Siding with the University of Kentucky in a lawsuit against its independent student newspaper, a state judge ruled Tuesday that the university does not have to release records related to allegations that a former professor sexually assaulted and harassed students.
Victims and their advocates have been split over the case. At first, the students identified in the documents as the professor's alleged targets appeared to side with the newspaper, the Kentucky Kernel, arguing through a representative that the public deserved to know how the university handled the dismal of the professor, who was allowed to resign quietly. In November, though, two of those students joined the lawsuit against the newspaper.
Critics of the university have said the lawsuit is just the latest example of colleges hiding behind student privacy laws to protect their image and reputation.
“It's definitely a tough case, touching on a key area of tension in campus sexual assault cases,” said Laura Dunn, a lawyer and executive director of the victims' advocacy organization SurvJustice. “When does the interest of one survivor give right to the greater needs of the campus community regarding safety? There is no set answer, and it is a case-by-case decision.”
The Kernel first requested the records last year, leading to a legal battle that pitted the university against Kentucky’s attorney general. The university argued that the documents should be considered educational records under the Family Educational Rights and Privacy Act, the federal student privacy law. Kentucky’s attorney general, Andy Beshear, decided the university violated open-records laws in not providing redacted versions of the requested documents to the student newspaper and his office. Unable to appeal Beshear’s decision directly, the university sued the Kernel.
In his ruling Tuesday, Fayette Circuit Court Judge Thomas Clark agreed with the university, stating that the documents "cannot reasonably be redacted to support the privacy rights" of the students.
“This legal process has always been about one primary goal -- preserving the right of a victim survivor to determine how, when, or even if to tell her story,” Eli Capilouto, the university’s president, said in a statement. “We stand with survivors and we believe strongly that federal and state laws protect their right to privacy. Without privacy, we know victim survivors will not come forward to report. That’s what was at stake in this case.”
The Kernel plans on appealing the decision, and Beshear said he will also challenge the ruling. While many of the requested investigatory records were already leaked to the student newspaper in redacted form last year, the lawsuit has become a cause célèbre highlighting federal student privacy laws and the ways institutions use them in complaints of campus sexual assault and harassment.
In the last year, several colleges have stated that press coverage of campus sexual assault cases can deter students from coming forward when they are the victims of such crimes.
Officials at Baylor University made a similar argument in defending their decision not to release -- or even create -- any documents related to the university’s ousting of several employees, including its president and head football coach, over allegations they mishandled and ignored reports of sexual assault. “It’s really crucial, given the focus of [the] investigation was on the experiences of students impacted by sexual violence, to protect the details of those cases,” the university’s vice president and provost told Inside Higher Ed in June.
Capilouto and other Kentucky officials blamed the Kernel’s coverage for a drop in sexual misconduct reports last year.
“Based on my experience in this field, I believe the Kernel’s publication of articles related to this case has caused students to be reluctant to report incidents of interpersonal violence for fear of media attention,” Ashley Rouster, an intervention program coordinator at the university, wrote in a court affidavit. Nearly 60 people reported being sexually assaulted to Kentucky’s Violence Intervention and Prevention Center between July and October 2015. This fall, the number fell to 38 for that same time frame. In October, Capilouto sent a campuswide email, stating that “only the victim survivor should have the ability to tell” his or her story.
In November, Western Kentucky University denied similar records requests, citing the ongoing University of Kentucky lawsuit.
“There’s no way that colleges should be able to declare the entire personnel file of accused wrongdoers to be confidential student records,” said Frank LoMonte, executive director of the Student Press Law Center. “The ruling gives colleges a license to conceal even potentially dangerous wrongdoing by their employees. That can’t possibly be how FERPA is supposed to work. This case has never been about student privacy and well-being and has always been about protecting the image of the university. The university used student privacy as a smokescreen.”
LoMonte said the case “should be a conversation starter for Congress about whether privacy laws are being misapplied.”
Dunn, of SurvJustice, said she agreed that it’s time for FERPA “to be rewritten,” but said the court was correct in Tuesday’s ruling.
“Courts can and have chosen disclosure with redactions as a compromise, but it sounds like the court determined that even if personal identifying information was redacted, remaining information may sufficiently identify the victim to violate related privacy rights,” Dunn said. “At the end of the day, the reality is that FERPA needs to be rewritten. As it stands, FERPA also does not consider issues around misconduct that are also criminal conduct and the public interest it may raise. It also fails to do the obvious of ensuring that attorneys of a student can view their records. It's due for a rewrite.”