'College Hazelwood' case hits the Sixth Circuit

Court hears arguments in Cincinnati in March; many anticipate ruling

\nOHIO - The heat is on in a federal appellate court as the\nbattle rages over First Amendment rights and prior restraint in\nthe Kincaid v. Gibson case. The fate of all college publications\ncould lie in the balance.

This case involves Kentucky State University's 1994 yearbook,\nwhich was seized by Betty Gibson, the vice president of student\naffairs at KSU, prior to its distribution. Gibson also removed\nthe newspaper adviser after she refused to censor that publication.\n

Charles Kincaid and Capri Coffer filed a lawsuit, arguing their\nFirst Amendment rights had been violated. Coffer was the editor\nof the Thorobred yearbook and a reporter for the newspaper,\nthe Thorobred News. Kincaid wrote letters to the editor\nof the newspaper and paid a student activity fee, which entitled\nhim to a yearbook.

The U.S. Court of Appeals for the Sixth Circuit in Cincinnati\nheard oral arguments on March 18 in what has been called the "college\nHazelwood case." The federal district court ruling\nin the case upheld the school's right to censor the publications\nbased on the U.S. Supreme Court's 1988 Hazelwood decision,\nwhich gave school officials greater rights to censor school-sponsored\nstudent publications at high schools. This case represents the\nfirst time that ruling has been applied to college student media.\n

Attorney Bruce Orwin, arguing on behalf of the students, told\nthe court that Gibson violated the student staff's First Amendment\nrights when she withheld from distribution the yearbook.

J. Guthrie True, KSU's attorney, said that the yearbook was\nnot a public forum and therefore this was not a First Amendment\ncase.

"This is a government-sponsored publication by a government-sponsored\nuniversity," True said. "The university has the right\nto exercise reasonable control of the yearbook."

True argued that the books were withheld because of their lack\nof quality. Gibson has stated that she did not like the book's\ndesign, citing the use of the color purple for the cover when\nthe school's colors are yellow and green. She also argued that\nthe book lacked the quality of past issues.

"There is not one shred of evidence in this case that\nthese books were withheld because of ideology or any opinion in\nthem. They were withheld because they were a poor job,"\nsaid True.

During oral arguments, federal judge John Ryan told Orwin,\n"Your constitutional arguments are not persuasive. ... Any\nuniversity that hands anything over to students ought to be closed."\n

"If you affirm the decision of the lower court, it will\ndestroy the student press," replied Orwin. He also argued\nthat the federal courts will set forth a trend if they allow college\nadministrations to interfere with student publications over "quality"\nproblems.

Neither the lower court that upheld the school's decision nor\nthe Sixth Circuit judges currently hearing the case have ever\nseen the yearbook in question.

"I've seen the yearbook," Orwin told the Lexington\nHerald-Leader. "It looks just like the yearbook from the\nyear before and the year after. Granted, it was fair quality,\nnot really good, but all the yearbooks [at the school] look like\nthat."

Almost all 2,000 copies of the 1994 Thorobred were seized\nand locked in an undisclosed location, and remain there now. \n

reports, Spring 1999