The conflicting interests involved in Title IX allegations of sexual misconduct have reached an extraordinary level of absurdity in Kentucky.
University of Kentucky Sues Its Own Students to Hide Title IX Documents
Way back in 2016, the students working at the student newspapers at the University of Kentucky and Western Kentucky University – the Kentucky Kernal and the College Heights Herald, respectively – filed public records requests for documents related to Title IX investigations into sexual harassment and sexual assault by school employees. The schools refused to comply with the requests, claiming that the records were protected by the Family Educational Rights and Privacy Act (FERPA).
In a quirk of Kentucky's public records law, both colleges had to file a lawsuit against their own student newspapers to challenge the disclosure of the information.
The University of Kentucky and Western Kentucky University also claimed that they were fighting for the privacy rights of the students who claimed to have been victimized and were listed in the reports. However, the two student newspapers had requested identical information from other Kentucky schools, and those schools had complied with the requests.
Students and their attorneys in the lawsuit believe that UK and WKU are fighting the record disclosure in order to protect their reputations. Supporting that idea is the fact that the investigative work of one of the student reporters at the College Heights Herald, Nicole Ares, has garnered her several prestigious awards for student journalism. While Western Kentucky University usually touts the achievements of its students, it has refused to acknowledge her work or its recognition.
Appellate Court Looks for a Middle Ground
The dispute went all the way to court, with the trial court siding with the newspapers – the colleges had an obligation to turn over records related to sexual harassment and assault allegations against professors and employees, though they could be redacted to preserve the privacy of those involved.
The University of Kentucky appealed.
On May 17, the Kentucky Court of Appeals weighed in, saying that UK was right in that FERPA was at play and that the people in the documents have privacy rights, but that this was not enough to support the school's blanket claim that it could refuse disclosure of all of the documents.
The Court of Appeals sent the case back to the trial court for UK to adequately redact the documents and legally justify any documents it wants to withhold.
National Title IX Advisor Joseph D. Lento
The confusing and needlessly complex situation is just another example of what happens when there are so many conflicting interests at play. Schools are in an impossible position where they have to come down hard enough on students and employees who have been accused of sexual misconduct that the school's federal funding is protected. However, they cannot come down on the accused so hard that they violate their due process rights. Throughout, schools want to maintain their reputation as a safe place for students to come for college.