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United States Court of Appeals,Sixth Circuit.

Charles KINCAID, individually and on behalf of all others similarlysituated; Capri Coffer, individually and on behalf of all others similarlysituated, Plaintiffs-Appellants,
v.
Betty GIBSON, et al., Defendants-Appellees.

236 F.3d 342 (6th Cir.)(en banc)

No. 98-5385.

Argued May 30, 2000.
Decided and Filed Jan. 5, 2001.

Ryan, Circuit Judge, concurred and filed statement.

Boggs, Circuit Judge, concurred in part, dissented in part and filed opinion.

Alan E. Norris, Circuit Judge, dissented and filed opinion.

*344 Winter R. Huff (argued and briefed), Law Offices of John G. Prather, Somerset, KY, D. Bruce Orwin (briefed), Somerset, KY, for Plaintiffs-Appellants.

J. Guthrie True (argued and briefed), Johnson, Judy, True & Guarnieri, Frankfort, KY, for defendants-Appellees.

Richard M. Goehler, Frost & Jacobs, Cincinnati, OH, for Amicus Curiae Student Press Law Center.

Ann K. Benfield, Louisville, KY, for Amici Curiae American Civil Liberties Union, American Civil Liberties Union of Kentucky, American Association of University Professors, Thomas Jefferson Center for the Protection of Free Expression, National Campaign for the Freedom of Expression, National Coalition Against Censorship, National Council of Teachers of English.

Michael J. Wahoske, Dorsey & Whitney, Minneapolis, MN, for Amici Curiae Society of Professional Journalists, American Society of Newspaper Editors, Reporters Committee for Freedom of the Press, National Federation of Press Women.

Before MARTIN, Chief Judge; MERRITT, RYAN, BOGGS, NORRIS, SUHRHEINRICH, SILER, BATCHELDER, DAUGHTREY, MOORE, COLE, CLAY, and GILMAN, Circuit Judges.

COLE, J., delivered the opinion of the court, in which BOYCE F. MARTIN, C.J., MERRITT, SILER, DAUGHTREY, MOORE, CLAY, and GILMAN, JJ., joined. RYAN, J. (p. 358), delivered a separate concurring opinion. BOGGS, J. (pp. 358-59), delivered a separate opinion concurring in part and dissenting in part. ALAN E. NORRIS, J. (p. 359), delivered a separate dissenting opinion, in which SUHRHEINRICH and BATCHELDER, JJ., joined.

>* * * * *

OPINION

COLE, Circuit Judge.

Plaintiffs-Appellants Charles Kincaid and Capri Coffer appealthe district court's grant of summary judgment upholding Defendants-Appellees'confiscation and ban on distribution of a college yearbook edited by Coffer.Upon en banc review, we determine that the KSU officials violated the FirstAmendment rights of Kincaid and Coffer. Accordingly, we REVERSEthe order of the district court and REMAND the case withinstructions to enter judgment in favor of Kincaid and Coffer and to determinethe relief to which they are entitled. See, e.g., Leila Hosp. and HealthCtr. v. Bowen, 873 F.2d 132, 134 (6th Cir.1989).

I. BACKGROUND

A. FactualBackground

At the timesrelevant to this case, both Kincaid and Coffer were registered students atKentucky State University ("KSU"), a public, state-funded university.Betty Gibson was KSU's Vice President for Student Affairs. KSU funded productionand distribution of The Thorobred, the student yearbook.(1)KSU students composed and produced The Thorobred, with limited advicefrom the university's student publications advisor, as discussed infra.

Coffer served as theeditor of the yearbook during the 1993-94 academic year. Although astudent-photographer and at least one other student assisted her at one point,Coffer organized and put together the yearbook herself after her staff memberslost interest in the project. Coffer endeavored to "do somethingdifferent" with the yearbook in order to "bring Kentucky StateUniversity into the nineties"; she also sought to "present a yearbookto the student population that was what they [had] never seen before." Tothese ends, Coffer created a purple cover using a material known as "rainshower foil stamp," and, for the first time, gave the yearbook a theme. Thetheme, "destination unknown," described the atmosphere of"uncertainty" that Coffer believed characterized the time; Cofferfound evidence of this uncertainty in students wondering "where are wegoing in our lives," in high unemployment rates, and in a currentcontroversy regarding whether KSU was going to become a community college.Coffer included pictures in the yearbook depicting events at KSU and in itssurrounding community, and political and current events in the nation and worldat large. The yearbook covered both the 1992-93 and 1993-94 academic yearsbecause the students working on the 1992-93 yearbook had fallen behind schedule.Although the yearbook was originally projected to contain 224 pages, Coffertestified that the final product contained only 128 pages, because she did nothave enough pictures to fill 224 pages and because the university administrationtook no interest in the publication. Coffer completed the yearbook severalthousand dollars under budget, and sent the yearbook to the printer in May orJune of 1994.

When the yearbookcame back from the printer in November 1994, Gibson objected to several aspectsof it, finding the publication to be of poor quality and"inappropriate." In particular, Gibson objected to the yearbook'spurple cover (KSU's school colors are green and gold), its "destinationunknown" theme, the lack of captions under many of the photos, and theinclusion of current events ostensibly unrelated to KSU. After consulting withKSU President Mary Smith and other unnamed university officials, Gibson andSmith decided to confiscate the yearbooks and to withhold them from the KSUcommunity. Gibson contacted Leslie Thomas, KSU's Director of Student Life, andinstructed her to secure the yearbooks so that they would not be distributed.Thomas contacted KSU's director for service management, who ensured that theyearbooks were secured. Although Gibson's intention was "perhaps [to]discard [the yearbooks]," Gibson's counsel indicated at oral argument thatthe yearbooks remain hidden away on KSU's campus.

