A Public-Records Fight Raises Questions About a University’s Obligations

Michael Reaves

The University of Kentucky has sued its independent student newspaper, The Kentucky Kernel, in an attempt to shield information about the university’s investigation of a professor accused of sexual assault and harassment.

The professor resigned without a hearing or finding of misconduct, raising questions about the tension between a university’s obligations to protect privacy and the need for public disclosure.

The newspaper argues that it’s important for the public to know what prompted the complaints, filed by two students, against James D. Harwood, an associate professor of entomology.

The newspaper has reported that in documents it obtained independently, the students said that Mr. Harwood had sexually assaulted them during conferences related to their work or studies at Kentucky. He has denied the accusations.

Those students, along with three other men and women who worked in Mr. Harwood’s department, told the university that he had either sexually assaulted or harassed them some time between 2012 and 2015, the student newspaper reported.

The university contends that releasing the details of its investigation could jeopardize the privacy of both the accusers and the accused and that the findings were preliminary and thus should not be released.

U. of Kentucky

In an email to The Chronicle on Tuesday, Mr. Harwood denied the accusations that he had groped or made lewd comments to students.

“I cooperated with the investigation and denied the allegations,” he wrote. “I had witnesses in my defense.” He resigned, he wrote, “for immediate and pressing family medical reasons.”

After the university denied the Kernel’s open-records request for all of the documents related to the investigation, the newspaper appealed the decision to the state’s attorney general, Andy Beshear. He ruled in the newspaper’s favor, saying the records should be released with names and identifying information omitted. That prompted the university to sue the newspaper — the only way, a campus spokesman said, that it could challenge the attorney general’s decision. The university has also refused to turn those records over to Mr. Beshear’s office.

The university’s president, Eli Capilouto, explained that decision in a message to students, faculty, and staff last week.

While the university last year complied with more than 90 percent of open-records requests, he wrote, “in a handful of very specific cases, we are faced with the decision of whether transparency is more important than the need to protect the privacy and dignity of individual members of our community. It is not.”

That applies not only to alleged victims, but to those accused of wrongdoing, he added.

Mark Cornelison, Lexington Herald-Leader, AP Images

Jay Blanton, a spokesman for the university, said the “professor in question” won’t be employed at Kentucky after August 31 and hasn’t been on the campus for several months.

The Kernel reported that Mr. Harwood’s resignation agreement, signed in February, provided pay and benefits through that date. It also reported that the agreement allowed Mr. Harwood to avoid a sexual-misconduct hearing that a campus panel had recommended, based on its initial findings.

Mr. Blanton said the university had acted “swiftly and effectively” to deal with the matter. Less than eight months after the university received a formal complaint about Mr. Harwood, it had conducted a detailed examination involving interviews with several people, Mr. Blanton wrote in an email.

Protecting the privacy of the people involved is crucial, he contended.

“Our university cannot — and should not — decide when it is appropriate to violate a victim-survivor’s privacy — and a victim-survivor’s trust — by providing information to the Office of the Attorney General, the Kernel, or any other entity,” Mr. Blanton wrote.

The editor-in-chief of the student newspaper, Marjorie Kirk, challenged that explanation. The student newspaper does not publish the names of alleged sexual-assault victims and didn’t do so in this case, even after a source leaked the withheld records, she said. A representative for the student complainants made it clear that they wanted the details about their complaints published as long as their names were deleted, said Ms. Kirk, a senior.

Mr. Harwood “could go on to another university and his future employers would have no idea if we hadn’t been doing these stories,” Ms. Kirk said. “That frustrated the victims — knowing very well they might not be the last to suffer from this.”

Title IX, a federal gender-equity law, requires colleges to resolve complaints about sexual violence. But Neena Chaudhry, senior counsel at the National Women’s Law Center, said there is nothing in the law that requires a college to notify another institution about accusations lodged against an employee — though scholars, college officials, and others have recently grappled with questions of how to hold faculty members accountable if they are found responsible for misconduct.

“It’s the kind of question that’s cropping up more and more,” she said, both with accusations against faculty members and students. “What is the duty of an institution to another school to try to prevent repeat occurrences?”

Laura L. Dunn, founder of a victims’ rights group, SurvJustice, has tracked a number of similar cases involving students. She said accused students have sometimes withdrawn before being punished.

Wendy Murphy, a lawyer who helps college students file federal sexual-assault and sex-discrimination complaints, compared such cases to a professional facing ethics charges who resigns rather than face loss of licensure.

“It also resembles the church abuse problem in terms of moving bad guys around rather than stopping them and holding them accountable,” she wrote in an email. “Institutions are uniquely situated — physically and legally — to evade accountability, in part because the law expects them to self-police, to a large extent.”

Kentucky officials insist they’ve handled the case appropriately and that a court will have to decide whether the university’s responsibility to share information trumps “another sacred responsibility: protecting the privacy of our students, faculty, staff and those for whom we provide care.”

Katherine Mangan writes about community colleges, completion efforts, and job training, as well as other topics in daily news. Follow her on Twitter @KatherineMangan, or email her at katherine.mangan@chronicle.com.