The history behind the landmark case, Kincaid v. Gibson

By the fall of 1994, Kentucky State University (KSU) studentpublication adviser Laura Cullen and Vice President for StudentAffairs Betty Gibson had what has been charitably described asa “chilly relationship.” Gibson was Cullen’s immediatesupervisor from January 1992 until July 1994. At that time, becauseof a restructuring of university personnel, KSU Director of StudentLife Leslie Thomas became Cullen’s immediate supervisor. Lesliereported to Gibson.

According to court documents, Gibson, beginning in the fallof 1993, had repeatedly told Cullen that she was unhappy withcartoons and letters to the editor critical of KSU administrationpublished in the student newspaper, The Thorobred News.

On or about November 23, 1994, Gibson directed Cullen notto print a particular letter to the editor in the student newspaper.Cullen, as she had done on a number of occasions before, refusedGibson’s demand, telling Gibson that withholding the letter orordering her students not to publish it would be a direct violationof the student editors’ First Amendment rights.

Five days later, on November 28, 1994, Cullen was relievedof her advising duties and assigned to “temporary duty”in the Office of Housing to perform secretarial duties. Cullenclaims that this “transfer” was based on (1) her supportof unionization, which Gibson opposed, and (2) her refusal tocensor or otherwise control the student media. Gibson, on theother hand, said the move was made because (1) she had receiveda significant number of complaints regarding the quality of studentpublications, including excessive grammatical errors, poor qualityof photographs and unfair treatment of faculty and staff and(2) because the Office of Housing was shorthanded.

Also on November 28, 1994, approximately 2,000 copies of the1993-94 edition of the KSU student yearbook, The Thorobred,were delivered to the KSU Student Publications Office. The yearbookswere paid for with an estimated $9,000 in student activity fees.Prior to distribution, Gibson reviewed the yearbook and in consultationwith KSU President Mary Smith ordered the confiscation of allcopies, citing the yearbook’s overall lack of quality. Specifically,Gibson objected to: (1) the color of the yearbook’s cover (purple),which did not match the school’s official colors (green and gold),(2) the yearbook’s title “Destination Unknown,” whichshe deemed “inappropriate,” (3) a lack of captionsunder photographs and (4) the inclusion of what she felt weretoo many photographs depicting current events and celebrities.

On December 20, 1994, after filing an internal grievance withKSU, Cullen was returned to her position as student publicationadviser. In a memo from Gibson dated the same day, Cullen wasgiven a list of “specific expectations ” regardingher job performance. Among them, Gibson told Cullen that: “(1)the student newspaper error rate must be reduced; (2) “morepositive news is to be published; (3) there must be coverageof all campus events athletics, cultural, social and academic;(4) the quality of photographs published must be improved; (5)the paper must be reviewed by the Student Publications Boardbefore going to print….”


Case #1: Cullen v. Gibson, et al. (adviser case)Plain text

Case #2: Kincaid, et al. v. Gibson,et al. (student case) – Redtext

3/14/95 – Cullen files a complaint in the U.S. District Courtfor the Eastern District of Kentucky against Gibson, Smith andindividual members of the KSU Board of Regents, pursuant to 42USC §1983, alleging violation of her First (and 14th) Amendmentrights. Her complaint notes KSU’s action with respect to thestudent newspaper and yearbook and retaliatory action taken againsther for supporting unionization of the school’s non-academicemployees.

6/1/95 – Cullen files amended complaint.

6/2/95 – Judge Joseph M. Hood denies Cullen’s motion for preliminaryinjunction in which she sought to compel distribution of thestudent yearbooks.

7/17/95 – Judge Hood grants defendant’s motion to dismissclaims against KSU administration in their official capacities.

7/31/95 – Cullen voluntarily resigns from KSU.

8/25/95 – Capri Coffer, editor of the 1993-94 edition ofThe Thorobred yearbook and staff writer on The ThorobredNews and Charles Kincaid, a student at KSU, file amotion to intervene in Cullen v. Gibson.

10/20/95 – Judge Hood issues Memorandum Opinion and Orderdenying Kincaid and Coffer’s motion to intervene in Cullencase. Students’ motion to certify case as a class action is alsodenied.

Apx. 11/95 – KSU files motion for summary judgment.

11/22/95 – Kincaid and Coffer (hereinafter”students”) file suit against Gibson, Smith and theindividual members of the KSU Board of Regents alleging violationof their First and 14th Amendment rights with respect to administrativeaction taken against Cullen, the student newspaper and the studentyearbook. They also sue for breach of contract based on KSU’srefusal to distribute yearbooks for which they had paid a studentactivity fee. Finally, they ask that the court certify theirclaim as a class action on behalf of all KSU students.

12/11/95 – KSU files motion for to dismiss.

12/29/95 – Kincaid and Coffer file amendedcomplaint (clarified that KSU officials were being sued in theirindividual and official capacities).

4/4/96 – Judge Hood issues Memorandum Opinion and Order grantingKSU’s motion for summary judgment with respect to Cullen’s FirstAmendment claims regarding the student publications. In additionto finding that Cullen has no First Amendment claim of her own, the court also rules that Cullen lacks standing to assert aFirst Amendment claim on behalf of her students. The judge deniesKSU’s motion for summary judgment insofar as Cullen claims shewas transferred in retaliation for supporting unionization.

