Decision frees college press from censorship


Kentucky State finally agrees to release captive yearbooks following ruling by Sixth Circuit Court of Appeals





KENTUCKY -- After seven years, the members of the Kentucky State University class of 1994 will finally receive their yearbooks.

KSU officials agreed to distribute the books in February as part of a settlement with two students who sued the university for violating their First Amendment rights by confiscating the 1994 edition of the Thorobred.

Under the terms of the settlement, Kentucky State will attempt to reach 90 percent of the students eligible to receive the yearbook, which was funded with student activity fees. The university will also pay the student plaintiffs $5,000 each plus $60,000 in attorney's fees and costs.

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

In the 10-3 ruling, the judges rejected the district court's decision, which applied a high school-based censorship standard to college student media.

Instead, the court said the yearbook constituted a limited public forum, and as such, KSU officials could not withhold it from distribution.

"KSU officials' confiscation of the yearbooks violates the First Amendment, and the university has no constitutionally valid reason to withhold distribution of the 1992-94 Thorobred from KSU students from that era," Judge R. Guy Cole said in the majority opinion.

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

Gibson said she objected to the color of the yearbook's cover, which was purple rather than the traditional school colors of green and gold, its title, "Destination Unknown," the inclusion of a current events section and a lack of captions for many of the photos.

Kentucky State officials contended they were only regulating the style and form of the books -- not their content -- when they prohibited their distribution. But the court called this argument "simply not credible."

"The record makes clear that Gibson sought to regulate the content of the 1992-94 yearbook," Cole said. "In addition to complaining about the yearbook's color, lack of captions, and overall quality, Gibson withheld the yearbooks because she found the yearbook theme of 'destination unknown' inappropriate."

The court also disputed Kentucky State's assertion during oral arguments that confiscation of the yearbooks was not a form of content alteration.

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

"We will not sanction a reading of the First Amendment that permits government officials to censor expression in a limited public forum in order to coerce speech that pleases the government," Cole continued. "The KSU officials present no compelling reason to nullify Coffer's expression or to shield it from Kincaid's view and, accordingly, the officials' actions violate the Constitution."

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

In addition to the $70,000 Kentucky State paid in the settlement -- and whatever funds officials will spend to locate the students entitled to copies of the 1994 yearbook -- the university spent more than $40,000 in attorney's fees and costs defending itself against the students' charge that officials acted illegally when they confiscated the books.

"It could have been settled years ago and $100,000 ago," Kincaid said of the time and money KSU devoted to fighting the release of the yearbooks. "I never received an apology, although I did receive a check. I wish that it had never gone this far, but in retrospect I'm glad it did because it did leave a precedent."

Coffer said she is particularly pleased that the yearbooks will finally be distributed because they were the result of her labor.

"Under the conditions I was working with, that was the best that I could do," she said. "I turned out that yearbook by myself without a photographer, without copywriters, without anything. That was the best that I could do so I do feel vindicated."

Coffer, who left Kentucky State shortly after the yearbooks were confiscated, now lives in Pasadena, Calif. She said she 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 else who 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 it as diligently as the dockets of the courts would let us," he said. "I'm pleased with the way the case came out, and I sure want to get those books distributed."

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

"I believe that it opens the door for other students to express themselves," he said. "That's a milestone in anybody's life when they receive a degree from a university, and what better way to look back on those days than to open up a yearbook that maybe somebody signed that you can show your kids or your grandkids and say, 'I went to this school, and I thought this building was the neatest building in the world. I made more friends in this building than anywhere. This university has given me an education that has caused me to go out and better myself.'"

Kincaid said he will use his yearbook to tell his 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, and if you believe in it wholeheartedly, then don't let anybody persuade you differently. If you back down at a particular point in your life, you always have that doubt or regret: What would have been the outcome if I had really stood up or had really believed? I really think that this was part of what this was all about. I just believed in it so wholeheartedly that I wasn't going to let anybody persuade me differently."

But for now, Kincaid cannot tell anyone anything about his yearbook because he is still waiting for Kentucky State to send him a copy.

"I would like to see it," he said. "I would like to see what this was all about."

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


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


reports, Spring 2001