While summer lingered in most places, a chilling wind swept campuses nationwide in September, when a federal appeals court in Cincinnati ruled that Kentucky State University was justified in censoring its students’ yearbook.
Most students and faculty members haven’t even noticed it yet, but at state colleges and universities from Orono, Me., to San Diego, the decision in Kincaid v. Gibson could end up plunging free expression into an enduring winter.
The implications extend far beyond Kentucky State. The threat is to freedom of expression for students at all public colleges and universities. The ruling also poses a danger for faculty members and administrators at those institutions as they participate in academe’s marketplace of ideas.
Here’s what happened: In the fall of 1994, the newly published 1992-94 edition of the K.S.U. yearbook, The Thorobred, arrived on the campus of the historically black institution. When the university’s then-vice-president for student affairs, Betty Gibson,> saw the edition -- which had been created by students and supported by student fees -- she refused to distribute it and confiscated all 2,000 copies.
Gibson’s complaints? The cover was purple instead of K.S.U.'s official green and gold. The theme of the edition, “Destination Unknown,” was vague and inappropriate, according to Gibson -- although the yearbook’s student editor, Capri Coffer, said it reflected the fact that many students didn’t know what the future held. The yearbook focused on current events rather than on university activities, contained grammatical errors, and displayed some photographs that lacked captions.
After Gibson confiscated the yearbooks, two students filed suit against Gibson and other members of the administration, alleging that K.S.U. had violated their First Amendment rights, not only by confiscating the yearbooks but by attempting to control the content of the student newspaper, as well, through other actions. For example, the institution required that the newspaper be reviewed by a K.S.U. publications board of students and administrators before going to print -- a policy that strays dangerously close to prior restraint.
Confiscation of the yearbook is, indeed, only part of the free-speech issue at K.S.U. Laura Cullen, the newspaper’s adviser -- or “coordinator of student publications” -- claimed that she had been reprimanded and transferred to another job because she had supported the students’ First Amendment rights. Although she was later reinstated, she was given specific instructions to direct the students to publish more positive news about the university, according to court records. She subsequently resigned and also sued K.S.U. on First Amendment grounds. The court dismissed her case, ruling that it was moot because she had voluntarily resigned from K.S.U.
A federal judge in Kentucky, Joseph M. Hood, ruled against the students in 1997, saying that Kentucky State “was entitled to exercise reasonable control over the yearbook” because it was not a “public forum” protected by the First Amendment. In response, the students took their case to the U.S. Court of Appeals for the Sixth Circuit. In September, a three-judge Sixth Circuit panel affirmed the lower court’s ruling.
So now, the students -- with some 30 friends-of-the-court from journalism schools, media organizations, and professors -- have asked the entire Sixth Circuit to rehear the case, with perhaps all 22 Sixth Circuit judges participating.
What started as a gripe from the administration over the quality of student work has now become a national debate among legal scholars, educators, and journalists’ organizations, who fear threats to free expression at public colleges and universities.
To be specific, Judge Hood cited an already controversial ruling by the U.S. Supreme Court that permits high schools to censor student newspapers (Hazelwood School District v. Kuhlmeier, 1988). The Sixth Circuit’s decision extends Hazelwood to institutions of higher education. To say that high-school kids should be muzzled is bad enough; to say that college-age students do not enjoy the same constitutional protections as other American citizens is a dizzying leap. After all, many college students are legal adults. They can marry, vote, and even be jailed for committing felonies. Under the Constitution, they are also permitted to think and speak for themselves.
Mark Goodman, the executive director of the Student Press Law Center, calls the Kincaid decision “an almost 180-degree turn from the strong First Amendment protections that have traditionally been afforded public-college student media.” If the ruling prevails, Goodman says, the decision “will gut student journalism programs at some colleges and universities.”
Even more is at stake, however, if the Kincaid v. Gibson ruling stands. The ultimate destination of the case will probably be the U.S. Supreme Court, where the fundamental question to be resolved is whether university administrators can curb free expression at their institutions simply because they don’t like the message or the messenger -- or because they think the vehicle that communicates the message is, as the appeals court wrote, of “poor quality.” Although Kincaid is about a student yearbook, the legal and philosophical questions extend to many kinds of expression by students and, perhaps, by faculty members and even administrators.
The Sixth Circuit thinks institutional oversight of such matters is okay: “It is no doubt reasonable that K.S.U. should seek to maintain its image to potential students, alumni, and the general public,” the judges said. “In light of the indisputably poor quality of the yearbook, it is also reasonable that K.S.U. might cut its losses by refusing to distribute a university publication that might tarnish, rather than enhance, that image.”
So the bottom-line issue, as seems to be the case so often in the land of higher education these days, is about marketing, about public relations, about the image a college or university presents to potential donors and supporters.
But that rationale overlooks two central questions: The first is, What constitutes free expression in a college or university environment -- for whom and under what circumstances? The second is even more basic: What are colleges and universities all about?
Although the Kincaid decision focuses on a student yearbook and not on other forms of free expression on campuses, the court -- by allowing the K.S.U. administrators to determine what is acceptable speech -- threatens the open nature of the marketplace of ideas that is fundamental to higher education.
As the marketing of our institutions becomes increasingly important, we all should worry about the vigor of First Amendment guarantees of free thought and expression on our campuses. Will administrators begin to censor all kinds of messages, publications, presentations, events, and performances that they think somehow carry the institution’s imprimatur -- but that they think may reflect badly on it?
And who should determine what is “poor quality” -- and how? People often say about obscenity that they can’t define it, but they know it when they see it. Will that be the legal standard as colleges undertake to define “quality” student expression?
Of course, there should be oversight and guidance of students who want to express themselves; as always, colleges and universities should focus on the teaching and learning that such activities afford. Of course, colleges have the right, and even the obligation, to appoint advisers to counsel student journalists and look out for problems. But should those advisers function as thought police? Absolutely not.
The second central question concerns the fundamental purpose of higher education. We exhort students to try out new ideas and to learn how to find the ones that work. We give them an environment where it is not only safe for them to think for themselves and to make mistakes, but where “question authority” is more than just a slogan from the 1960s and ‘70s.
All of us who teach college students must admit that we cringe occasionally at the unevenness and excesses of student journalism at our institutions -- to say nothing of students’ expressions of passion in other forums. But as we cringe, we should remember our own youthful enthusiasms, and how we learned from them.
The debate is painful for professors, because the Sixth Circuit ruling in Kincaid v. Gibson undercuts what most of us think our lives are all about. As Voltaire said, “I disapprove of what you say, but I will defend to the death your right to say it.” The actions of Kentucky State and the Sixth Circuit court reflect the kind of thinking that brought us book burnings. Such thinking flies in the face of both constitutional principles and -- speaking for myself -- the reasons why I got into teaching in the first place.
As faculty members, we naturally want the public to see our colleges and universities in the best possible light. But the threat of administrators censoring publications, speeches, presentations, theater performances, art shows, or even classroom lectures smacks of a Big Brother who has abandoned intellectual integrity and is driven by the interests of marketing and institutional P.R.
We should each think about whether what happened in Kincaid v. Gibson could happen on our own campuses. I hope that most of us will conclude that Kincaid is not about a purple yearbook. It is about protecting both our constitutional right to unfettered free expression and the fundamental character of higher education.
Colleges and universities are not simply products that should be edited, polished, and marketed. They are still -- at least for now -- places where all people can think and say what they want, where they may make mistakes -- and can learn from the experience.
Edward C. Pease is a professor of journalism and the chairman of the department of communication at Utah State University.
http://chronicle.com Section: Opinion & Arts Page: A80