Court: KSU must release confiscated yearbooks

By SCOOBIE RYAN

A settlement’s been reached in the Kentucky State University yearbook case that calls for KSU to release the 717 copies of the Thorobred that have been locked up for almost six years.

In January, the Sixth Circuit Court of Appeals ruled KSU was wrong to withhold the yearbooks. On Feb. 28, the lawyers for Charles Kincaid and Capri Coffer said that KSU had agreed to release the yearbooks, pay Kincaid and Coffer $5,000 each, reimburse the Society of Professional Journalists’ defense fund and pay legal costs.

Lawyers Bruce Orwin and Winter Huff said KSU agreed to use alumni records to locate students from 1992-1994 who were entitled to the confiscated yearbooks.

“All I want is my yearbook,” said Charles Kincaid. “It was something they did not have the right to take.”

Kincaid was a KSU student when the yearbooks were confiscated. He and the yearbook’s editor, Coffer, filed suit asking that KSU be required to distribute the yearbooks. The first ruling went against them. On appeal, before a three-judge panel, Kincaid and Coffer lost again. The third time, they asked that all the judges serving on the Sixth Circuit Court of Appeals hear their case.

“We lost. We lost before three judges; we went back and asked for an en banc hearing,” said Orwin, a Somerset lawyer. He and Huff, another Somerset lawyer, said they were encouraged when the entire court decided to hear the case.

“The law was always there,” said Huff. “We finally got a big enough audience to listen. And,” she said, “Judge Cole wrote an excellent decision.”

Circuit Judge R. Guy Cole, Jr. wrote the 9-4 decision in favor of the students. The ruling said KSU’s yearbook was a limited public forum and as such, KSU’s 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.” Cole’s opinion rejected the lower court’s ruling that said that a Supreme Court case on high school censorship, Hazelwood v. Kuhlmeier, also applied to college students.

The SPJ contributed $5,000 from its national defense fund to help with the last appeal. “It was the largest grant the legal defense fund has ever given out,” said Bill Goodman, Blue Grass SPJ president and host of Kentucky Educational Television’s news program, Kentucky Tonight.

Goodman said advisers and student journalists should not hesitate to ask professionals for help. “Oftentimes we read about cases like this and we’re not sure of what to do. During the last round of appeals Bruce came to us. We initiated and submitted the paperwork (for the SPJ defense fund grant). This is an example of taking action and following through to uphold the freedom of the press.”

Former Thorobred adviser, Laura Cullen, said she was pleased with the court ruling and the settlement. Cullen, now the editor of the Kentucky Gazette, was criticized by KSU administrators and demoted after she ignored directions to censor the content of the student newspaper. She left the university and filed suit for harassment. Her suit was not successful.

(Scoobie Ryan is a journalism professor at the University of Kentucky School of Journalism and Telecommunications. She is also a member of the Kentucky High School Journalism Association’s Advisory Council.)



Commentary

What can we learn from this?

It’s important to note the lessons of Kincaid v. Gibson. The court ruled in no uncertain terms that college administrators cannot co-opt student publications at state schools for public relations purposes. Administrators, at least those in the Sixth Circuit — Kentucky, Michigan, Ohio and Tennessee — cannot interpret the law and apply it as they’d like.

The ruling reiterates the importance of free expression in an academic environment. “The university environment is the quintessential ‘marketplace of ideas,’ which merits full, or indeed heightened, First Amendment protection,” wrote Judge R. Guy Cole, Jr. in the majority opinion.

This case is also important because it shows there are dedicated professionals who value the First Amendment — and students’ rights to use it — above time and money. It was the Blue Grass chapter of the Society of Professional Journalists who contacted the national SPJ to ask for the funds to help allow the case to continue. It was a pair of Somerset lawyers, Bruce Orwin and Winter Huff, who agreed to take a case that held little promise of profit or fame for them.

It demonstrates that persistence pays off.

There are some powerful cautions here, too. First Amendment heroes suffer for their courage. KSU Thorobred adviser Laura Cullen was demoted and eventually left the university. Her allegations of harassment did not prevail in court. Fortunately she was able to move on and is now editor of the Kentucky Gazette. But, when she stood up for what was right, she had no guarantees of future employment.

The case also demonstrated the appalling state of media literacy in our society. Many highly educated citizens, like college administrators, lawyers and judges, don’t always comprehend the role of a free press in democracy.

Finally, the court’s ruling does not apply to an important group. The Supreme Court, in Hazelwood v. Kuhlmeier, made a critical distinction between high school and college journalists. There are no indications the Kincaid court would be receptive to a high school journalist who might complain of school censorship. If Kentucky’s public high school students are to have full First Amendment rights to publish, those rights will need to be established by statute.

Scoobie Ryan

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