B. ProceduralBackground

In November 1995,Kincaid and Coffer sued Gibson, Smith, and individual members of the KSU Boardof Regents under 42 U.S.C. [sec.] 1983, alleging that the university'sconfiscation of and failure to distribute the 1992-94 KSU student yearbookviolated their rights under the First and Fourteenth Amendments to the UnitedStates Constitution.(2) Kincaid and Coffer soughtdamages and injunctive relief.

Both parties movedfor summary judgment on the yearbook claim. The district court applied a forumanalysis to the students' First Amendment claim, and found that the KSU yearbookwas a nonpublic forum. See Perry Educ. Ass'n v. Perry Local Educators' Ass'n,460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983). The district courtreasoned that Kincaid and Coffer had "put forth no evidence that TheThorobred was intended to reach or communicate with anybody but KSUstudents," and held that "the yearbook was not intended to be ajournal of expression and communication in a public forum sense, but instead wasintended to be a journal of the 'goings on' in [a] particular year at KSU."Having found that the yearbook was not a public forum, the court held that theuniversity officials' refusal to distribute the yearbook "on the groundsthat the yearbook was not of proper quality and did not represent the school a[s]it should," was reasonable. Accordingly, the court granted the KSUofficials' motion for summary judgment and denied the students' motion. Both infinding that the KSU yearbook was a nonpublic forum and in finding that the KSUofficials' actions were reasonable, the district court relied in part upon HazelwoodSch. Dist. v. Kuhlmeier, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592(1988).(3)

A divided panel ofthis court affirmed the district court's opinion. See Kincaid v. Gibson,191 F.3d 719. We granted en banc review to determine whether the panel and thedistrict court erred in applying Hazelwood--a case that dealsexclusively with the First Amendment rights of students in a high school setting(4)--tothe university setting, and to examine whether the district court erred infinding that the student-plaintiffs failed as a matter of law to submitsufficient evidence to prove that the KSU yearbook is a limited public forumrather than a nonpublic forum.(5) For the reasonsthat follow, we hold that the KSU yearbook is a limited public forum, and thatKincaid and Coffer have presented sufficient evidence that the universityofficials violated their First Amendment rights to prevail as a matter of law. SeeFed.R.Civ.P. 56(c).

II. STANDARD OFREVIEW

> We review thedistrict court's grant of summary judgment de novo. See Greer v. UnitedStates, 207 F.3d 322, 326 (6th Cir.2000). Summary judgment isappropriate when "the pleadings, depositions, answers to interrogatories,and admissions on file, together with the affidavits, if any, show that there isno genuine issue as to any material fact and that the moving party is entitledto a judgment as a matter of law." Fed.R.Civ.P. 56(c). There is no disputeregarding the material facts of this case; indeed, each party insists that thefacts as presented to the district court require summary judgment in his or herfavor. We recognize that "[t]he fact that both parties make motions forsummary judgment, and each contends in support of his respective motion that nogenuine issue of fact exists, does not require the Court to rule that no factissue exists." Begnaud v. White, 170 F.2d 323, 327 (6thCir.1948); accord Greer, 207 F.3d at 326. Nonetheless, "'crossmotions for summary judgment do authorize the court to assume that there is noevidence which needs to be considered other than that which has been filed bythe parties.'" Greer, 207 F.3d at 326 (citing Harrison WesternCorp. v. Gulf Oil Co., 662 F.2d 690, 692 (10th Cir.1981). Thereis a substantial amount of testimony and documentary evidence in the recordbefore us. Thus, we agree with the parties that the facts as developed in thiscase are sufficient to decide the case in accordance with clearly establishedFirst Amendment law, and we find no material facts in dispute that prevent thedistrict court from granting summary judgment in favor of Kincaid and Coffer.

III. DISCUSSION

The issue before usis whether the university officials violated the First Amendment rights ofKincaid and Coffer by confiscating and failing to distribute the KSU studentyearbook. For the reasons that follow, we apply a forum analysis to the questionand hold that the KSU yearbook constitutes a limited (or "designated")public forum. Accordingly, we analyze the actions taken by the universityofficials with respect to the yearbook under strict scrutiny, and conclude thatthe officials' confiscation of the yearbooks violated Kincaid's and Coffer'sFirst Amendment rights.

A.Application of Public Forum Doctrine

We begin with thefundamental principle that there can be "no doubt that the First Amendmentrights of speech and association extend to the campuses of stateuniversities." Widmar v. Vincent, 454 U.S. 263, 268-69, 102 S.Ct.269, 70 L.Ed.2d 440 (1981). KSU is a state-funded, public university. See

Ky.Rev.Stat. Ann. [sec.] 164.290(2). As such, the actions KSU officials take intheir official capacities constitute state actions for purposes of FirstAmendment analysis. Further, the funds and materials that KSU allocates towardproduction of The Thorobred constitute state property. See UnitedFood & Commerical Workers Union (UFCWU), Local 1099 v. Southwest OhioRegional Transit Auth., 163 F.3d 341, 349 (6th Cir.1998). Byconfiscating the yearbooks at issue in this case, the KSU officials haverestricted access to state property used for expressive purposes. "TheSupreme Court has adopted a forum analysis for use in determining whether astate-imposed restriction on access to public property is constitutionallypermissible." Id. Accordingly, we find that forum analysis isappropriate in this case.

