FIRST AMENDMENT GOVERNS KENTUCKY STATE UNIVERSITY

Robert E. Manley, Manley & Burke

The First Amendment Rights of Freedom of Expression and Freedom of Association are so complexly intertwined, that if they are withdrawn from any student group, the action harms all student groups and everyone else on the campus. In January, the United States Court of Appeals, Sixth Circuit, upheld the First Amendment  rights of editors of the 1993-94 Kentucky State University yearbook  known as the Thoroughbred.

The student editor had resolved to “do something different.” Her goal was to “bring Kentucky State University into the nineties.” She wanted to “present a yearbook to the student population that was what they [had] never seen before.”

The yearbook was covered with a material known as “rain shower foil stamp” which was purple in color. One of the editor’s notions was to have the yearbook focus on a central theme, which was “Destination Unknown.” The theme was to describe the atmosphere of “uncertainty” that the editor thought characterized the campus at that time. Apparently, the editor felt that the uncertainty was displayed “in students wondering ‘where are we going in our lives’  and  in a current controversy regarding whether KSU was going to become a community college.”

When the yearbook was delivered to campus, administrators seized it and prevented its distribution among the students. Administrators found “the publication to be of poor quality and ‘inappropriate.”‘ As explained by the Sixth Circuit, “in particular, Gibson [the Administrator] objected  to the yearbook’s purple cover (KSU’s school colors are green and gold), it’s ‘Destination Unknown’ theme, the lack of captions under many of the photos, and the inclusion of current events ostensibly unrelated to KSU.” The Administrator conferred with the University President before taking her draconian action.

The suppression of the yearbook was not only a violation of the First Amendment Right of Freedom of Expression by students, and therefore unconstitutional, but it was one of the dumbest things that a college administration can do with regard to a publication. To suppress a student publication as a pragmatic matter merely makes the publication more notorious, more alluring and better known than it would have been if nothing had been said and it had been distributed on campus.

The United States Court of Appeals for the Sixth Circuit did not discuss the bad judgment of the school administration, but it did discuss that it was an illegal judgment. The Sixth Circuit states: “We begin with the fundamental principle that there can be ‘no doubt that the First Amendment Rights of Speech and Association extend to the campuses of state universities.”‘ The Sixth Circuit cites Widmare v. Vincent, 454 U.S. 263, 268-269, 70 L.Ed.2nd. 440, 102 S.Ct. 269 (1981).

The Court reviewed the university policies as found in the Student Handbook and through years of practice and concluded that the editor was essentially autonomous. The University staff member appointed as advisor to the yearbook had the limited role of “assuring that the yearbook is not overwhelmed by ineptitude and inexperience.” The policy expressly states: “In order to meet the responsible standards of journalism, an advisor may require changes in the form of material submitted by students, but such changes must deal only with the form or the time and manner of expressions rather than alteration of content.”

Having found that the yearbook is a “limited public forum,” the Court found that rights of the University “to limit expressive activity are sharply circumscribed.” A state university may “enforce content-based restrictions only if they are narrowly drawn to serve a compelling interest, and may enforce content neutral time, place and manner restrictions only if they are ‘narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”‘

The same principles that apply to Freedom of the Press on campus also apply to Freedom of Association. This area of the law was reviewed a decade ago in: “State Power and Discrimination by Private Clubs: First Amendment Protection for Non-Expressive Associations,” 104 Harvard Law Review 1835 (1991). The article was summarized in Fraternal Law No. 42, November 1992.

Whether it is the content of a publication, or the freedom to associate with those whom one chooses to associate,  a state university cannot violate student rights. The same law applies whether it arises through an administrative action against a publication or an administrative action against a student assembly. The rights of students in Greek organizations and in other organizations all come under the same law. When the rights of any student group are suppressed, it affects all students on that campus and perhaps on other campuses.

[BUT AT DARTHMOUTH…

On May 11, 2001, Dartmouth College announced that the Zeta Psi Fraternity had permanently lost its recognition by the College. According to the College’s investigation, Zeta Psi prepared and distributed “newsletters” that “purported to describe exploits, many of them sexual in nature, of various members of the fraternity and other students.” The publications, which the Fraternity described as satire, included use of names and photographs of Dartmouth women and descriptions of the reported exploits. One newsletter promised a report on “patented date-rape techniques” in an upcoming issue.

In announcing the permanent derecognition, Dean of the College James Larimore wrote that “[a] Dartmouth education is based in significant part on the concept of a community of learning.” He went on to state that “Dartmouth’s recognition of Zeta Psi and other (Coed, Fraternity and Sorority) organizations is premised on the idea that they contribute positively to the life of the institution. When an organization violates the rules and values of the community in the manner that Zeta Psi has – by abusive treatment of fellow students – it forfeits its right to continued membership in our community.” Dean Larimore recognized the considerable discussion on campus about freedom of expression. He countered that allowing such freedom to engage in any and all expressive behavior, subject to no standard whatsoever, “is corrosive of the very idea of a residential college.” He concluded that “Dartmouth has the right and the obligation to remove from its residential life system an organization that will not conform to the standards of that system.”

Letter to the Dartmouth Community from Dean of the College James Larimore is available at the Dartmouth  College  website,  www.dartmouth.edu/-news/releases/may0l/j1511.html.]