Restricting Records: Title IX records would benefit victims, promote accountability

Records Race

Herald Editorial Board

The Issue: The attorney general has ruled that WKU violated the Kentucky Open Records Act by denying records of Title IX investigations to the Herald and the University of Kentucky’s student newspaper, the Kentucky Kernel.

Our Stance: By receiving these records, our intention is not to drag anyone’s name through the mud or publish sensationalized details of sexual misconduct or assault. Our purpose and intent remain the same as it has for 93 years, to hold the university accountable.

The Herald’s ongoing scuffle with the university over faculty and staff sexual misconduct records dates back to November when WKU’s Office of the General Counsel denied our request.

WKU, per university policy, defines sexual misconduct/assault as “actual or attempted sexual contact with another person without that person’s consent.” This includes, but isn’t limited to intentional and unwelcome touching, sexual contact when the victim isn’t able to consent and rape.

In the university’s denial letter, they disclosed WKU had conducted 20 investigations into faculty and staff sexual misconduct since 2013. Nine of these cases involved faculty members and 11 were staff; six of the 20 investigations found a violation of university policy, but all six resigned before the university took final action.

After a second denial, the Herald filed an appeal to the Kentucky Office of the Attorney General. One of the reasons for denial was the then ongoing litigation between the University of Kentucky and the Kentucky Kernel.

However, the premise WKU could deny the Herald records then based on ongoing litigation WKU was not party to is like saying your neighbor can’t borrow a cup of sugar because the guy down the street is out of sugar. We’re not asking the guy down the street; we’re asking our neighbor.

Since then, 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, which would be taken up by the Kentucky Court of Appeals.

When asked by the Herald, attorney Jon Fleischaker said he felt these cases strongly differ in the number of documents WKU is withholding and the number of instances where a university employee was found in violation of policy.

Additionally, the attorney general, in an extension letter to the Herald, said the reasoning for withholding records based on the litigation between UK and the Kernel was not upheld anywhere in the Kentucky Open Records Act.

But we don’t want to drag this legal jargon on as it’s likely of no real interest to any of our readers. This kind of talk is useful to the general counsel here, us here at the Herald and the attorney general. What we want to convey from here on out is the following: why we want these records and what we plan to do with them.

We do not want these records because we’re trying to be petty or vindictive or are trying to prove a point that the university shouldn’t mess with us.

Why we want these records is simple and goes to the heart of who we are as a newspaper. We want to better hold this university accountable and promote transparency. Now, as a newspaper, we freely throw around terms like “accountability” and “transparency” as if they’re candy at a Fourth of July parade, but allow us to elaborate.

We know the process involved in Title IX investigations and the steps taken for reporting incidents, but of the 20 investigations all we know are six resulted in findings of violations of university policy, but even that’s broad. What university policies were specifically violated, is there a pattern among these cases with what policies were violated, exactly how common is resignation before final action is taken?

What’s also important for us to know is if WKU did not take final action in these six cases, is there a paper trail which follows these people if they were to go to another university and get another job?

Furthermore, in the 14 other cases why did these not result in any final action or resignation? What can these cases tell us about the inner workings of Title IX investigations?

Why we want these records is not to accuse WKU of sheltering sexual assaulters or accuse them of some grand wrongdoing. What we will do is offer critiques of the Title IX process, investigate this more thoroughly and hold this process accountable and to the light, not to harm anyone but to help people.

Everyone benefits from a better working system that investigates and handles cases of sexual assault. The university benefits and most importantly, victims benefit.

We know talking and reporting about sexual assault can be a difficult issue.

It’s a sensitive subject that should be handled as such, which is exactly why the attorney general allowed for the university to submit these records with the identity of students redacted to protect the names and personal identifiers of students,

Let’s make this clear, it is not, nor will it ever be, the policy of the Herald to publish the names of rape and sexual assault victims. What we will do, however, is work with victims and encourage them to tell their stories if they’re comfortable doing so. Storytelling can be curative.

These records are not a singular moment for us at the Herald, but a new dawn of what we want to do as a publication to discuss and report on sexual assault and to bring this issue to the table.

We don’t want these discussions to be regulated to a single month when college students, both male, and female, are at a higher risk to be sexually assaulted than non-students, according to the Rape, Abuse & Incest National Network. We’re committing to work with victims and their advocates now more than ever before.

Finally, we’ve seen how contentious the battle between UK administration and the Kernel has been, and in some instances, it’s disheartening. We value the relationship we have with our administration and the openness they often show us.

We’d like to avoid a courtroom drama because that detracts from the gravity of our request and transforms this into a needless soap opera. If necessary, we’ll fight for these records, but as the UK and Kernel case has shown us, that tends to hurt victims more than helping them.

In true sincerity, we hope WKU releases these records not just for the benefit of transparency, but for the benefit of helping victims.