Although Kincaid andCoffer argue their case under the forum doctrine, they argue in the alternativethat forum analysis does not apply to the KSU yearbooks because "forumanalysis is only appropriate when the issue concerns the access sought by theproposed speaker," and that access is not at issue in this case.Appellants' Supp. Br. at 11-12. We disagree. It is true that "a speakermust seek access to public property or to private property dedicated to publicuse to evoke First Amendment concerns." See Cornelius v. NAACP LegalDefense and Educ. Fund, Inc., 473 U.S. 788, 801, 105 S.Ct. 3439, 87 L.Ed.2d567 (1985). Although neither Kincaid nor Coffer seeks to add words orphotographs to the yearbook at this point, university officials have cut off KSUstudents' access to read and possess it. Further, the Supreme Court has oftenapplied a forum analysis to expressive activity within educational settings. See,e.g., Rosenberger v. Rector and Visitors of Univ. of Virginia, 515 U.S.819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (applying forum analysis touniversity student activities fund); Perry, 460 U.S. 37, 103 S.Ct. 948,74 L.Ed.2d 794 (applying forum analysis to school district's internal mailsystem); Hazelwood, 484 U.S. 260, 108 S.Ct. 562, 98 L.Ed.2d 592(applying forum analysis to high school newspaper); Widmar, 454 U.S.263, 102 S.Ct. 269, 70 L.Ed.2d 440 (applying forum analysis to universitymeeting fora). Thus, we find that forum analysis is the appropriate frameworkunder which to proceed in this case.(6)

B. Type ofForum

There is no realdispute in this case that the forum in question is The Thorobreditself. The parties dispute strenuously, however, the appropriatecharacterization of The Thorobred under forum analysis. Kincaid andCoffer contend that the yearbook is a limited public forum, subject only toreasonable time, place, and manner regulations, and to only those content-basedregulations that are narrowly crafted to serve a compelling state interest. SeePerry, 460 U.S. at 46, 103 S.Ct. 948. The KSU officials respond that theyearbook is a nonpublic forum, subject to all reasonable regulations thatpreserve the yearbook's purpose. See id.

The Supreme Courthas recognized three types of fora. The first type is a traditional publicforum. A traditional public forum is a place "which by long tradition or bygovernment fiat ha[s] been devoted to assembly and debate," such as astreet or park. See id. at 45, 103 S.Ct. 948. In traditional publicfora, "the rights of the state to limit expressive activity are sharplycircumscribed": the government may enforce content-based restrictions onlyif they are narrowly drawn to serve a compelling interest, and may enforcecontent-neutral time, place, and manner regulations only if they are

"narrowly tailored to serve a significant government interest, and leaveopen ample alternative channels of communication." Id. The secondtype of forum has been alternatively described as a "limited publicforum," see Rosenberger, 515 U.S. at 829, 115 S.Ct. 2510, and as a"designated public forum," see Arkansas Educ. Television Comm'n v.Forbes, 523 U.S. 666, 679, 118 S.Ct. 1633, 140 L.Ed.2d 875 (1998). Thegovernment may open a limited public forum "for use by the public at largefor assembly and speech, for use by certain speakers, or for the discussion ofcertain subjects." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439.Although the government need not retain the open nature of a limited publicforum, "as long as it does so it is bound by the same standards as apply ina traditional public forum." Perry, 460 U.S. at 46, 103 S.Ct. 948.The third and final type of forum is a nonpublic forum. The government maycontrol access to a nonpublic forum "based on subject matter and speakeridentity so long as the distinctions drawn are reasonable in light of thepurpose served by the forum and are viewpoint neutral." Cornelius,473 U.S. at 806, 105 S.Ct. 3439; see also Perry, 460 U.S. at 46, 103S.Ct. 948.

The parties agreethat The Thorobred is not a traditional public forum. To determinewhether the yearbook is a limited public forum, the touchstone of our analysisis whether the government intended to open the forum at issue. See Cornelius,473 U.S. at 802, 105 S.Ct. 3439; accord Forbes, 523 U.S. at 677, 118S.Ct. 1633; Hazelwood, 484 U.S. at 267, 108 S.Ct. 562. To determinewhether the government intended to create a limited public forum, we look to thegovernment's policy and practice with respect to the forum, as well as to thenature of the property at issue and its "compatibility with expressiveactivity." Cornelius, 473 U.S. at 802, 105 S.Ct. 3439. Further,the context within which the forum is found is relevant to determining whetherthe government has created a limited public forum. See, e.g., Forbes,523 U.S. at 672-73, 118 S.Ct. 1633 (stating that "the public forum doctrineshould not be extended in a mechanical way to the very different context ofpublic television broadcasting."); Cornelius, 473 U.S. at 802, 105S.Ct. 3439 (stating that Court will not "ignore the special nature andfunction of the federal workplace in evaluating the limits that may be imposedon an organization's right to participate" in fundraising forum).Evaluating these factors--KSU's policy and practice, the nature of TheThorobred and its compatibility with expressive activity, and the contextin which the yearbook is found--we find clear evidence of KSU's intent to makethe yearbook a limited public forum.

1. Policy

KSU's written policytoward The Thorobred is found in a section of the student handbookentitled "Student Publications."(7) Inaddition to stating KSU's policy toward the yearbook, the handbook describes theuniversity's structure for oversight of the publication. The yearbook (alongwith the student newspaper) is "under the management of the StudentPublications Board." The Student Publications Board ("SPB"), inturn, is composed of students, faculty members, and university officials.(8)

Both the university's written policy and the structure it created to oversee theyearbook evidence KSU's intention that the yearbook serve as a limited publicforum.

First and foremost,the policy places editorial control of the yearbook in the hands of a studenteditor or editors. Although the policy provides for the establishment of minimumqualifications for student editors,(9) once astudent is appointed editor, editorial control of the yearbook's content belongsto her. This is made clear by the policy's description of the StudentPublications Advisor, a university employee. The policy directs that the SPB"shall require the use of an experienced advisor," but limits theadvisor's role to "assur[ing] that the . . . yearbook is not overwhelmed byineptitude and inexperience." Indeed, the policy expressly limits the typesof changes that the advisor may make to the yearbook:

Inorder to meet the responsible standards of journalism, an advisor may requirechanges in the form of materials submitted by students, but such changesmust deal only with the form or the time and manner of expressions rather thanalteration of content.

