The University of Kentucky is suing the school’s independent student newspaper, the Kentucky Kernel, in an effort to block the release of records related to a sexual assault investigation on campus, a rare move that the university says is necessary to protect victims’ private and confidential information.
The lawsuit is unusual in a number of ways, in part because the university acknowledges it is reluctantly suing the student newspaper, which already has the documents it sought under an open records request — the paper already has used the documents in covering alleged cases of professor-on-student sexual assault and harassment. Because the school can’t go after the state’s Attorney General following an opinion that the school would have to release documents in the case, the university is targeting its own students in an effort to block the release of such records.
“For the university, this issue is about one thing — how to protect the privacy of victim survivors who courageously come forward to report an incident,” said Jay Blanton, a university spokesman. “We believe strongly that only a victim has the right and perspective to tell their story — not the media, not another student or member of the campus, not another perpetrator or stalker. A court of law is the only recourse we have for settling that question.”
The Kernel staff strongly disagrees, and in editorials the paper has been blasting the university for its handling of the situation, arguing that the school is out to protect one thing: itself. Marjorie Kirk, the Kernel’s editor in chief, said she believes the university is “taking advantage of a broken system to protect the university’s image” and is putting up barriers to information as a way to limit the public’s ability to question its behavior.
“They cannot choose which laws to follow as it suits them and their image,” Kirk said. “In this case, the consequence is covering up sex crimes and hiding sex offenders in higher education. The consequence is also inhibiting First Amendment rights of the public.”
The university argues that releasing such documents would set a dangerous precedent and would weaken protections under the Family Educational Rights and Privacy Act (FERPA), which it has cited in denying certain records requests. The university believes that releasing such information compromises its morals and values and could endanger those who come forward to report harassment and assault.
“We believe our students — and the families who trust us with their safety and well-being — deserve our support and our willingness to do everything we can to protect them,” Blanton said. “Victim survivors — and those who advocate for them — across our campus agree with our position and we have pledged to them that we will stand with them.”
The case began in December 2015, when two female students filed complaints against Associate Professor of Entomology James Harwood, claiming sexual assault and harassment at two separate conferences in 2012 and 2013. Revealed in the Kernel’s reporting was that other students, male and female, came forward to testify in support of the two accusers, alleging similar violations.
Harwood resigned from the university in February before an internal hearing process concluded, leaving without being found responsible for any violation of school policy and securing a severance package from the university. In April, the Kernel filed open records requests for documents in the case, and just a few days later the university denied the request, citing privacy exemptions to the open records law.
The Kernel appealed to the Attorney General, and it won in early August — in what was a reversal of previous state decisions that had sided with the university withholding such documents. The university immediately said it would file suit to block the release. On Aug. 13, the Kernel reported on 118 pages of documents it obtained from sources related to the investigation into Harwood, redacting the victims’ names and reporting that the victims believed the university was trying to protect the professor.
Though the documents are in the public realm, they didn’t come from the university, which doesn’t want to have to turn over such documents in the future.
Harwood has denied wrongdoing, and he told The Washington Post that all of the claims against him “are simply allegations with no truth.” He said his decision to resign was to protect his family from the publicity and stress that he had been warned a hearing would entail. He believed the investigative documents would not be released publicly — in this case affording the accused and the purported victims the same protection — and agreed not to discuss the case in detail as part of his departure.
“I am not able to comment on the actual investigation as I will maintain the confidentiality I made at the time of my resignation,” Harwood said. “I was told that this preliminary internal investigation would remain confidential and not be released by the university, but I can say I have witnesses and evidence proving my innocence, including additional information that has come to light since my resignation.”
FERPA was created in the 1970s to allow students access to their own records — including grades, transcripts, letters of recommendation in their admissions file — while also protecting that information from public release. But university legal departments have argued that the federal law protects nearly every document the university produces, which in this case means investigatory files related to alleged criminal acts, according to Frank LoMonte, executive director of the Student Press Law Center.
“FERPA is a trainwreck,” LoMonte said. “I’m hoping this is the case that gets it on Congress’ radar.” He said the university is “fighting for an empty victory because the records are already public, and trying to bankrupt a newspaper in the process.”
Kentucky Attorney General Andy Beshear, who reversed his predecessor’s position on the release of confidential records, also has not been able to get access to the records because the university has argued that handing them over to him also would be a violation of federal law.
“The University of Kentucky’s lawsuit stabs at the very heart of the open records law and this office’s ability to enforce it,” Beshear said. “In fact, UK would create a silver bullet for any bad actor to entirely avoid the open records law. For a university to push such a position is entirely irresponsible, especially when that university touts a First Amendment center,” he said, referring to the UK institution named for Scripps Howard.
And as strange as it seems for a university to sue its own students to deny transparency, the case of the Kentucky Kernel is not an isolated one. On July 5, UK and the Kentucky Medical Services Foundation sued a former medical school student for filing open records requests about the foundation’s financial records.
Nor is this the first time that UK has crossed swords with Beshear, Kentucky’s newly elected attorney general. On May 23, Beshear ruled that UK had violated open meetings law when it denied requests for information about meetings that determined doctors’ salaries; on Sept. 2, Beshear ruled that UK again violated open records laws for withholding information about a cardiology practice in Hazard, Ky., that UK once owned.
During a Sept. 9 meeting of the University of Kentucky Board of Trustees, Trustee David Hawpe raised concerns about the university’s position in the case, calling it “unwise and unfair.” Hawpe, a retired journalist, characterized the university’s tone of secrecy as reminiscent of the Catholic Church sex abuse crisis, because the privacy afforded to victims also could allow alleged perpetrators to re-offend somewhere else. He said reporting on such cases, such as the Kernel’s, allows for transparency.
On Thursday, fifteen members of the University of Kentucky journalism faculty signed a letter that was hand-delivered to University of Kentucky President Eli Capiluto, which read in part: “We believe that you owe the editors of the Kernel, the faculty of the School of Journalism and Media, the attorney general and the taxpayers of Kentucky an apology. We also believe that the university should drop the lawsuit against the Kernel.”
University officials say they have nothing against the Kernel as an institution, or the students who work there.
“We respect the Kernel,” Blanton said. “They are an independent news gathering organization with a long history on our campus. They are students, too. We deeply appreciate its role on our campus and in asking questions about issues that we believe, and that we agree, need to be addressed.”
But they do see the issue as a fundamental difference of opinion about releasing private, confidential information related to sexual assault cases.
“When there is a disagreement like this one, that speaks to profound issues regarding the law and our values, it is entirely appropriate to seek answers in a court,” Blanton said. “That’s how the process is supposed to work.”