UK vs. Kentucky Kernel newspaper | What we know

The University of Kentucky's ongoing dispute with its student newspaper over the school's decision to withhold records regarding a sexual misconduct investigation has attracted national attention and sparked action by Attorney General Andy Beshear.

The university's lawsuit against the Kentucky Kernel could come up for discussion Friday when the UK Board of Trustees convenes in Bowling Green, although that issue isn't specifically listed on the day's agenda.

The Courier-Journal takes a look back at how this saga began and the issues that are at stake:

Request denied for documents on sexual harassment case

In April, a Kernel staff member asked for copies of records related to an investigation of possible sexual misconduct by a UK professor. The university denied that request, and the student newspaper appealed UK's decision to the Attorney General's Office.

The documents UK withheld concerned an associate professor of entomology named James Harwood, whom the university investigated after he was accused of sexual harassment. Harwood denied the accusation against him but did resign as part of a settlement agreement with the university under which he continued to receive his salary through the end of August.

Beshear rules against UK

In August, Beshear issued a decision saying UK violated the state's open records law in its handling of the Kernel's request. Beshear noted the university refused his own office's request to inspect the documents UK withheld.

The attorney general's decision said a graduate student informed the university about Harwood's alleged sexual harassment, although UK said it wasn't a written complaint. Beshear said in his decision that "there is no means by which to assess the seriousness of the allegations or the appropriateness of the terms of settlement."

"We do not believe that the public can ascertain from the already disclosed portions of the record that the (university) has faithfully performed the purpose," to "promptly, responsibly and thoroughly" investigate the tenured professor against whom these allegations were made, Beshear said in his decision.

UK sues the Kernel

After Beshear issued his decision, the university sued its own campus newspaper. UK can legally appeal the attorney general's decision but is not allowed to name Beshear as a party in the lawsuit.

UK spokesman Jay Blanton said the university's argument is not with the Kernel but with the opinion the Attorney General's Office issued. "We believe strongly that this case is about the protection of the confidentiality and privacy of victim survivors of sexual assault," Blanton said in a statement.

This isn't the only legal challenge UK has mounted over attorney general opinions, and university President Eli Capilouto sent out a statement about the appeals to the campus community.

Beshear gets involved

This week, Beshear announced that he will ask a judge to let him intervene in UK's lawsuit against the Kernel. He also said he will ask the court to rule that UK must allow his office to inspect the withheld documents, the contents of which his office must keep confidential.

Tom Miller, who is representing the Kernel and the Lexington Herald-Leader in lawsuits UK recently filed over attorney general opinions, said the Kernel appreciates Beshear’s motion to intervene in the case.

The Kernel already has the documents UK withheld

The Kernel has published details from the records the university refused to hand over, which another source gave the newspaper. The Kernel reported that Harwood was accused of both sexual assault and sexual harassment. The Kernel also reported that the victims' spokesperson said the victims want these documents to be public, although names and identifying information should be redacted.

National notice

Frank LoMonte, executive director of the Student Press Law Center, said this case has garnered attention from people across the country. “It’s just pushing the outrage button nationally because there really aren’t two sides to this story,” he said.

“It’s like they’ve appointed themselves as the last word on whether records are public,” LoMonte said of UK.

According to Beshear’s open records decision, one argument UK introduced to support withholding certain records on Harwood was based on the Family Educational Rights and Privacy Act, although the attorney general said he wasn’t prepared to accept the university’s characterization of these records as being protected by FERPA.

“It couldn’t be clearer that investigative documents about employee misconduct are not confidential education records,” LoMonte said. “You’ve got accusations that could very well rise to the level of criminality and a closed case where there’s no longer an investigation going on, so none of the normal privacy arguments apply whatsoever.”

Although the Kernel has successfully been raising money to pay for its legal defense, LoMonte said UK has to know that campus newspapers like the Kernel are in financially precarious positions.

“It is a very difficult economic time for college journalism, just as it is for professional journalism, and the university has to know that defending a lawsuit could bankrupt a college publication,” he said. “To risk destroying a priceless educational opportunity for students just so that you can keep employee misconduct secret speaks to some really deep mismanagement problems at this institution.”

A GoFundMe campaign to raise money for the Kernel’s legal expenses has collected more than $11,000 so far, and the Kentucky Press Association’s Legal Defense Fund has announced that it will give up to $7,500 to the Kernel.

Reporter Morgan Watkins can be reached at (502) 875-5136 or mwatkins@courier-journal.com.