UK, Kernel ready for appellate court battle

Rick Childress

Both UK’s and the Kernel’s law teams have filed their arguments for the impending Kentucky appellate court decision.

This hearing comes after the Kernel appealed a January 2017 decision from a Fayette County judge who ruled in favor of UK in its lawsuit against the Kernel. This hearing will also be the next chapter of a long saga of court battles over open records disputes between the Kernel and some Kentucky public universities.

Neither side of the UK vs. Kernel lawsuit has changed its opinion.

UK maintains that it cannot release documents pertaining to a sexual misconduct investigation on a former professor because student privacy laws prevent the university’s releasing of those documents.

“We believe that victim-survivors—and only victim-survivors—should make the decision about whether or when to tell their stories and how much information to disclose. Our unwavering belief in that constitutional privacy right has not changed,” UK spokesman Jay Blanton said.

Tom Miller, the Kernel’s attorney, wrote in the Kernel’s argument that UK is using those student privacy laws as an “invisibility cloak” to cover up “its employee’s misconduct and its own failed investigation.”

To protect the privacy of the victims, identifiers like the names and majors of the victims should be eliminated from the withheld documents, Miller said in an interview.

“What should not be eliminated is what the creep did to those students,” Miller said.

UK and the Fayette District judge both said that eliminating identifiers would not be enough to protect victim privacy.

Miller, using much of the same language as those involved in the windfall of sexual harassment allegations that have come out of Hollywood and the media, said that this UK professor was using his position of authority to commit sexual misconduct.

“What the Kernel is doing is not injuring, in any way, the students who made the complaints,” Miller said. “What the Kernel is doing is outing the bad guy.”

Miller said he was not sure when the court’s decision would be made.

Other universities in the state are also suing their student newspapers over similar open records disputes involving university-led sexual misconduct allegations.

Western Kentucky University filed suit against its campus newspaper, the College Heights Herald, after WKU refused to provide documents pertaining to its sexual misconduct investigations. The Kernel, which also asked for records from WKU, is also named in that suit. 

WKU’s Student Government Association passed a resolution in November stating that the WKU SGA will “support and stand with” the College Heights Herald.

WKU and Kentucky State University also have ongoing lawsuits with the Kernel over similar open records disputes.