University official allowed to confiscate student yearbook

A split panel of the U.S. Court of Appeals in Cincinnati (6th Cir.) held in early September that the Kentucky State University vice-president for student affairs did not violate the First Amendment rights of students when she confiscated all copies of a yearbook.

The majority concluded that a public university’s yearbook is a nonpublic forum that is subject to reasonable regulation by university officials.

Charles Kincaid and Capri Coffer wrote and edited both the Kentucky State University student newspaper and yearbook. Betty Gibson, KSU’s vice-president for student affairs, did not like the yearbook when she reviewed it before it was distributed. Gibson said she was disturbed by the yearbook’s purple cover — instead of a cover with the “school’s colors” — its vague theme and title of “Destination Unknown,” the inclusion of pictures of current events and public figures unrelated to KSU, such as Ross Perot, Bill Clinton and the Pope, the scarcity of photographs of school figures and events, and the fact that many of the photographs lacked captions. After consulting with the KSU president, Gibson confiscated the yearbooks.

Gibson also criticized the content of the school newspaper. She complained about particular comic strips, and she requested that the paper’s advisor prohibit the newspaper from printing a particular letter to the editor and tell the students to publish more positive news in the paper. Gibson also temporarily transferred the advisor and allegedly threatened her with punishment if the newspaper and yearbook were not changed.

KSU, a state-funded public university, operated its student newspaper and yearbook on KSU property, funded them partially through a portion of a mandatory annual student activities fee, and subjected them to oversight by a Student Publications Board that includes administrators.

The KSU student handbook states, “The Board of Regents respects the integrity of student publications and the press, and the rights to exist in an atmosphere of free and responsible discussion and of intellectual exploration. . . . Though both publications are subsidized by the University, it is the intent that both shall be as free of censorship as prevailing law dictates.” The handbook also noted that the student newspaper — but not the yearbook — must insert in each edition a disclaimer that the views expressed in the paper are not necessarily those of the university because the paper was not an official university “organ.”

In November 1995, Kincaid and Coffer sued Gibson and other KSU officials in federal District Court in Frankfort, Ky., claiming in part that Gibson’s interference with the yearbook and newspaper violated their First Amendment rights to free speech and expression. In June 1997, the KSU defendants asked the court to dismiss the First Amendment claims.

Relying in part on the U.S. Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier, the trial court dismissed the First Amendment claims in November 1997. Hazelwood concerned school officials’ censorship of a high school newspaper, which the U.S. Supreme Court viewed as a private forum. The Court held that the officials could censor the private forum publication without infringing on the First Amendment because the censorship “was reasonably related to legitimate pedagogical concerns.”

In this case, the trial court held that the Hazelwood holding applied to the confiscation of the university yearbook. It found that the university yearbook was a private forum because it was not “intended to reach or communicate with anybody but KSU students. . . . [It] was not intended to be a journal of expression and communication in a public forum sense, but instead was intended to be a journal of the ‘goings on’ in [a] particular year at KSU.”

The court then determined that university officials had used reasonable discretion in confiscating the publication. For the claims relating to the newspaper, the court held that neither the transfer of the advisor nor the censorship allegations amounted to an actual claim of harm or a specific threat of future restraint and that, therefore, Kincaid and Coffer had not suffered any “injury” upon which they could sue.

Kincaid and Coffer appealed to the U.S. Court of Appeals in Cincinnati (6th Cir.).

In addition to arguments that the court should not have applied Hazelwood to their case and that it applied Hazelwood in an incorrect fashion, Kincaid and Coffer also contended that the trial court had erred in dismissing the newspaper’s claims because they had suffered an injury upon which they could sue when the university attempted to restrict their speech and when the university transferred their faculty advisor.

In response, KSU argued that the trial court had correctly relied on the Hazelwood decision in order to find that the KSU officials had not violated any of Kincaid and Coffer’s First Amendment rights because they had a rational basis for the decision to confiscate the yearbook. KSU also argued that the trial court had correctly dismissed the newspaper claims because no actual “injury” had taken place concerning that publication.

A number of media organizations, including the Student Press Law Center and The Reporters Committee for Freedom of the Press, filed friend-of-the-court briefs in support of Kincaid and Coffer. The media groups argued that the trial court had improperly applied the Hazelwood high school censorship standard to the collegiate press, noting, “The Supreme Court recognized the separate status of college publications when it specifically noted in Hazelwood that its decision should not be assumed to apply to college journalists.”

In early September, a split three judge panel of the Court of Appeals found in favor of KSU and affirmed the trial court’s ruling on all counts. Judge Alan Norris, joined by Judge James Ryan, began the majority’s discussion of the First Amendment issues by explaining that Hazelwood applied to this case and that under the decision a court must first assess the nature of the students’ forum before examining the propriety of the school officials’ actions. The forum determination can be made by examining the intent of the school in chartering the publication, according to the court.

If KSU had given its students full reign over the yearbook’s content, then it would have created a “public forum” that would have drastically limited a school’s supervision over the publication. In that event, KSU would have only been able to regulate the yearbook’s content if the regulations were drawn narrowly to achieve a compelling public interest. The court, however, ruled that the yearbook was a nonpublic forum and that therefore KSU could regulate the yearbook’s content with reasonable regulations that had not been put into effect to suppress a particular viewpoint.

In making its ruling, the court found that KSU had maintained some control over the yearbook. In particular, it took note of the handbook’s requirement that the newspaper but not the yearbook insert a disclaimer stating that the opinions expressed in the newspaper were not the university’s. The court found that KSU had intended the yearbook to serve “as a KSU-sponsored representation of student life at the university rather than as an open forum for student expression” in part because it did not require the yearbook to include the disclaimer. The court also found that the handbook’s statement that the yearbook “shall be as free of censorship as prevailing law dictates” means that KSU intended for the current prevailing law for nonpublic forums to apply to the yearbook.

The court did not decide the forum question for the newspaper because it held that the trial court properly dismissed those free speech allegations because the alleged censorship had not resulted in any injury to Coffer or Kincaid.

Justice R. Guy Cole Jr.wrote a separate opinion agreeing with the majority opinion’s resolution of the newspaper claims but dissenting from its holdings about the yearbook claims.

Cole wrote that he was not convinced that Hazelwood applied to this case. But he went ahead and used the Hazelwood framework to come up with a different result from the majority opinion: “While I agree that the yearbook is not a traditional public forum, I take issue with the majority’s conclusion that it must therefore be a nonpublic forum,” Cole wrote. “The majority makes this finding only by ignoring the third classification of a limited public forum.” Under this third category, the rules for a traditional public forum would apply: KSU would have only been able to regulate the yearbook’s content if the regulations were drawn narrowly to achieve a compelling public interest. (Kincaid v. Gibson)