Decision frees college press from censorship

KENTUCKY — After seven years, the membersof the Kentucky State University class of 1994 will finally receive theiryearbooks.

KSU officials agreed to distribute the books inFebruary as part of a settlement with two students who sued the universityfor violating their First Amendment rights by confiscating the 1994 editionof the Thorobred.

Under the terms of the settlement, Kentucky Statewill attempt to reach 90 percent of the students eligible to receive theyearbook, which was funded with student activity fees. The university willalso pay the student plaintiffs $5,000 each plus $60,000 in attorney’sfees and costs.

The settlement follows a January decision in favorof the students by the full panel of judges of the U.S. Court of Appealsfor the Sixth Circuit in Kincaid v. Gibson, 236 F.3d 342 (6th Cir.2001). That ruling produced a collective sigh of relief among free-pressadvocates as two earlier decisions — by a three-judge panel of the SixthCircuit and a federal district court — had previously come down in favorof the university.

In the 10-3 ruling, the judges rejected the districtcourt’s decision, which applied a high school-based censorship standardto college student media.

Instead, the court said the yearbook constituteda limited public forum, and as such, KSU officials could not withhold itfrom distribution.

“KSU officials’ confiscation of the yearbooksviolates the First Amendment, and the university has no constitutionallyvalid reason to withhold distribution of the 1992-94 Thorobred fromKSU students from that era,” Judge R. Guy Cole said in the majority opinion.

The Jan. 6 ruling came after more than five yearsof legal battles that began in 1995 when Kentucky State students CapriCoffer and Charles Kincaid filed a lawsuit against Kentucky State University.Coffer, who edited the yearbook, and Kincaid, who had paid a mandatorystudent activity fee entitling him to a yearbook, argued that Betty Gibson,then vice president of student affairs, violated their First Amendmentrights when she seized all 717 copies of the yearbook and refused to distributethem.

Gibson said she objected to the color of the yearbook’scover, which was purple rather than the traditional school colors of greenand gold, its title, “Destination Unknown,” the inclusion of a currentevents section and a lack of captions for many of the photos.

Kentucky State officials contended they were onlyregulating the style and form of the books — not their content — whenthey prohibited their distribution. But the court called this argument”simply not credible.”

“The record makes clear that Gibson sought toregulate the content of the 1992-94 yearbook,” Cole said. “In additionto complaining about the yearbook’s color, lack of captions, and overallquality, Gibson withheld the yearbooks because she found the yearbook themeof ‘destination unknown’ inappropriate.”

The court also disputed Kentucky State’s assertionduring oral arguments that confiscation of the yearbooks was not a formof content alteration.

“Confiscation ranks with forced government speechas among the purest forms of content alteration,” Cole said in the decision.”There is little if any difference between hiding from public view thewords and pictures students use to portray their college experience, andforcing students to publish a state-sponsored script. In either case, thegovernment alters student expression by obliterating it.

“We will not sanction a reading of the First Amendmentthat permits government officials to censor expression in a limited publicforum in order to coerce speech that pleases the government,” Cole continued.”The KSU officials present no compelling reason to nullify Coffer’s expressionor to shield it from Kincaid’s view and, accordingly, the officials’ actionsviolate the Constitution.”

Frankfort, Ky., attorneys Bruce Orwin and WinterHuff represented Kincaid and Coffer on a pro bono basis. Orwin said theydiscounted their fees by 10 percent in order to settle the case with KSU.

In addition to the $70,000 Kentucky State paidin the settlement — and whatever funds officials will spend to locatethe students entitled to copies of the 1994 yearbook — the universityspent more than $40,000 in attorney’s fees and costs defending itself againstthe students’ charge that officials acted illegally when they confiscatedthe books.

“It could have been settled years ago and $100,000ago,” Kincaid said of the time and money KSU devoted to fighting the releaseof the yearbooks. “I never received an apology, although I did receivea check. I wish that it had never gone this far, but in retrospect I’mglad it did because it did leave a precedent.”

Coffer said she is particularly pleased that theyearbooks will finally be distributed because they were the result of herlabor.

“Under the conditions I was working with, thatwas the best that I could do,” she said. “I turned out that yearbook bymyself without a photographer, without copywriters, without anything. Thatwas the best that I could do so I do feel vindicated.”

Coffer, who left Kentucky State shortly afterthe yearbooks were confiscated, now lives in Pasadena, Calif. She saidshe is planning to apply to law school.

Orwin, who has fought the case from the beginning,said he and Huff initially took the case because there was no one elsewho was interested.

“I got into it and couldn’t let go,” he said.”It was like having a wolf by the ears.”

But he added he is relieved it is finally over.

“I’m sorry it took so long, but we pursued itas diligently as the dockets of the courts would let us,” he said. “I’mpleased with the way the case came out, and I sure want to get those booksdistributed.”

Despite the length of the court battle, Kincaidalso said the fight was worth it.

“I believe that it opens the door for other studentsto express themselves,” he said. “That’s a milestone in anybody’s lifewhen they receive a degree from a university, and what better way to lookback on those days than to open up a yearbook that maybe somebody signedthat you can show your kids or your grandkids and say, ‘I went to thisschool, and I thought this building was the neatest building in the world.I made more friends in this building than anywhere. This university hasgiven me an education that has caused me to go out and better myself.'”

Kincaid said he will use his yearbook to tellhis children about the importance of standing up for one’s rights.

“I’m going to tell them that [the university]had my property,” he said. “It was mine. It took me six years to get it,but it was well worth the fight. Stand up for what you believe in, andif you believe in it wholeheartedly, then don’t let anybody persuade youdifferently. If you back down at a particular point in your life, you alwayshave that doubt or regret: What would have been the outcome if I had reallystood up or had really believed? I really think that this was part of whatthis was all about. I just believed in it so wholeheartedly that I wasn’tgoing to let anybody persuade me differently.”

But for now, Kincaid cannot tell anyone anythingabout his yearbook because he is still waiting for Kentucky State to sendhim a copy.

“I would like to see it,” he said. “I would liketo see what this was all about.”

Jacqueline Bingham, a spokeswoman for KSU, saidthe university is in the process of sending out the yearbooks.

&startdateView a timeline of the Kincaid v. Gibsoncourt battle or read past stories from our archives.