See App. I (emphasis added). This language is revealing: not only doesit direct the university's chosen advisor to refrain from editing the content ofthe yearbook, it also tracks the Supreme Court's description of the limitationson government regulation of expressive activity in a limited public forum. SeePerry, 460 U.S. at 46, 103 S.Ct. 948 ("Reasonable time, place andmanner regulations are permissible, and a content-based prohibition must benarrowly-drawn to effectuate a compelling state interest."). KSU's intentto limit its own oversight to time, place, and manner aspects of the yearbook isalso seen in the policy's treatment of the SPB. The policy declares that one ofthe duties of the SBP is to "[a]pprove the written publications policy ofeach student publication, including such items as purpose, size, quantitycontrols, and time, place and manner of distribution."(10)This language reiterates the university's intent to limit its oversight of theyearbook to general and administrative matters, and to cede authority over theyearbook's content to the students who published it. Finally, the publicationspolicy opens with language that indicates that the expressive activity containedin student publications is to be largely unrestrained: "The Board ofRegents respects the integrity of student publications and the press, and therights to exist in an atmosphere of free and responsible discussion and ofintellectual exploration." Such self-imposed restraint is strong evidenceof KSU's intent to create a limited public forum, rather than to reserve toitself the right to edit or determine The Thorobred's content.

The KSU officialsargue that the handbook policy shows the university's intent to retain, ratherthan relinquish, control over the yearbook's content. They point in particularto the fact that the policy requires a disclaimer to be placed on the studentnewspaper--but not on the yearbook--as evidence of the university's intent toretain control over the content of the yearbook.(11)Such reasoning relies upon a negative inference: in other words, the fact thatthe policy fails to require a disclaimer to be placed upon the yearbookpurportedly implies that the yearbook is "an 'official' organ ofthe University," because the university requires a disclaimer on thenewspaper, and the newspaper is not such an official organ. This ishardly persuasive. Were we to follow the logic behind this conclusion, we mustalso conclude that the university has forgone all standards of quality controlwith relation to the yearbook. After all, the publications policy states minimumstandards of quality control for the newspaper, but none for the yearbook.(12)Yet to concede that would require the university officials to concede theirentire argument--Gibson argues on appeal that the basis for confiscating theyearbooks is their allegedly "poor quality." Rather than engage insuch inferential gymnastics, we read the university's policy in astraightforward manner. For the reasons discussed, supra, KSU's policyleaves room for only one conclusion: that the university intended to open theyearbook as a limited public forum.

2. Practice

In addition toexamining KSU's stated policy, we must examine the university's actual practiceto determine whether it truly intended to create a limited public forum in TheThorobred. Indeed, we have noted that "'actual practice speaks louderthan words'" in determining whether the government intended to create alimited public forum. See UFCWU, 163 F.3d at 353 (quoting GraceBible Fellowship, Inc. v. Maine School Admin. Dist. No. 5, 941 F.2d 45, 47(1st Cir.1991)). The record before us contains substantial evidencefrom varied sources that the SPB followed its stated "hands off"

policy in actual practice. Coffer testified without contradiction that VicePresident Gibson--who Coffer described as a "friend[ ]" with whom shewas "on excellent terms"--"never expressed any concern about whatthe content might be in the yearbook" prior to its publication, but ratherlimited her concerns to the yearbook's release date. Nor did the SPB exerciseoversight of the yearbook's content. Laura Jo Cullen, the university'spublications advisor to the yearbook and an ex officio member of the SPB,testified that the SPB limited its oversight of the yearbook to issues such asadvertising rates and selection of editors, and that in the time during whichshe had been associated with the yearbook,(13)the Board had never attempted to control the content of the yearbook. LeslieThomas, KSU's Director of Student Life and another member of the SPB, testifiedthat the SPB exercised minimal oversight of the yearbook in actual practice:"We just always dealt with the newspaper so I guess that was the majorfocus." Thomas also testified that it was the student editor rather thanthe SPB who determined the content of the yearbook. Thus, the record before usis clear that, in actual practice, student editors--not KSU officials, not thestudent publications advisor, and not the SPB--determined the content of KSU'sstudent yearbook.

3. Nature ofthe Property and Compatibility with Expressive Activity

In addition to theuniversity's policy and practice, an examination of the nature of the forum atissue and its compatibility with expressive activity further indicates that KSUintended to open The Thorobred to the student editors as a limitedpublic forum. The KSU yearbook is a student publication that, by its verynature, exists for the purpose of expressive activity. There can be no seriousargument about the fact that, in its most basic form, the yearbook serves as aforum in which student editors present pictures, captions, and other writtenmaterial, and that these materials constitute expression for purposes of theFirst Amendment. As a creative publication, the yearbook is easily distinguishedfrom other government fora whose natures are not so compatible with freeexpression. See, e.g., Cornelius, 473 U.S. at 805, 105 S.Ct. 3439(finding that nature of government property at issue indicates that fundraisingforum in federal workplace is nonpublic forum); Jones v. North CarolinaPrisoners' Labor Union, Inc., 433 U.S. 119, 134, 97 S.Ct. 2532, 53 L.Ed.2d629 (1977) (finding that prison is a nonpublic forum); Greer v. Spock,424 U.S. 828, 838, 96 S.Ct. 1211, 47 L.Ed.2d 505 (1976) (holding that militaryinstallation is not a public forum). Nor is The Thorobred aclosely-monitored classroom activity in which an instructor assigns studenteditors a grade, or in which a university official edits content. SeeHazelwood, 484 U.S. at 268-69, 108 S.Ct. 562. The student handbook itselfdescribes the yearbook as a "student publication" that should

"exist in an atmosphere of free and responsible discussion and ofintellectual exploration."(14) It isdifficult to conceive of a forum whose nature is more compatible withexpression.

