Federal judge smacks down Northern Kentucky's reliance on FERPA privacy to keep secrets in student's sexual-assault lawsuit

When a Northern Kentucky University student filed a federal lawsuit alleging that the college responded inadequately to her complaint that a basketball player raped her in a campus dorm, NKU went into full “FERPA coverup” mode.

The university’s lawyers claimed that the federal student privacy statute made essentially everything about sexual assault on college campuses a federally protected secret. They argued:

(1) The college’s athletic director couldn’t be questioned about how he handled a sexual-assault complaint against an athlete.

(2) The university couldn’t turn over records documenting its handling of past rape complaints.

(3) The entire court file needed to be placed under seal and all participants in the trial gagged from making public comments.

Now, a U.S. district judge has answered NKU’s FERPA claims: Nope, nope and nope.

It’s well-documented that colleges and schools abuse FERPA to conceal scandal under the guise of “student privacy,” most notably at the University of Kentucky, where the college’s president took the nearly unprecedented step of suing his own students’ newspaper to keep a lid on UK’s questionable handling of sexual misconduct complaints against a professor.

But even by the assertive standard set by other higher-education institutions, Northern Kentucky’s reliance on FERPA has been aggressive — so aggressive that Senior U.S. District Judge William O. Bertlesman took the unusual step of sanctioning NKU’s legal counsel for obstructing a witness’ deposition with unfounded claims that testifying about how the university handles rape complaints against athletes would violate FERPA. 

In the lawsuit, brought under the federal Title IX gender-discrimination statute, plaintiff “Jane Doe” alleges that she was sexually assaulted during the fall of 2013 within weeks of arriving at Northern Kentucky as a freshman. She brought a disciplinary complaint resulting in a finding that the accused student, a member of the NKU basketball team, did commit sexual assault, but the player was allowed to remain on campus under a “no-contact” order that, the lawsuit alleges, went unenforced. 

Title IX allows for civil lawsuits against federally funded educational institutions if they discriminate on the basis of gender, which includes subjecting students to severe and pervasive gender-based hostility. The law has been interpreted to permit students to recover civil damages if there is proof that the institution fails to take sexual assault seriously. 

During October, Judge Bertlesman has entered three orders in the case of Doe v. Northern Kentucky University that reflect a commonsense understanding of FERPA as its authors always intended: A narrow prohibition against disclosing students’ educational records as a matter of routine practice, not a prohibition against releasing documents or answering questions as part of a lawsuit.

In an Oct. 18 order, the judge refused to grant the wide-ranging secrecy order that Northern Kentucky sought, which would have forbidden Doe or her counsel from discussing the case publicly or releasing any documents about the case, and sealed the entire court file — all drastic departures from the normal rule that court proceedings and records are open to the public. News organizations, including the Cincinnati Enquirer and the Northern Kentucky Tribune, filed briefs opposing closure, disputing the university’s claims that publicity would bias potential jurors and that FERPA required sealing the university’s filings.

On Oct. 27, the judge ordered NKU — over its FERPA-based objections — to produce “all documents and education records relating to any allegations of sexual assault, sexual misconduct, rape, and/or unwanted advances that occurred on campus and in offsite living quarters in the last seven years.” This specifically includes two other incidents involving NKU basketball players, one in February 2015 and one in March 2016.

The judge also imposed sanctions, including attorneys’ fees, because of the obstructionism of Northern Kentucky’s legal counsel, Patsey E. Jacobs of Sturgill, Turner, Baker & Moloney of Lexington, during an Aug. 25 deposition of Athletic Director Ken Bothof.

During the deposition, Jacobs interrupted at least a dozen times to instruct Bothof not to answer questions on the grounds of FERPA. The objections centered on questioning by Doe’s counsel about how Bothof responded when notified of a different allegation of sexual assault against NKU basketball players, this one in 2015. Jacobs claimed FERPA precluded asking questions about how Bothof learned of the allegations, whether he asked the players if they committed sexual assault, and how he decided to let them continue playing despite the accusation. 

When a witness is under oath during a deposition, his counsel is allowed to intervene only in extreme circumstances, such as when the questioning would force the witness to disclose a privileged attorney-client communication.

In Bothof’s case the objections were unfounded, Judge Bertlesman ruled, because FERPA protects only against the disclosure of education records, and does not apply to the personal observations and recollections of witnesses. 

Judge Bertlesman’s refusal to throw the FERPA secrecy blanket over the NKU case aligns with a comparable case against the University of North Carolina-Chapel Hill in 2004, in which UNC similarly tried to seal the records of a student-athlete’s sexual-harassment lawsuit. There, too, the judge determined that FERPA applies only to the disclosure of school-maintained “education records” and not to records created in the course of litigation.

Together, these rulings reinforce just how limited the confidentiality shield of FERPA truly is, despite the frequent insistence of school and college lawyers to the contrary. Attempts to conceal records documenting events of great public importance — and it doesn’t get much more important than the sexual assault of students — should be viewed with deep skepticism and, where possible, challenged legally.