Differing Doctrines: Herald, WKU agree on principle not on actions

Two Perspectives

Herald Editorial Board

The Issue: Both the Herald and WKU share similar philosophies when it comes to open records for Title IX investigations into faculty and staff found in violation of the university’s sexual misconduct policy.

Our Stance: While we both agree on the protection of victims and not needlessly dragging the names of the accused through the mud, it’s clear our principles on how to best do this is not the same.

For those of you watching at home or just tuning in, we at the College Heights Herald are expecting to be served papers for a lawsuit any day now.

We’ve previously touched on our impending legal battle in an editorial about how we came to this point, but we’ve run across people who are still a little confused about what all of this means. So we’ll run it from the top one more time.

In November, we submitted an open records request to WKU for “all Title IX investigations into sexual misconduct allegations involving WKU employees in the last five years.” WKU’s Office of the General Counsel denied our request, citing multiple Kentucky Revised Statutes and the then ongoing litigation between the University of Kentucky and the Kentucky Kernel, UK’s student newspaper. The Kernel had also previously submitted an open records request for the same information from WKU and was also denied.

In the original denial letter, the Office of the General Counsel disclosed WKU conducted 20 investigations into faculty and staff sexual misconduct since 2013. Of those cases, nine were of WKU faculty and 11 were of WKU staff. Six of the 20 investigations found violations of university policy, but all six employees resigned from the university prior to final action being taken.

In late January, UK won its lawsuit against the Kernel when a Fayette County judge ruled UK had the right to withhold documents about a sexual assault case involving James Harwood, a former associate professor at UK, according to the Courier-Journal. The Kernel plans on appealing the decision.

After the denial, we consulted with attorney Jon Fleischaker and then submitted the request again including Fleischaker’s opinion. The university denied the request saying it would revisit the matter once the UK and Kernel suit was settled. This lead us to file an appeal to the Office of the Attorney General.

The attorney general decided WKU had violated the Kentucky Open Records Act. WKU then decided to appeal the attorney general’s decision, which in part means WKU will sue the Herald as well as the Kernel as WKU had two options: to release the requested records or sue.

This is the timeline of events as far as WKU and the Herald are concerned. This matter has likely put WKU between a rock and a legal precedent. With the decision handed down in favor of UK in Fayette County and the Kernel’s plans on appealing that decision, WKU is in a sort of legal tailspin.

While the records the Kernel originally requested from UK and the records the Herald requested from WKU differ greatly, which Fleischaker agrees with us on this point, the legal loopholes surrounding these types of records are becoming increasingly hard to navigate in this state.

We have full confidence that if a ruling is made in the Herald’s favor for the records then WKU will comply with the law. However, with the Kernel’s intention to appeal it’s hard to determine where that will leave our case.

When it comes down to the brass tax, however, we know this is nothing personal against us from the university’s perspective nor would we want to it become such a thing. We even agree with the baseline philosophy the university is using to withhold these records: protecting victims and the accused.

We reached out to those in the Office of the General Counsel in hopes they would pen a letter to the editor detailing more of their stance on the matter. 

Seeing as WKU doesn’t feel the need to express their thoughts outside of a court of law, you’re stuck with our rantings for now.

President Gary Ransdell told a Herald reporter the decision to appeal was based on the university’s responsibility to all of its stakeholders.

“It’s important for people to know this is about us sorting through the most responsible way to handle sexual assault on campus, not the way this administration or university feels about its College Heights Herald,” Ransdell said.

However, while our baseline principles are similar the way we view going about this clearly differs.

WKU wants to protect the victims in the instances where it was found university policy was violated for sexual misconduct. So do we. This should have probably gone in the very first paragraph, or headline for that matter, to really hammer it home, but the Herald does not publish the names of victims of sexual assault. And we would only consider doing so with that person’s obtained and explicit permission.

Part of protecting victims means we don’t publish names, identify characteristics or explicit details surrounding their case, which was what the attorney general gave the university the option to do, redact names and personal identifiers, but they declined.

Perhaps the university is of the opinion that publishing this kind of information would deter people from reporting sexual misconduct. As opposed to having six people resign over violations for sexual misconduct and then dropping those cases altogether.

A lack of real justice is a deterrent for survivors of sexual assault to come forward.

The organization End Rape on Campus, citing a 2016 study by the Bureau of Justice Statistics, said seven percent of rapes on college campuses were reported to any school official and four percent were reported to law enforcement. Of course, reporting to the police and reporting sexual assault here at WKU are vastly different procedures.

Ransdell also said the best outcome for WKU would be to determine the best course of action “without making a media spectacle for victims and the accused.” This is a point where we also agree with the university. We don’t want to make any kind of spectacle, but we do not think a public employee should have their identity protected when they are involved in a matter of sexual misconduct.

If we get these records, we’re not going to rush to publish the names of the accused party before making sure we have the fullest context and not before we are able to reach out to them. Likely, they won’t want to comment, but we’ll still try.

There also remains a possibility that despite safety nets the university has in place, former employees who have violated policy end up working at other public institutions placing other people at risk. We cannot claim this to be a large, widespread occurrence but we cannot ignore the possibility outright.

No system is without flaw, above approach, or without critique and this includes the process of Title IX investigations.

At the end of the day, both the Herald and WKU want what’s best in the interests of both victims and the accused, which is why we’re still pushing.