In the fall of 1994, administrators at Kentucky State University confiscated all copies of the student yearbook citing, among other things, displeasure with the yearbook cover’s color, and transferred the student publication adviser to a secretarial position after she refused to censor material from the newspaper. Thus began one of the most important legal battles ever to confront America’s college student media.
The U.S. Court of Appeals for the Sixth Circuit issued its decision January 5, 2001, in Kincaid v. Gibson,the Kentucky State University censorship case.
By a 10-3 vote, the court reversed the lower court decision that had upheld the confiscation of the student yearbook. Further, the court’s majority rejected the lower court’s application of Hazelwood to college student media.
Facts of the case
By the fall of 1994, Kentucky State University (KSU) student publication adviser Laura Cullen and Vice President for Student Affairs Betty Gibson had what has been charitably described as a “chilly relationship.” Gibson was Cullen’s immediate supervisor from January 1992 until July 1994. At that time, because of a restructuring of university personnel, KSU Director of Student Life Leslie Thomas became Cullen’s immediate supervisor. Leslie reported to Gibson.
According to court documents, Gibson, beginning in the fall of 1993, had repeatedly told Cullen that she was unhappy with cartoons and letters to the editor critical of KSU administration published in the student newspaper, The Thorobred News.
On or about November 23, 1994, Gibson directed Cullen not to print a particular letter to the editor in the student newspaper. Cullen, as she had done on a number of occasions before, refused Gibson’s demand, telling Gibson that withholding the letter or ordering her students not to publish it would be a direct violation of the student editors’ First Amendment rights.
Five days later, on November 28, 1994, Cullen was relieved of her advising duties and assigned to “temporary duty” in the Office of Housing to perform secretarial duties. Cullen claims that this “transfer” was based on (1) her support of unionization, which Gibson opposed, and (2) her refusal to censor or otherwise control the student media. Gibson, on the other hand, said the move was made because (1) she had received a significant number of complaints regarding the quality of student publications, including excessive grammatical errors, poor quality of 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 the 1993-94 edition of the KSU student yearbook, The Thorobred, were delivered to the KSU Student Publications Office. The yearbooks were paid for with an estimated $9,000 in student activity fees. Prior to distribution, Gibson reviewed the yearbook and in consultation with KSU President Mary Smith ordered the confiscation of all copies, 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,” which she deemed “inappropriate,” (3) a lack of captions under photographs and (4) the inclusion of what she felt were too many photographs depicting current events and celebrities.
On December 20, 1994, after filing an internal grievance with KSU, Cullen was returned to her position as student publication adviser. In a memo from Gibson dated the same day, Cullen was given a list of “specific expectations ” regarding her job performance. Among them, Gibson told Cullen that: “(1) the student newspaper error rate must be reduced; (2) “more positive news is to be published; (3) there must be coverage of 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 Board before going to print….”
From the opinion
“…[T]he KSU officials’ confiscation of the yearbook violates the First Amendment, and the university has no constitutionally valid reason to withhold distribution of the 1992-94 Thorobred from KSU students from that era.”
Citing a consistent body of case law that college student media have relied upon for over three decades, the court’s ruling makes clear that the First Amendment remains a powerful protector of student free expression on America’s public college and university campuses.
In late February 2001, Kentucky State University agreed to release the yearbooks it had held since their confiscation in 1994.