Kentucky Supreme Court decision in Kentucky Kernel case could affect Herald lawsuit, attorney says

The City of Bowling Green and Warren County have jointly declared a state of emergency as coronavirus continues to spread across the Commonwealth, although no confirmed cases have been reported in south-central Kentucky.

Debra Murray

The Kentucky Supreme Court decision has ruled in favor of the Kentucky Kernel in an opens records lawsuit from the University of Kentucky. 

In Sep. 2016, the University of Kentucky sued the Kernel after the Kernel filed an open records request “to obtain all investigative records for all Title IX investigations into sexual misconduct allegations levied against university employees in the past five years.” 

WKU similarly sued the Herald to avoid turning over sexual misconduct records in 2017. 

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The KY Supreme Court decision has ruled in favor of the Kernel in an open records lawsuit from the University of Kentucky, upholding the ruling in the Court of Appeals, which could benefit the Herald lawsuit requiring the university to turn over records. 

Michael Abate is an attorney at Kaplan Johnson Abate & Bird LLP who represents the Herald on the on-going case between the university and the Herald. 

Abate said both universities were making many of the same arguments against disclosure, which is important because it shows why WKU should release these records.

While both cases have many similarities, for WKU any students involved in sexual misconduct would be hard to identify in comparison to the smaller graduate department program at UK. Regardless, the Herald did not ask for any students to be identified.

“The cases were different in certain respects. Western had a much stronger [argument] than the UK one,” Abate said. “There’s some discussion of the privacy concerns of the UK students who might be identifiable because there were a small number of female grad students in the particular department. In the case of Western, there’s none of that. We don’t know who the students are [and] we’re not asking the students to be identified. We’re simply asking that the faculty members who are under investigation be identified.”

Based on the decision, it is likely the Herald lawsuit will be able to move forward, Abate said. 

“This is going to be an extremely important case for years to come, not only for FERPA and questions of student records and university investigations,” Abate said. “We’re very pleased with it. We hope that Western Kentucky University will do the right thing here in response to the decision.”

Debra Murray can be reached at [email protected]. Follow her on Twitter @debramurrayy.