Judge Sides With U. of Kentucky in Fight Over Openness and Privacy

[Updated (1/24/2017, 3:40 p.m.) with additional details and reaction.]

A Kentucky Circuit Court judge has ruled in favor of the University of Kentucky in its lawsuit against the university’s student newspaper, which had been seeking records regarding sexual-assault allegations against a professor.

Judge Thomas L. Clark found that the investigation file involving the professor, James D. Harwood, was protected under the Family Educational Rights and Privacy Act. Mr. Harwood, an associate professor of entomology, left the university before his case was adjudicated. He has denied the allegations against him.

The case captured national attention because it highlighted questions about how universities should balance the interests of transparency and privacy in cases of alleged assault and harassment. The university had argued that publicity from the case had made victims more reluctant to come forward.

Kentucky’s president, Eli Capilouto, said in a written statement that the university was “gratified” by the outcome but added that the university had more work to do.

“Our next step — no matter how the legal process unfolds — must be to reform a system that is imperfect in the way it safeguards the interests of victims and the accused,” Mr. Capilouto said. “We have started on the path of reform already, significantly increasing training for both faculty and graduate students about the parameters of acceptable behavior. Now, we will be working with faculty, student, and staff leaders to ensure that someone who wants to join our community must disclose any record of sexual misconduct in their past.”

Marjorie Kirk, editor in chief at the student paper, the Kentucky Kernel, disagreed with the ruling and said the Kernel would appeal it.

“I was definitely disappointed with the judge’s decision, but that has not stopped me or my staff from continuing to move forward with our own stories about this case and with our decision to appeal,” Ms. Kirk told The Chronicle.

Frank D. LoMonte, executive director of the Student Press Law Center, said the decision strengthened the argument that the federal privacy law can be expanded to cover allegations made against employees. The ruling, he said, applies a broad interpretation of the law that student publications have criticized.

“The result of this decision, if it’s not overturned, is going to make campuses everywhere less safe,” Mr. LoMonte said.

He argued that the judge had made a “blanket, all-or-nothing determination.”

Judge Clark cited previous cases in which the law, known as Ferpa, broadly defined how records “directly” related to students, writing in his decision that a record can “both relate directly to a student and a teacher.”

Further, Judge Clark said, the records could not be redacted to a degree that would sufficiently protect the accusers. The decision cited a previous ruling that said any amount of information would be enough for “skillful Googlers” to determine the identity of the person in question.

Mr. LoMonte said that sort of reasoning did not apply to privacy laws.

“The judge indulged some pretty far-fetched scenarios about members of the public sleuthing their way through university records in order to make an identification,” he said. “That’s taking privacy law to an absurd extreme.”

“Privacy law is about whether or not the documents themselves are identifiable,” he continued, “not whether some Sherlock Holmes is able to deduce the identity by doing additional sleuthing. By that logic, you could never produce or redact a document.”

Ms. Kirk, of the Kernel, agreed, saying that the pertinent information related to claims made against Mr. Harwood, not the people making the claims.

“It is absolutely possible to redact the necessary information to protect the survivor’s privacy,” she said. But in this case, the university would like “to limit as much of that information as they can from public disclosure to protect their own image,” she said.

Return to Top