Leadership & Governance

A Sex-Assault Case Pits Privacy Against Transparency

Eli Capilouto, president, U. of Kentucky

December 08, 2016

Produced by Carmen Mendoza and Julia Schmalz

As colleges across the nation grapple with the problem of sexual assault, a case unfolding at the University of Kentucky stands out as particularly complex and troublesome.

A series of articles published in recent months by the Kentucky Kernel, an independent student newspaper, revealed that a Kentucky professor had been accused of sexual harassment and sexual assault before resigning this past August in a quiet settlement with the university.

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In a tug-of-war with the newspaper, the university released the details of its settlement with James D. Harwood, a former associate professor of entomology, but declined to provide all of the documents associated with its investigation.

The Kernel, which obtained the documents from another source, has written about the investigation but has not revealed the names of the professor’s alleged victims. Mr. Harwood has denied wrongdoing.

The state’s attorney general ordered the university to release its investigative files, but the university appealed that decision. In order to appeal the ruling, a quirk of Kentucky law requires the university to sue the student newspaper.

Although Kentucky’s case is unique, it highlights a host of challenges colleges face as federal authorities and students demand more accountability on the handling of sexual-assault allegations. Eli Capilouto, Kentucky’s president, stopped by The Chronicle's offices this week to talk about the case and the university’s broader efforts to create an environment where victims feel they can safely and confidentially report those crimes.

TRANSCRIPT:

JACK STRIPLING: Hi, I'm here with Eli Capilouto, president of the University of Kentucky. Thank you for coming to The Chronicle. I appreciate it.

ELI CAPILOUTO: Glad to be here.

JACK STRIPLING: So we're going to talk about a couple of different things. But one that is very interesting to our readers is how your campus is dealing with sexual harassment and sexual assault. And you have a really interesting case that we're looking at as journalists as well.

But set the scene for me here. Not too long ago, you announced that you were going to be taking some different measures relative to these issues. What's the university trying to do?

ELI CAPILOUTO: Well, let me say that long before I got to the University of Kentucky, we took this as a serious issue. We did one of the first climate surveys, probably a decade ago. Didn't like what we saw, took some steps, created a Violence Injury Prevention Center for confidential counseling for victims of assault.

And we've done other things along the way. Two years ago, we decided we'd survey our entire campus. You can't register for classes until you complete this survey. So we feel like we have the most comprehensive data at a granular level.

Some of the things we see there — disturbing. One out of seven women say within a year, they would be — experienced sexual assault. And more troubling to us, which is at the heart of this case, is that only one out of five feel like they will report it.

JACK STRIPLING: I see.

ELI CAPILOUTO: And why don't they report? They want to try to forget it, which they usually don't. They defer reporting. They believe it is a private matter. They're ashamed. They're hoping it's going to go away — those kinds of things. And so respecting privacy in these cases, in accord with federal law, is the crux of this case.

JACK STRIPLING: So let me ask broadly about one of the policy proposals you did put out there, which was you want prospective faculty members to complete questionnaires that relate to any history they may have had with sexual assault, sexual harassment, or research misconduct. So would this just affect incoming faculty, or is it broader than that?

ELI CAPILOUTO: It affects incoming faculty during the hiring process. It's really something we did in athletics in the Southeastern Conference. Before a student can transfer — a student athlete — we use a similar questionnaire. Ours includes not just if you've been involved in any misconduct related to sexual harassment, but for faculty, we'll also ask about scientific integrity issues.

JACK STRIPLING: Does this mean that you might have a host of coaches, staff, and other administrators who are not given this type of questionnaire? Is that a problem?

ELI CAPILOUTO: I think this had routinely gone on, but on an informal basis. I know anybody I've hired, I've typically asked these questions. We're just trying to formalize it.

JACK STRIPLING: Is it fair to surmise that somebody with this in their history would not be hired by the University of Kentucky?

ELI CAPILOUTO: They have to answer the questionnaire, and then it's fully assessed.

JACK STRIPLING: Talk to me a little bit about this particular case that's caught a lot of attention. The Kentucky Kernel is your student newspaper. They've done some reporting on a professor, who has since left, who was accused of sexual harassment, I think, at first, and now reports show sexual assault. Tell me a little bit about this case, where things stand with it.

ELI CAPILOUTO: Yeah. It's a quirk in Kentucky law that the entity that issues an open-records requests — if you disagree with it, it's appealed. You don't want to provide the records, they can appeal to the attorney general.

If the attorney general —

JACK STRIPLING: To clarify in this case — I'm sorry — since viewers may not know, the student newspaper filed a public-records request for documents related to this case.

ELI CAPILOUTO: Right.

JACK STRIPLING: You released some of them, not all of them.

ELI CAPILOUTO: Some of the documents were released. Information about the end of the faculty member's tenure at the university — that was released. But what was asked for is almost every shred of evidence associated with a sexual harassment, sexual assault, investigation — everything.

JACK STRIPLING: And why did the university conclude it shouldn't release those full records?

ELI CAPILOUTO: We think it's clear under Ferpa, under federal law, that this is a student record that shouldn't be released.

JACK STRIPLING: Let me ask more broadly about this sort of pickle that universities find themselves in here. The accused have rights. The victims have rights. There are a lot of considerations to be had here.

At the same time, you have a moral and ethical obligation, presumably, to inform people when a faculty member who might be hired elsewhere has been accused of something as egregious as this. Is it fair to assume that absent the student newspaper's reporting on this that no one would ever know these allegations had been made against this professor?

ELI CAPILOUTO: I've never met with this professor. I've never reviewed this professor's file. This professor's case, I believe, was determined in January or February. The article didn't come out until August. The person was never employed in the job market.

JACK STRIPLING: Well, right. That sort of proves my point, though, that until the Kernel did this reporting, it wasn't known that this man had faced these allegations. Correct?

ELI CAPILOUTO: There's referencing that goes on all the time.

JACK STRIPLING: Expound on that.

ELI CAPILOUTO: Before I hire anybody, I'll call members of their department. I'll call others to get references. I don't know if that was done. I'm just saying that that's typical in higher education.

You can't make the assumption that anybody's situation or anything about their past wasn't revealed. And as I said before, this is a question I would typically ask of anybody I employ.

JACK STRIPLING: And in that case, would the institution be obligated to disclose that information? Hey, we did have an investigation into this. In fact, there was never a finding of responsibility in this particular case. Am I right?

ELI CAPILOUTO: We released that information as part of this — the agreement that this person ended his employment at the University of Kentucky.

JACK STRIPLING: Right. I guess I'm just trying to figure out how people appropriately reference these issues. And you're saying you get calls all the time about prospective hires and so forth. In those types of cases, would the university disclose, yes, this person was employed here. And not only that, he or she was accused of sexual harassment.

ELI CAPILOUTO: I think it would depend on the circumstances around a particular case. Now what I do hope is that the step we're taking would be embraced by the larger academic community, because if everybody's asking that question, or asking someone to complete a questionnaire on those issues, I think we would fulfill our responsibilities to one another.

JACK STRIPLING: I see. So you see that as the road to broader information and compliance? One of the things that has come up in this case is the difficult optics of a university suing a student newspaper. It's an independent newspaper.

As you say, it's a quirk of the law. If you want to challenge attorney general's ruling in this circumstance, you have to sue the newspaper, as I understand it. At the same time, some of your faculty aren't too happy about this. And they're not too happy about the way you've characterized the newspaper's reporting around this, calling it salacious and seeking readership and so forth.

Do you have anything to apologize for? You've been asked to apologize to the paper.

ELI CAPILOUTO: No. If you have met with victim survivors as I have — if you have met with the victim survivor activist group as I have and you recognize the scars that come with these cases that are there for life — if you recognize how privacy is so important to reporting, but also recovering from this — to have a student newspaper provide so much information in an article that anybody in 15 minutes could most likely identify the victims of assault, that is a serious matter.

JACK STRIPLING: And you think in this case that information that could have identified the victims was published by the paper?

ELI CAPILOUTO: I think you should read their affidavits. They have filed two in this case. And they make clear that they've been revealed against their will.

JACK STRIPLING: And you think that may have a chilling effect on future reporting on your campus?

ELI CAPILOUTO: Our data show that. We're down nearly a half in the fall, which is a critical time where you want students to report. Last year, we had about 59 cases reported. This year, we're down to 38, I believe.

JACK STRIPLING: Let me shift gears completely.

ELI CAPILOUTO: Sure.

JACK STRIPLING: I want to ask about other initiatives that are underway. And the most recent thing that you've rolled out, that will be of broader interest to our viewers, does have to do with how you're dealing with student aid.

ELI CAPILOUTO: Yes.

JACK STRIPLING: And you've got an interesting proposal in place where you're moving much more toward need-based aid where you have had, I guess, about 90 percent merit-based aid prior to this. Talk to me about the motivations here. Why is this happening? Why is it important?

ELI CAPILOUTO: Sure. This is another case where Kentucky has had a long-term commitment to improving student success. I commend our provost, Tim Tracy, who took a fresh look at this. And as we focused on a variety of things — there's never a silver bullet in improving student success — so we looked at a variety of factors. But one I'll talk about now is adjusting our financial aid.

And I'll just give you one statistic that I think frames it. We had about 900 students who didn't return out of a freshman class of nearly 5,200. We took a close look at them. You would think that the first hurdle would be an academic stumble. But that wasn't the case.

In fact, a third of these students had a GPA of 3.0 or higher on a four-point scale. The provost compared those students with a 3.0 who returned and those students who did not return. Of the group that returned, when you look at the cost of their education and the resources they could bring to it — either family resources, scholarships, and so forth — they had $900 more than the cost of the education.

If you look at that group that did not return, on average, they had an unmet financial need of $6,100. The provost also showed, through some nifty analyses, that once you hit that $5,000 mark of unmet financial need, and as it increases, the retention rates drop precipitously.

JACK STRIPLING: So you see a direct correlation between this unmet need and your graduation rate —

ELI CAPILOUTO: We do.

JACK STRIPLING: — which is over 60 percent, we should say. But you're not satisfied with that.

ELI CAPILOUTO: Right. There are 150 universities out of 3,500 or so that have a graduation rate of 70 percent or higher. We want to do that, not just to achieve a goal, but more importantly, to better serve Kentucky.

JACK STRIPLING: Well, we'll follow with interest what happens there and the other issues we've talked about. Thank you so much for coming.

ELI CAPILOUTO: Nice being with you. Thank you.

Jack Stripling covers college leadership, particularly presidents and governing boards. Follow him on Twitter @jackstripling, or email him at jack.stripling@chronicle.com.