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

ARLINGTON, Va. — In a landmark ruling,a panel of federal appellate judges said today that Kentucky State Universityofficials violated the First Amendment when they confiscated the studentyearbook, the Thorobred,because of the book’s content and quality.In doing so, the court rejected the lower court’s application of a highschool-based censorship standard to expression by American college students.

“KSU officials’ confiscation of the yearbooks violates the First Amendmentand the university has no constitutionally valid reason to withhold distributionof the 1992-94 Thorobredfrom KSU students from that era,” wroteJudge R. Guy Cole for the majority.

Today’s 10-3 ruling in Kincaid v. Gibsonby a panel of judgesof the U.S. Court of Appeals for the Sixth Circuit in Cincinnati was beingwatched closely by both school administrators and student media aroundthe country. A contrary ruling could have given school officials significantleeway in censoring student news media and other forms of student expressionon campus.

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

Today’s ruling follows a September 1999 decision by a divided three-judgepanel of the Court of Appeals that found KSU officials had not violatedstudent First Amendment rights when they confiscated the student yearbookand transferred the student publications adviser to a secretarial positionafter she refused to censor material critical of the university in thestudent newspaper. The yearbooks, which school officials objected to inpart because the student editor chose to include a current events sectionand to make the cover purple instead of using the school colors, were neverdistributed and have been locked in a KSU storage room since their confiscationsix years ago.

In that decision, the court had said that a high school-based censorshipstandard adopted by the U.S. Supreme Court in its 1988Hazelwood SchoolDistrict v. Kuhlmeierdecision should also guide judges when determiningthe amount of legal protection for expression on the country’s public collegeand university campuses. The decision — the first such ruling of its kind– was in stark contrast to court decisions over the past 30 years thathave provided strong First Amendment protection to college student media.

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

In today’s decision, the majority noted a number of Supreme Court decisionsthat have found that the “university environment is the quintessential’marketplace of ideas’ which merits full, or indeed heightened, First Amendmentprotection” and rejected the court’s application of Hazelwoodtothe college yearbook at issue.

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

The court flatly rejected KSU’s argument that school officials wereentitled to confiscate the yearbook because they were disappointed withthe 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 permitsgovernment officials to censor expression in a limited public forum inorder to coerce speech that pleases the government.”

“It took some time, but this court finally got this case right,” Goodmansaid. “As this court’s decision indicates, the very idea that books havebeen locked away by government officials on a public university campusfor the past six years so that students cannot read them is more reminiscentof a third-world dictatorship than our American democracy. Kentucky StateUniversity will now have to live down its reputation as the universitythat attempted to bring an end to the free expression rights of collegestudents.

“I can only hope that this ruling will serve as a wake-up call to othercolleges and universities in the country that are inclined to censor thestudent press,” he said. “This is a resounding endorsement of the free-pressrights of college journalists.”

Kentucky State University officials have not yet said whether they willappeal the case or when or how they will distribute the yearbooks.  

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For more information contact:

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

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

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

Hinfred McDuffyVice President for University AdvancementKentucky 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:

The text of the decision is also available on the Sixth Circuit’s Website at: