Kentucky Kernel Takes the Right Stand Against University

(Bloomberg View) -- The University of Kentucky is suing its own student newspaper to stop the publication of documents relating to a report of sexual assault and harassment. The case, which is expected to be resolved this month, pits federally guaranteed student privacy rights against the First Amendment and the public’s right to know. It also involves policy questions about how universities should handle sexual misconduct. Privacy for victims -- and for those who might be accused and then cleared -- is extremely important. But freedom of the press outweighs those interests, especially because universities are at the center of a significant struggle to determine the best way to deter and punish such cases.

The Kentucky case began with charges of sexual assault and harassment against James Harwood, an associate professor of entomology. Two people went to the university’s equal opportunity office to complain about Harwood; the allegations involved five victims in total.

Like all universities that receive federal funding, the University of Kentucky has a Title IX coordinator whose job it is to investigate such complaints and ensure that the university isn’t a hostile work and study environment on the basis of sex. The coordinator produced a 122-page report on Harwood that concluded, “There is enough evidence for a reasonable person to believe the alleged behavior occurred.”

That finding would have referred the case to the university’s Sexual Misconduct Hearing Board, which would presumably have sanctioned Harwood. Before that could happen, Harwood reached an agreement with the university for an “informal resolution.” As part of that agreement, Harwood resigned.

Under the University of Kentucky guidelines, and those of most universities, a resignation ends the case. The legal logic is that if the harasser won’t be around anymore, the campus isn’t subject to the hostile threat that the harasser has posed.

Although it hasn’t been reported to my knowledge, it’s highly likely that as part of the agreement with Harwood, the university agreed not to speak about Harwood’s actions. Such agreements are common, and in general not unlawful.

They’re also useful to the universities. The promise of confidentiality gives the harasser an incentive to leave, and the resulting public silence helps avoid bad publicity.

The problem with such informal resolutions is that they cut against the interest of the university community in knowing what happened -- and in learning how the university deals with sexual misconduct.

In the Kentucky case, the two complainants went to the student newspaper, the Kentucky Kernel, to try to find out what had happened. The paper asked the university for its report on Harwood. When the university refused, the paper appealed to the state’s attorney general.

The Kentucky attorney general ruled in favor of the newspaper, and ordered the university to release the report with students’ names redacted to protect their privacy. But the university, citing privacy, refused. Someone from within the university then leaked the report to the Kernel.

The student newspaper played it safe. Rather than publishing the whole document against the university’s protests, it reported on the contents. The university’s lawsuit, which names the paper and the attorney general, is demanding that the paper not publish the whole leaked report.

The university’s legal rationale for student privacy comes from the Family Educational Rights and Privacy Act. The law, known as FERPA, keeps student records from entering the public domain. It’s a useful and important law. The university claims that publishing the investigative report about Harwood, even with student names removed, would compromise the identities of the victims.

In general, that’s a reasonable concern. If victims think that their identities won’t be kept private, they will probably be less likely to bring complaints to the university. And though this case doesn’t raise the issue directly, there’s an important privacy interest for students who are accused of harassment or assault but are cleared after an investigation.

Yet once a newspaper is in possession of a document, First Amendment concerns enter the picture -- and dictate that publication should be covered by freedom of the press. Student privacy interests aren’t greater than national security interests, yet various WikiLeaks publications of classified material are (and should be) First Amendment-protected.

The importance of a free press is especially great where major public policy decisions are being taken behind closed doors. That’s the case for universities today, where the questions of how to prevent sexual assault and harassment and how to handle complaints are pressing issues.

The public needs to know about how universities handle such cases -- and the commonplace nature of informal resolutions and confidentiality agreements makes that extremely difficult. I don’t know a single professor who hasn’t been told on occasion by university general counsel that a case has been resolved by confidential agreement -- and that the professor, as an employee and officer of the university, should therefore not talk about the underlying conduct or investigation.

That’s what a free press is for -- and at a public university, a student newspaper like the Kernel has as much First Amendment protection as a national publication.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

To contact the editor responsible for this story: Stacey Shick at sshick@bloomberg.net.