5/7/96 – Judge Hood grants Cullen’s motion for clarificationof 4/4/96 Memorandum Opinion and Order.

6/26/96 – Judge Hood issues MemorandumOpinion and Order in which he finds that Kincaid and Coffer havestanding to sue. Hood also denies KSU’s motion to dismiss students’First Amendment and breach of contract claims. He grants KSU’smotion to dismiss students’ 14th Amendment due process claim,their First Amendment free association claim and denies studentsrequest to certify claim as class action. He also rules thatstudents’ 12/29/95 amended complaint was improperly filed andorders it stricken.

7/5/96 – Students file motion to alter,amend, or vacate 6/26/96 Memorandum Opinion and Order.

7/16/96 – Cullen files motion to voluntarily dismiss FirstAmendment claim against KSU re: retaliation for her support ofunionization.

8/9/96 – Cullen files Notice of Appeal before Sixth CircuitU.S. Court of Appeals.

2/4/97 Judge Hood grants students’ motionto alter, amend or vacate 6/26/96 Memorandum and Opinion Orderinsofar as he ruled that their 12/29/95 amended complaint wasimproperly filed. He denies their motion with respect to allother claims.

6/19/97 – Students file motion for summaryjudgment.

6/20/97 KSU files motion for summaryjudgment.

8/5/97 – Oral arguments heard by Sixth Circuit in Cullenv. Gibson.

9/4/97 – Sixth Circuit U.S. Court of Appeals issues decisionaffirming district court’s dismissal of case. The court doesnot reach the substantive merits of the case but instead rulesthat because Cullen voluntarily resigned from KSU, the case ismoot. See Cullen v. Gibson, reported at: 124 F.3d 197(6th Cir. 1997).

Apx. 11/97 – Cullen files petition for certiorari with U.S.Supreme Court.

11/14/97 – Judge Hood issues MemorandumOpinion and Order granting KSU’s motion to dismiss. The courtfinds no “injury in fact” with respect to the studentnewspaper sufficient to support a First Amendment claim. He rules,in effect, that threatening to censor is not the same as actuallycensoring. He also rules that no harm resulted from Cullen’s”temporary transfer” because it was of limited duration.With respect to the student yearbook, Hood relies primarily onthe U.S. Supreme Court’s decision in Hazelwood v. Kuhlmeierto find that the yearbook was not a public forum. Again citingHazelwood, he finds that KSU’s censorship of the yearbookwas “reasonable.” Finally, citing the Eleventh Amendment,the court rules that the students could not bring a viable contractclaim against KSU officials in their official capacity; neithercould a claim be brought against the defendants in their individualcapacity because the judge found they had not acted in an arbitraryand capricious manner.

11/24/97 – Students file a Motion toAlter, Amend and Vacate Hood’s 11/14/97 Memorandum Opinion andOrder.

2/23/98 – U.S. Supreme Court denies Cullen’s petition forcertiorari.

## Cullen v. Gibson Closed ##

3/5/98 – Judge Hood denies students’Motion to Alter, Amend and Vacate 11/14/97 Memorandum Opinionand Order. Hood writes that he “finds Hazelwood tothe starting point” in the analysis of college student mediacensorship cases.

3/20/98 – Students file Notice of Appealbefore U.S. Sixth Circuit Court of Appeals.

Summer 1998 – Briefs filed before theSixth Circuit by parties and amici.

3/18/99 – Oral arguments heard by SixthCircuit Panel consisting of Judges James L. Ryan, Alan E. Norrisand R. Guy Cole, Jr..

9/8/99 – In a 2-1 decision, the SixthCircuit affirms the district court’s ruling. “The determinativeelement of [determining forum status]…is the intent of theschool in chartering the publication,” Judge Alan E. Norriswrote for the majority. In ruling that the KSU yearbook was nota public forum, the court concluded that “it is no doubtreasonable that KSU should seek to maintain its image to potentialstudents, alumni, and the general public. In light of the indisputedlypoor quality of the yearbook, it is also reasonable that KSUmight cuts its losses by refusing to distribute a university
publication that might tarnish, ratherthan enhance, that image.”

9/22/99 – Students file a Petition forRehearing En Banc before the full panel of judges on theSixth Circuit.

11/29/99 – Petition for rehearing enbanc granted by Sixth Circuit.

5/30/00 – En banc panel of Sixth Circuithears oral arguments.

1/6/01 – En banc panel of Sixth Circuit rules 10-3 that confiscation of yearbooks violated First Amendment.”KSU officials’ confiscation of the yearbooks violates theFirst Amendment and the university has no constitutionally validreason to withhold distribution of the 1992-94 Thorobred fromKSU students from that era,” writes Judge R. Guy Cole forthe majority. Case sent back to the District Court for a determinationof damages. Case citation: Kincaid v. Gibson, 236 F.3d 342 (6thCir. 2001)(en banc)

2/28/01 – KSU and students agree tosettlement. KSU agrees to release yearbooks and attempt to distributethem to former students. KSU also agrees to pay the student plaintiffs$5,000 each and attorney fees of $60,000.

## Kincaid v. Gibson Closed ##

STATUS (as of 3/1/00): Case closed. Yearbooks to be releasedto former KSU students.