4. Context

We are alsopersuaded that the context within which this case arises indicates that TheThorobred constitutes a limited public forum. The university is a specialplace for purposes of First Amendment jurisprudence. The danger of"chilling . . . individual thought and expression . . . is especially realin the University setting, where the State acts against a background andtradition of thought and experiment that is at the center of our intellectualand philosophic tradition." Rosenberger, 515 U.S. at 835-36, 115S.Ct. 2510 (citing cases); see also Widmar, 454 U.S. at 267 n. 5, 102S.Ct. 269 ("This Court has recognized that the campus of a publicuniversity, at least for its students, possesses many of the characteristics ofa public forum."). The university environment is the quintessential

"marketplace of ideas," which merits full, or indeed heightened, FirstAmendment protection. See Healy v. James, 408 U.S. 169, 180, 92 S.Ct.2338, 33 L.Ed.2d 266 (1972) (stating that the "vigilant protection ofconstitutional freedoms is nowhere more vital than in the community of Americanschools" (quotation marks and citation omitted)). In addition to the natureof the university setting, we find it relevant that the editors of TheThorobred and its readers are likely to be young adults--Kincaid himselfwas thirty-seven at the time of his March 1997 deposition. Thus, there can be nojustification for suppressing the yearbook on the grounds that it might be"unsuitable for immature audiences." Compare Hazelwood, 484U.S. at 271, 108 S.Ct. 562 (footnote omitted), with Widmar, 454 U.S. at274 n. 14, 102 S.Ct. 269 ("University students are, of course, youngadults. They are less impressionable than younger students . . . .").Accordingly, we find that the fact that the forum at issue arises in theuniversity context mitigates in favor of finding that the yearbook is a limitedpublic forum.

5. KSUOfficials' Arguments

The KSU officialsdispute this substantial evidence of the university's intent to create a limitedpublic forum in the student yearbook. They argue that a limited public forumcannot exist unless the government has opened the forum at issue for"indiscriminate use by the general public." The district court agreed,concluding that the yearbook was a nonpublic forum by reasoning that Kincaid andCoffer had "put forth no evidence that The Thorobred was intendedto reach or communicate with anybody but KSU students." This reasoningbadly distorts a basic tenet of public forum law. It is true that oneof the ways in which the government may create or designate a public forum is byopening the forum "for indiscriminate use by the general public." SeePerry, 460 U.S. at 47, 103 S.Ct. 948. But the government may create alimited public forum in other ways as well: "a public forum may be createdby government designation of a place or channel of communication for use by thepublic at large for assembly and speech, for use by certain speakers, or

for the discussion of certain subjects." Cornelius, 473 U.S. at802, 105 S.Ct. 3439 (emphasis added); see also Hazelwood, 484 U.S. at267, 108 S.Ct. 562 ("[High] school facilities may be deemed to be publicforums only if school authorities have 'by policy or by practice' opened thefacilities 'for indiscriminate use by the general public,' or by somesegment of the public, such as student organizations." (citationsomitted and emphasis added)). Thus, the proposition put forth by the universityofficials and relied upon by the district court--i.e., that thegovernment must open a forum for indiscriminate use by the general public inorder to create a designated public forum--is erroneous.

The KSU officialsfurther argue that only select individuals had access to The Thorobred,and that "[a] designated public forum is not created when the governmentallows selective access for individual speakers rather than general access for aclass of speakers." See Forbes, 523 U.S. at 679, 118 S.Ct. 1633.In an attempt to bring The Thorobred under this rule, the officialspoint out that KSU limited access to the yearbook to the yearbook staff, which,in this case, was comprised of only Coffer. The officials note additionally thatKSU's student handbook imposes certain minimum requirements--such as a minimumgrade point average or successful completion of a journalism course--uponmembers of the yearbook's board of editors, and that there is no evidence thatthe student body as a whole may contribute to the yearbook. The KSU officialsagain misinterpret First Amendment forum law. There is a "distinctionbetween 'general access,' which indicates that the property is a designatedpublic forum, and 'selective access,' which indicates that the property is anonpublic forum." Forbes, 523 U.S. at 679, 118 S.Ct. 1633(citations omitted). General access is defined as the situation in which thegovernment "makes its property generally available to a certain classof speakers." Id. (emphasis added). Selective access occurswhen the government "does no more than reserve eligibility for access tothe forum to a particular class of speakers, whose members must then, asindividuals, 'obtain permission' to use it." Id. (emphasis addedand citation omitted). In the instant case, KSU's policy and practice indicatethat the university intended to designate the yearbook as a public forum forthose students who became editors of the yearbook--in other words, the studenteditors composed the "class of speakers" for which the universitydesignated the yearbook as a limited public forum. These editors were under noobligation to "obtain permission" each time they sought to access theyearbook--indeed, the policy and practice of the university was to give thestudent editors exclusive control over the content of The Thorobred.Thus, the student editors had "general access" to the yearbook. SeeForbes, 523 U.S. at 679, 118 S.Ct. 1633. This is consistent with ourfinding that the yearbook constitutes a limited public forum for that particularclass.(15)

In sum, our reviewof KSU's policy and practice with regard to The Thorobred, the natureof the yearbook and its compatibility with expressive activity, and theuniversity context in which the yearbook is created and distributed, all providestrong evidence of the university's intent to designate the yearbook as alimited public forum. Accordingly, we must determine whether the universityofficials' actions with respect to the yearbook were constitutional.

C.Constitutionality of University Officials' Actions

As discussed, supra,the government may impose only reasonable time, place, and manner regulations,and content-based regulations that are narrowly drawn to effectuate a compellingstate interest, on expressive activity in a limited public forum. See Perry,460 U.S. at 46, 103 S.Ct. 948. In addition, as with all manner of fora, thegovernment may not suppress expression on the basis that state officials opposea speaker's view. See id. For the following reasons, we hold that theactions taken by the KSU officials ran afoul of these restrictions on governmentaction.

