Faculty feel chill wind from yearbook ruling

Academe, Nov/Dec 1999

FOR ELEVEN YEARS, THE U.S. SUpreme Court ruling in Hazelwood v. Kuhlmeier-which grants school administrators broad control over highschool newspapers-sent shivers through K-12 publishing. While hoping one day to remove the 1988 decision from the legal canon, teachers and free-speech advocates hardly dreamed that it might threaten highereducation publishing. But with its September ruling in Kincaid v. Gibson, a panel of the Sixth Circuit federal appeals court has made that distant concern a reality.

"The majority seems to have extended carte blanche to university publications the content-based restrictions allowed by the U.S. Supreme Court for high-school publications," says Donna Euben, associate counsel at the AAUP. "This ruling, if it stands, has serious implications for college and university journals, law reviews, and perhaps university presses," she adds.

The case centers on a student yearbook at Kentucky State University. In 1994, university officials confiscated two thousand copies of the publication and stashed them in a storage room, alleging that the yearbook, with its purple cover, did not match school colors, contained an objectionable news section, and lacked overall quality. The confiscation coincided with the demotion of the student newspaper's faculty adviser, who did not remove material that rankled administrators from the paper before publication.

In 1997 a federal district judge set aside students' First Amendment objections to the confiscation, prompting the appeal to the Sixth Circuit panel in Cincinnati. In its ruling, the twomember majority on the panel brushed aside an amicus brief supporting the KSU students that was joined by representatives of every journalism program at public universities in the four-state region that makes up the circuit. At an earlier stage in the case, the AAUP filed an amicus brief on behalf of the KSU students.

Among the restrictions authorized under Hazelwood-and extended to higher-education publications under Kincaid-are those based on material that school officials deem "poorly written," "inappropriate, 11 or "inconsistent with the shared values of a civilized society." Such grounds, deemed overly vague by free-speech advocates, allow extensive censorship.

"This decision is quite troubling in its failure to recognize the differences between K-12 and postsecondary education," asserts Euben. "Unlike a high school, a university is the quintessential marketplace of ideas, where students are adults and where the primary institutional mission is to promote the robust exchange of ideas and to educate students to think for themselves."

Mark Goodman, executive director of the Student Press Law Center, based in Arlington, Virginia, notes that the plaintiffs may petition for a rehearing of the case by the entire Sixth Circuit court, or they may petition for review of the decision by the U.S. Supreme Court. "Fortunately," Goodman says, the panel decision "is not the final word in this matter."