FOR IMMEDIATE RELEASE JULY 28, 2017
Contact: Hadar Harris, Executive Director (202) 785-5450 / hharris@splc.org
A coalition of open-government groups led by the Student Press Law Center has thrown its support behind college journalists battling for access to public records about sexual harassment investigations against employees at the University of Kentucky.
In a “friend-of-the-court” brief filed with the Kentucky Court of Appeals, the SPLC and seven other press-rights organizations ask the judges to overrule an errant lower-court decision that allowed the University to conceal the entire investigative file of an employee-misconduct case on the grounds that some of the records contain information about students.
“The public has a clear right—and need—to know if its state-funded universities are sweeping findings of sexual misconduct under the rug and allowing perpetrators to remain in place or move on to other institutions where they can target new victims,” says the brief, filed Sept. 8. “Unfortunately, history shows that universities, like other institutions, routinely abuse ‘privacy’ arguments to sweep unwelcome controversies under the rug or make their problems someone else’s.”
The University of Kentucky is suing its own students’ newspaper, the Kentucky Kernel, in an unorthodox “reverse-FOIA” lawsuit. The University sued to challenge a ruling by Attorney General Andy Beshear that the records must be produced to the newspaper because the University failed to prove that they are “education records” covered by the Family Educational Rights and Privacy Act, the federal student privacy law.
University lawyers convinced a lower-court judge that FERPA does apply to the records — even with student identities removed — because they pertain to student complainants.
The amicus brief was prepared and filed by attorney Michael P. Abate of Kaplan & Partners LLP in Louisville. Abate is counsel to the student newspaper at Western Kentucky University, the College Heights Herald, which is defending itself against a similar lawsuit over the same set of records at WKU.
The brief points out that reporters have regularly obtained comparable public documents from other colleges, including four in Kentucky, with no adverse consequences and no enforcement action by the U.S. Department of Education, which has sole authority to enforce FERPA.
Although the University is claiming that every document requested by the Kernel is exempt from the state open-records act because it is a student education record, the brief notes that many of the withheld documents have nothing to do with students, including copies of a former professor’s résumé, emails about scheduling a personnel hearing, and a settlement agreement under which a professor agreed to resign from the University. None of these records, the brief argues, can defensibly be withheld under FERPA as “education records.”
While University lawyers insist that UK will be at risk of crushing federal financial penalties if the records are disclosed, the brief points out that no institution has ever been fined in the 43-year history of FERPA, and that the federal government is constitutionally forbidden from de-funding an entire educational institution merely for answering a request for public records.
In addition to the SPLC, the brief was signed by the Kentucky Press Association, the American Society of News Editors, Associated Press Media Editors, the Association of Alternative Newsmedia, the College Media Association, the Reporters Committee for Freedom of the Press and the Society of Professional Journalists.
The Student Press Law Center is an IRS 501(c)(3) nonprofit founded in 1974 to provide legal support for those working in student journalism nationwide. The SPLC advocates for openness and accountability in educational institutions through rigorous enforcement of state and federal disclosure laws.