Upon their returnfrom the printer, the 1992-94 yearbooks were delivered to the office of LauraCullen, the student publications advisor. Before they could be distributed toKincaid and other KSU students, Gibson ordered Leslie Thomas to have themsecured; Thomas complied, and, without any notification or explanation toCullen, the yearbooks were spirited away. To this day--nearly six years afterthe yearbooks returned from the printer--the university refuses to distributethem. This is not a reasonable time, place, or manner regulation of expressiveactivity. See Perry, 460 U.S. at 46, 103 S.Ct. 948; see also Papishv. Board of Curators of the Univ. of Missouri, 410 U.S. 667, 670, 93 S.Ct.1197, 35 L.Ed.2d 618 (1973) (holding that university's expulsion of graduatestudent for distributing on campus a newspaper containing indecent speechviolated First Amendment because she "was expelled because of thedisapproved content of the newspaper rather than the time, place, ormanner of its distribution." (italics in original; footnote omitted). Noris it a narrowly crafted regulation designed to preserve a compelling stateinterest. See Perry, 460 U.S. at 46, 103 S.Ct. 948. Rather, wholesaleconfiscation of printed materials which the state feels reflect poorly on itsinstitutions is as broadly sweeping a regulation as the state might muster.Further, the university officials' action leaves open no alternative grounds forsimilar expressive activity. See id. at 45, 103 S.Ct. 948. The recordcontains no other student forum for recording words and pictures to reflect theexperience of KSU students during the 1992 through 1994 school years. Indeed,the likelihood of the existence of any such alternative forum at this late date,when virtually all of the students who were at KSU in the early 1990s will havesurely moved on, is extraordinarily slim. Accordingly, the KSU officials'confiscation of the yearbooks violates the First Amendment, and the universityhas no constitutionally valid reason to withhold distribution of the 1992-94 Thorobred

from KSU students from that era.

The KSU officialsargue that withholding the yearbooks is excusable because they were regulatingthe style and form of the yearbooks rather than their content. At oral argument,counsel for the officials argued that the record contains no evidencethat the officials withheld distribution of the yearbooks based on content, orthat they altered the content of the yearbooks. This argument is simply notcredible. First, the record makes clear that Gibson sought to regulate thecontent of the 1992-94 yearbook: in addition to complaining about the yearbook'scolor, lack of captions, and overall quality, Gibson withheld the yearbooksbecause she found the yearbook theme of "destination unknown"inappropriate. Gibson also disapproved of the inclusion of pictures of currentevents, and testified that "[t]here were a lot of pictures in the back ofthe book that . . . to me, looked like a Life magazine." Gibsonfurther stated that the inclusion of pictures of current events "was notexactly what I thought it should have been, and it wasn't what other people whoviewed it thought it should have been." And after the yearbooks came backfrom the printer, Gibson complained to Cullen that "[s]everal persons havereceived the book, and are thoroughly disappointed at the quality andcontent." Thus, it is quite clear that Gibson attempted to regulate thecontent of The Thorobred once it was printed.

The officials'argument also fails because they have, in effect, altered The Thorobred.Confiscation ranks with forced government speech as amongst the purest forms ofcontent alteration. There is little if any difference between hiding from publicview the words and pictures students use to portray their college experience,and forcing students to publish a state-sponsored script. In either case, thegovernment alters student expression by obliterating it. We will not sanction areading of the First Amendment that permits government officials to censorexpression in a limited public forum in order to coerce speech that pleases thegovernment. The KSU officials present no compelling reason to nullify Coffer'sexpression or to shield it from Kincaid's view and, accordingly, the officials'actions violate the Constitution. See Perry, 460 U.S. at 46, 103 S.Ct.948.

Even were we toassume, as the KSU officials argue, that the yearbook was a nonpublic forum,confiscation of the yearbook would still violate Kincaid's and Coffer's freespeech rights. Although the government may act to preserve a nonpublic forum forits intended purposes, its regulation of speech must nonetheless be reasonable,and it must not attempt to suppress expression based on the speaker's viewpoint.See Perry, 460 U.S. at 46, 103 S.Ct. 948. The actions taken by the KSUofficials fail under even this relaxed standard.

In arguing thattheir confiscation of the yearbook was reasonable to preserve the forum'spurpose, see id., the officials adopt a portion of Coffer's testimonyas a statement of the yearbook's purpose: "It's something that theuniversity provides as a record for that year, a pictorial record for thatyear."(16) The officials then argue thatbecause the yearbook was only 128 pages--about half its intended length--andcontained pictures that lacked captions, it failed to fulfill its purpose.Because the yearbook failed to fulfill its intended purpose, the argument goes,the university's confiscation of the yearbooks was reasonable. The universityofficials acknowledge, however, that Coffer explained elsewhere in her testimonythat the yearbook was intended to be "a collection of pictures thatdepicted what went on at Kentucky State University, around the community thatKentucky State University set in, the state and the world." There is nodispute that the yearbook included pictures of a wide range of individuals andevents. Indeed, one of Gibson's main gripes with the yearbook was that itincluded pictures of current events and celebrities, and "[n]umerouspictures of Ross Perot, Bill Clinton, the Pope, and lots of people."(17)

Thus, the yearbook appears to have fulfilled the purpose expressed by itseditor.

