Herald files notice of supplemental authority in WKU lawsuit

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Jeremy Chisenhall

The College Heights Herald and Kentucky Kernel filed a joint notice of supplemental authority in Warren Circuit Court on Wednesday, arguing that recent developments in WKU’s lawsuit with former Student Government Association President Andi Dahmer are relevant to the ongoing lawsuit between the university and the student newspapers. 

The notice came after the U.S. District Court for the Western District of Kentucky ordered WKU to turn over documents related to Dahmer’s Title IX investigation. WKU had argued that the documents couldn’t be released to Dahmer because the they were protected by the Family Education Rights and Privacy Act. The judge ruled that WKU’s interpretation of FERPA was too broad, and that the university must turn the documents over. 

WKU was given 14 days to object, but did not do so. 

With the ruling, the Herald’s notice argues that the same types of records are at issue in the case of WKU’s lawsuit against the Herald over faculty and staff sexual misconduct records. 

“First, the court rejected WKU’s attempts to use FERPA to shield the very kinds of records at issue in this case: complaints about alleged faculty misconduct,” the notice stated. It went on to quote the court’s ruling. “‘Complaints against university employees are not education records protected from disclosure by FERPA.’”

The notice also argued that the court’s rejection of WKU’s request to withhold student witness statements in the Dahmer case pertains to the Herald case. The court also rejected WKU’s assertion that FERPA prevents the university from disclosing settlement agreements. 

The notice also maintains that the Herald does not take issue with redacting the names of students involved in the documentation of sexual misconduct cases against faculty and staff.

“To be sure, the court recognized that information about students mentioned in the records may require a protective order to accommodate their privacy interests,” the notice stated. “But those same interests will be served in this case by redacting the names of the students from the requested records—as Defendants have always agreed is appropriate.

“But there is no basis under FERPA or otherwise to shield the substantive information in these documents, as the federal court held. WKU’s attempt to hide its own conduct behind claims of ‘student privacy’ must be rejected by this Court too.”

A federal judge ruled in favor of releasing the documents to Dahmer on April 23. Dahmer filed her lawsuit against WKU, President Timothy Caboni, Title IX Coordinator Andrea Anderson and Director of Student Activities Charley Pride on Aug. 31, 2018.

WKU’s lawsuit against the Herald has not been on the Warren court docket since April 6, 2018. Attorneys for WKU and the Herald presented oral arguments in court on that date.

WKU argued that the documents requested by the Herald were protected by FERPA. The Herald argued that the documents did not contain educational records and therefore were not protected by FERPA.

The judge is considering allowing Attorney General Andy Beshear to review the requested documents under Kentucky’s Open Records Act, but so far has issued no ruling on that point.  

Editor-in-Chief Jeremy Chisenhall can be reached at 270-745-6291 and [email protected]. Follow him on Twitter at @JSChisenhall.