University of Kentucky victims seek to join lawsuit against student newspaper

KENTUCKY—Two of the victims reportedly detailed in a sexual assault and harassment investigation at the University of Kentucky are seeking to join the university in its lawsuit against the school’s student newspaper.

The case follows a months-long open records battle between the university and its independent student newspaper, the Kentucky Kernel, over documents relating to sexual misconduct accusations against former associate professor, James Harwood.

The victims, labeled Jane Doe 1 and Jane Doe 2 in a brief filed Monday in Fayette Circuit Court, say that news stories covering the case have already sufficiently informed the public about Harwood and his reported sexual misconduct.

“Although the victims believe that sufficient information should be disclosed to warn about Harwood’s actions (facts that are now publicly known), the victims adamantly oppose the disclosure of additional highly personal records about them that may lead the media or other interested persons to discover their identities,” the brief says. “As the media’s interest in the victims’ story has persisted, the line between the laudable goal of transparency and the blatant invasion of privacy has been crossed.”

Tom Miller, the Kernel’s attorney, said he will oppose the motion, but it will likely pass at the discretion of the judge.

In an objection filed Tuesday, Miller wrote that the motion involves a question strictly of law and whether the records were public records — not necessarily a matter of who was impacted.

“There is neither any basis nor necessity for granting what is effectively a motion to intervene,” he wrote.

In the brief, Miller also noted concerns surrounding a potential conflict of interest between the victims’ attorney and the University of Kentucky.

The victims, according to the Lexington Herald Leader, are being represented for free by Daniel A. Cohen, an Atlanta-based attorney with the Washington law firm Baker Donelson. Cohen specializes in assisting universities with Title IX and campus sexual assault investigations. The firm, the brief notes, also represents the University of Kentucky, though information regarding the university and the firm’s ties appeared to have been removed from Baker Donelson’s website just prior to Miller’s filing of the motion.

The brief cites a July 2015 Ethics Reporter issued by the Kentucky Legislative Ethics Commission which found that the UK Research Foundation had ended a nine-month, $108,000 lobbying contract with Baker Donelson. According to the Center for Responsive Politics, the university paid Baker Donelson $50,000 in 2015 for lobbying efforts done on behalf of UK.

Cohen did not respond to requests for comment.

While Miller says the university is already ably represented, UK spokesperson Jay Blanton said he supported the victims’ motion to join the suit.

“The university’s steadfast belief has been — and continues to be — that only victim-survivors should be able to choose when, how much, or even if to tell their stories,” he said in an email to the Student Press Law Center. “We hope the Office of the Attorney General and the Kernel will agree with this motion, which is customary in cases like these, to allow the voices of victim-survivors to be heard in this case. We should all want to hear their stories — directly from them in an unfiltered manner of their choosing. That has always been what is at stake in this litigation.”

The lawsuit follows a battle over public records that began in April when then editor-in-chief Will Wright requested documents that detailed an investigation into multiple complaints of sexual misconduct by Harwood toward students.

Marjorie Kirk, the Kernel’s current editor in chief, was unavailable for comment at press time.

UK investigators discovered enough evidence to take disciplinary action against Harwood but, before the case could reach a hearing, Harwood tendered his resignation in February under a provision in his university employment agreement, remaining salaried with benefits until his resignation in August.

Because his resignation precluded a hearing, the victims who filed complaints against Harwood will not be able to appeal the decision, and the investigation will not be disclosed if he applies for a job elsewhere.

When the Kernel requested additional documents, the university refused, citing privacy concerns. UK also denied Attorney General Andy Beshear’s office access to review the documents after the Kernel appealed the university’s decision to withhold the records, prompting Beshear to find UK in violation of the state’s open records act and to demand the documents be released. UK then sued the Kernel in an attempt to overturn Beshear’s ruling.

During that time, the Kernel came into possession of a 122-page investigation document, with the victims’ names and identifiers redacted, from an anonymous source related to the case. The documents contained details including a number of accusations against Harwood for sexual harassment and assault from multiple complainants. 

University officials would not confirm the authenticity of the documents acquired by the Kernel, but the newspaper reported that the report was signed by the university’s deputy Title IX coordinator, Martha Alexander.

Since the university filed suit against the Kernel, university President Eli Capilouto and the school’s administration have faced local and national criticism for making such an unusually aggressive move against their own students, including condemnation from UK professors and members of its Board of Trustees.

On Friday, according to Lexington’s local news affiliate WKYT, students marched through the university’s campus to bring attention to sexual assault on campus and to call for the release of records relating to sexual assault investigations.

Many students carried signs and gathered in front of Capilouto’s home chanting, “Protect your students, not your reputation,” WKYT reported.

Nearly 160 miles southwest of UK, Western Kentucky University has denied its student newspaper’s request for employee sexual misconduct records, citing multiple Kentucky Revised Statutes and the ongoing litigation between UK and the Kernel.

According to a report by the newspaper, the WKU Herald, Andrea Anderson, assistant general counsel and Title IX coordinator, wrote “WKU is aware of the ongoing litigation between the Kentucky Kernel and the University of Kentucky…Should the matter resolve with the court ordering production of UK’s Title IX investigative files, WKU will supplement this response.”

SPLC staff writer Mary Tyler March can be reached by email or (202) 478-1926.

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