More important, theKSU officials' actions were not reasonable because they were arbitrary andconflicted with the university's own stated policy. The university'spublications policy states that "the Thorobred yearbook shall be under themanagement of the Student Publications Board." Yet Thomas testified thatneither Gibson nor any other KSU administrators discussed with the SPB thedrastic act of confiscating the yearbooks. Further, the university's policy gaveto Cullen the power to "require changes in the form of materials submittedby students [that] . . . deal . . . with the form or the time and manner ofexpressions." Yet, the KSU officials never even consulted Cullen, thestudent publications advisor, before they seized the yearbooks. In fact, Coffertestified that Cullen had helped her come up with the yearbook's apparentlycontentious theme and pick out its allegedly scandalous cover. Finally, theuniversity released the subsequent (i.e., 1994-95) yearbook, despitethe fact that it was, in Gibson's own estimation, only "a tad better thanthe previous one," i.e., the yearbook at issue in this case.(18)

These facts show without doubt that the university's confiscation of theyearbooks was anything but reasonable: rather, it was a rash, arbitrary act,wholly out of proportion to the situation it was allegedly intended to address.

We note that KSU'ssuppression of the yearbook smacks of viewpoint discrimination as well. Theuniversity officials based their confiscation of the yearbook in part upon theparticular theme chosen by Coffer, "destination unknown." Coffercharacterized that theme, which she described in the yearbook itself, as"my opinion as a student regarding the . . . overall studentpopulation." Coffer's choice of theme is a classic illustration of what wemean when we refer to a speaker's "viewpoint." The universityofficials also based their confiscation of the yearbooks on the fact that thesome of its pictures captured particular, well-known individuals whom theydeemed to be out of place in a student yearbook. Kincaid summarized the basicpremise of First Amendment viewpoint jurisprudence when he testified, "[a]picture that may be relevant to me may be something that would be garbage toyou." We might add that in a traditional, limited, or nonpublic forum,state officials may not expunge even "garbage" if it represents aspeaker's viewpoint. See Perry, 460 U.S. at 46, 103 S.Ct. 948. Finally,the yearbook contained written segments which Coffer described as stating heropinions on various matters. Because the government may not regulate even anonpublic forum based upon the speaker's viewpoint, see id., andbecause an editor's choice of theme, selection of particular pictures, andexpression of opinions are clear examples of the editor's viewpoint, the KSUofficials' actions violated the First Amendment under a nonpublic forum analysisas well as a limited public forum analysis. See Rosenberger, 515 U.S.at 829, 115 S.Ct. 2510 ("The government must abstain from regulating speechwhen the specific motivating ideology or the opinion or perspective of thespeaker is the rationale for the restriction.").

IV. CONCLUSION

The district courterred by granting summary judgment to the university officials and denying it toKincaid and Coffer because the record clearly shows KSU's intent to designate TheThorobred as a limited public forum. Specifically, the district court erredin concluding that the yearbook was a nonpublic forum on the basis that Kincaidand Coffer "put forth no evidence that The Thorobred was intendedto reach or communicate with anybody but KSU students." This reasoningsimply misapplies well-established public forum law. The district court furthererred in concluding that "the yearbook was not intended to be a journal ofexpression and communication in a public forum sense, but instead to be ajournal of the 'goings on' in [a] particular year at KSU." Given KSU'sstated policy and practice with regard to the yearbook, the nature of theyearbook and its compatibility with expressive activity, and the universitycontext in which the yearbook is published, there can be no question that TheThorobred is a "journal of expression and communication in the publicforum sense." The university's confiscation of this journal of expressionwas arbitrary and unreasonable. As such, it violated Kincaid's and Coffer'sFirst Amendment rights.

In light of theclearly established contours of the public forum doctrine and the substantiallydeveloped factual record in this case, the district court should have denied theKSU officials' motion for summary judgment and granted Kincaid's and Coffer'ssummary judgment motion. Accordingly, we REVERSE the judgmentof the district court and REMAND the case with instructions toenter judgment in favor of Kincaid and Coffer, and to determine the relief towhich they are entitled.

* * * * *

[Attachment (Appendix I) and concurringand dissenting opinions are omitted.]

__________________

1. Both Kincaid andCoffer assert that they, along with all other KSU students, paid a mandatoryeighty-dollar student activity fee at the beginning of the 1993-94 school yearwhich covered the costs of supplying each KSU student with a copy of TheThorobred. In her deposition, Gibson stated that the student activity feedid not fund the yearbook, but rather that the yearbook was funded by generalrevenue. This difference of opinion is not materially related to the dispute athand. Because the parties agree that the yearbook was funded by the university,and because the university is a state-funded institution, Kincaid and Cofferhave First Amendment rights under a forum analysis as detailed infra.

2. Kincaid andCoffer raised several other claims, which are not before us on appeal. SeeKincaid v. Gibson, 191 F.3d 719, 724-25 (6th Cir.1999), vacatedby 197 F.3d 828 (6th Cir.1999).

3. In Hazelwood,the Court held that a newspaper published by a public high school journalismclass was a nonpublic forum, 484 U.S. at 270, 108 S.Ct. 562, and that schoolofficials' regulation of the content of the paper was reasonably related tolegitimate pedagogical concerns, id. at 273, 108 S.Ct. 562.

4. See Hazelwood,484 U.S. at 273 n. 7, 108 S.Ct. 562 ("We need not now decide whether thesame degree of deference is appropriate with respect to school-sponsoredexpressive activities at the college and university level."); see alsoBoard of Regents of the Univ. of Wisconsin Sys. v. Southworth, 529 U.S.217, 120 S.Ct. 1346, 1359 n. 4, 146 L.Ed.2d 193 (2000) (Souter, J., concurringin the judgment) ("[our] cases dealing with the right of teachinginstitutions to limit expressive freedom of students have been confined to highschools, whose students and their school's relation to them are different and atleast arguably distinguishable from their counterparts in collegeeducation." (citations omitted)).

5. The partiesessentially agree that Hazelwood applies only marginally to this case.Kincaid and Coffer argue that Hazelwood is factually inapposite to thecase at hand; the KSU officials argue that the district court relied upon Hazelwoodonly for guidance in applying forum analysis to student publications. Because wefind that a forum analysis requires that the yearbook be analyzed as a limitedpublic forum--rather than a nonpublic forum--we agree with the parties that Hazelwoodhas little application to this case. Cf. Student Government Ass'n v. Boardof Trustees of the Univ. of Massachusetts, 868 F.2d 473, 480 n. 6 (1stCir.1989) (stating that Hazelwood "is not applicable to collegenewspapers.").

6. Our decision toapply the forum doctrine to the student yearbook at issue in this case has nobearing on the question of whether and the extent to which a public universitymay alter the content of a student newspaper. See, e.g., Stanley v. Magrath,719 F.2d 279 (8th Cir.1983) (finding violation of students' FirstAmendment rights to free expression where university cut student newspaper'sfunding at least in part on the basis that it disapproved of paper's content); Schiffv. Williams, 519 F.2d 257, 260 (5th Cir.1975) (holding that"the right of free speech embodied in the publication of a college studentnewspaper cannot be controlled except under special circumstances"); Joynerv. Whiting, 477 F.2d 456, 460 (4th Cir.1973) (stating that"if a college has a student newspaper, its publication cannot be suppressedbecause college officials dislike its editorial comment"); Antonelli v.Hammond, 308 F.Supp. 1329 (D.Mass.1970) (holding that universityrequirement that all material to be published in student newspaper be previewedby university administrators violated students' rights to free expression).Likewise, we note that a college yearbook with features akin to a universitystudent newspaper might be analyzed under a framework other than the forumframework.

7. The StudentPublications policy, which is reproduced in its entirety at Appendix I of thisopinion, also covers the Thorobred News, KSU's student newspaper. Thenewspaper is not at issue before the en banc panel.

8. The relevantportion of the Student Handbook states:

TheStudent Publications Board membership shall consist of two members of thefaculty, one of whom shall serve as chairperson; the editor of the ThorobredNews, the editor of the Thorobred Yearbook, two student staff members (otherthan the editors of the yearbook and the newspaper), and the following exofficio[sic] members--Vice President for Student Affairs, Director of Student Life,President of Student Government Association, and the Student PublicationsAdvisor. Except for those who are exofficio [sic], all members and thechairperson are appointed by the President of the University for a term of one(1) year. Appointments are made during the spring semester for the succeedingyear.

9. The handbookstates:

TheStudent Publications Board shall . . . [s]et qualifications for and (uponnomination by the Student Publications Advisor), appoint the editor of eachpublication who shall serve for a one-year term, unless reappointed or removedby the Board for cause . . . . In setting qualifications for the editors of thenewspaper and yearbook, the Board shall include a sufficiently high academicaverage or the successful completion of a basic journalism course, or both.

10. At the time ofthe events giving rise to the instant case, there was no publications policywritten specifically for the yearbook. Although the parties included a draft ofsuch a policy in the Joint Appendix, they agree that the draft has no relevanceto this case because it was produced after the events at issue.

11. The relevantportion of the handbook reads:

Sincethe Thorobred News is not an "official" organ of the University, theStudent Publication[s] Board shall cause to be inserted in the masthead astanding and distinct disclaimer indicating that the views expressed are notnecessarily those of the University, but rather are those of the named studentauthor, editor or board of editors.

(quotation marks in original).

12. The handbookstates:

Insubsidizing the Thorobred News through the Student Publications Board, theUniversity expects the newspaper to maintain at least these two standards ofquality control:

1.Report accurately and fairly newsworthy campus events; and

2.Pursue important news events to make sure they are reported and commented uponon the editorial pages with comprehension and full understanding of the facts.

13. Cullen's tenureas publications advisor to the yearbook included the entire period at issue inthis case (from January 1992 to November 1994). Cullen resigned from KSU in July1995. See Cullen v. Gibson, No. 96-6116, 1997 WL 547932 (6thCir. Sept.4,1997).

14. The handbookfurther states that although the yearbook is "subsidized by the University,it is the intent that [it] shall be free of censorship as prevailing lawdictates." Although we acknowledge that this freedom from censorship begsthe question of what, precisely, prevailing law dictates, we find it hard tofathom that KSU would have included such language in its student publicationspolicy if it contemplated confiscating and withholding distribution ofpublications with which it disagreed.

15. We note thatthe class in this case turned out to include at most three students--Coffer andthe two yearbook staff members who briefly assisted her--and perhaps includes asfew as one (Coffer). The small number of students who ended up working on theyearbook has no bearing on our finding that the yearbook constitutes a limitedpublic forum. Our focus is on whether the university intended to create alimited public forum in the yearbook. The particular events in thiscase--including the facts that a small number of students joined the yearbookstaff and that two students left it--transpired long after the universityexpressed its intent to create a limited public forum for the student yearbookeditors, whomever they might turn out to be. We further note that althoughKincaid is not part of the class of student speakers who worked on the yearbook,the First Amendment protects his right to read The Thorobred once theuniversity has opened it up as a forum for speech. See Virginia State Bd. ofPharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756, 96S.Ct. 1817, 48 L.Ed.2d 346 (1975) ("[W]here a speaker exists . . . theprotection afforded is to the communication, to its source and to its recipientsboth." (footnote omitted)).

16. Cofferimmediately clarified her statement: "Well, the students provide[the yearbook] through the university." (emphasis added)

17. Coffertestified that she included pictures of current events and celebrities because"those were some of the major people and . . . major events that werehappening during that time."

18. Cullen alsoindicated that the 1992-94 yearbook was not materially different in quality fromother yearbooks: "the things that were said about the [1992-94] yearbook,this particular book that was confiscated, is [sic] nothing new or unique to anyother yearbook. They all have problems."

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See the SPLC's Kincaid v. Gibson Information Page