not clearly established the yearbook as a public forum,which therefore allowed it to censor the publication based onthe Hazelwood standard.

“The determinative element of [determining forum status]…isthe intent of the school in chartering the publication,”Judge Alan E. Norris wrote for the majority.

“The Court in Hazelwood noted…that if the schooldid not intentionally create a public forum, then the publicationremains a nonpublic forum, and school officials may impose anyreasonable, non-viewpoint-based restriction on student speechexhibited therin,” Norris wrote.

The court recognized that while school officials had — untilthe yearbooks were confiscated — exercised no “hands-oncontrol” over the yearbook, that alone was not enough toestablish the publication as a forum.

Because the yearbook was not a public forum, the court concludedthat “it is no doubt reasonable that KSU should seek to maintainits image to potential students, alumni, and the general public.In light of the indisputedly poor quality of the yearbook, itis also reasonable that KSU might cuts its losses by refusingto distribute a university publication that might tarnish, ratherthan enhance, that image.”

That argument does not wash with some.

“When school officials are allowed to use student media asa public relations tool, it ceases to exist as a credible sourcefor teaching students about journalism, ” Goodman said.

In a dissent, Judge R. Guy Cole criticized the majority for failingto recognize the differences between high school and college studentsas well as the role of a student yearbook.

“A yearbook is a student publication constructed by students,intended for students. It reflects their perspective of the collegeexperience…,” Cole wrote.

A decison about what to do next has not yet been made, thoughit may be hard for the students to back down now.

“In this country we don’t — or at least we haven’t untilnow — allowed government officials to confiscate thousands ofcopies of an otherwise lawful publication because its cover waspurple or because it didn’t sing the praises of a state institution.I can’t imagine allowing such reprehensible conduct to go withouta fight to the end now,” said Mike Hiestand, staff attorneywith the Student Press Law Center.

Mike Hiestand, Staff AttorneyStudent Press Law Center(703) 807-1904

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

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

Hinfred McDuffy,Vice President for University AdvancementKentucky State University(502) 227-6760

The full decision is available at: http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=99a0322p.06

Images from the confiscated yearbook and other informationabout the case are available online at: