Former Kentucky State students urge full appeals court to hear yearbook case

Friday, September 24, 1999

Two former Kentucky State University students have asked the full 6th U.S. Circuit Court of Appeals to reconsider a recent court panel decision that upheld confiscation of the school yearbook and removal of a student newspaper adviser five years ago.

In a friend-of-the-court petition filed this week by more than 30 journalism schools, professors and free-speech groups — signatories — told the court that if the panel's decision isn't reversed, the Sixth Circuit would stand alone as the only federal appeals court to disregard the First Amendment at the collegiate level.

“In the university setting, the [Supreme Court's] emphasis always has been on the crucial importance the First Amendment plays in the free exchange of ideas,” the brief reads. “Indeed, the driving force prompting the enactment of the First Amendment was the Founders' unwavering commitment to this freedom of the mind.”

On Sept. 8, a three-judge panel of the Sixth Circuit rejected arguments by Charles Kincaid and Capri Coffer that the Kentucky State officials violated their First Amendment rights by forbidding distribution of the yearbook and allegedly interfering with the student newspaper.

The panel ruled that the former students failed to prove their allegations against the Frankfort, Ky., university.

In a 2-1 decision, the panel said that the yearbook, The Thorobred, was not protected by the First Amendment because its content did not amount to public speech. The panel didn't consider the First Amendment in its decision concerning The Thorobred News, because it said the former students lacked standing to pursue their claims concerning the newspaper.

Although the case is binding only in Michigan, Ohio, Kentucky and Tennessee, the implications are far reaching. This marks the first time a federal appeals court has applied the U.S. Supreme Court's decision in the landmark 1988 case, Hazelwood School District v. Kuhlmeier, to public universities and colleges.

Although the court panel cited six collegiate cases from the past 30 years, it rested its opinion solely upon Hazelwood, a decision that allows high school officials considerable control over school-sponsored publications if they show strong educational reasons for doing so.

KSU administrators said they confiscated the 1992-94 yearbook because it didn't sport the school's official colors and was of poor quality. They plan to destroy the books.

Signatories of the friend-of-the-court brief faulted the court panel for ignoring “the rich history of First Amendment protections afforded college students.” They noted that the decision directly conflicts with 30 years of Supreme Court case law, specifically with the 1995 ruling in Rosenberger v. Rector & Visitors of the University of Virginia.

The Supreme Court wrote: “The first danger to liberty lies in granting the State the power to examine publications to determine whether or not they are based on some ultimate idea and, if so, for the State to classify them. The second, and corollary, danger is to speech from the chilling of individual thought and expression.”

The signatories of the brief also urged the court to reconsider the standing of the two students in the newspaper case, noting that university officials demoted the newspaper advisor to a secretarial position because she refused to censor material critical of the administration.

“It is difficult to imagine a more effective and chilling method of direct censorship than the removal of an advisor who refuses to censor,” the brief reads.

Mark Goodman, executive director of the Student Press Law Center, said court rulings in the case continue to shock advocates of the student press. He noted that 17 free-speech groups, 12 university journalism departments and a half-dozen journalism professors joined together to support the friend-of-the-court brief.

“The size and breadth of the group that has joined in one voice to ask the court to reconsider this case is unprecedented,” said Goodman, in a written statement. “I sincerely hope that the judges of the Sixth Circuit will be moved by our concern and take a second look at this troubled court ruling.”