Kentucky, national press associations file amicus brief on behalf of Kernel in ongoing lawsuit with UK

Rick Childress

Several Kentucky and national press associations have filed an amicus brief on the side of the Kernel in the paper’s ongoing lawsuit with UK.

The Kentucky Press Association, Student Press Law Center and the Society of Professional Journalists are a few among the eight local and national press associations that have signed the brief.

“This is a very prestigious group of organizations, genuinely concerned about freedom of the press and transparency with taxpayer funded institutions,” Tom Miller, the Kernel’s attorney, said.

The brief is authored by Michael Abate, a lawyer who is representing WKU’s student paper in a similar suit against their university.

In short, the brief said that UK is not justified in withholding documents pertaining to a controversial sexual misconduct investigation involving a UK professor.

“[I]f the university is allowed to withhold them altogether that means the public will have no right to know what is being done in its name,” Abate said, “whether professors are being disciplined or not, whether professors are moving on to other universities where they can do the same thing, which is unfortunately and frequently the case.”

UK spokesman Jay Blanton stresses that UK withheld the documents in order to protect student privacy and the identities of victim-survivors. 

“UK wholeheartedly agrees that openness and transparency are important,” Blanton said. “They are bedrock values we share as a university. But that doesn’t mean that the right to privacy and safety of students and victim survivors should be sacrificed on the altar of the open records law.”

An amicus brief is a written argument filed by a party outside of a lawsuit in favor of one of the parties involved in the suit.

“It’s a common way that interested organizations who aren’t otherwise in a case can get their views in front of the judges who are deciding,” Abate said.

The amicus brief comes as the case between UK and the Kernel enters the Kentucky Court of Appeals. Fayette circuit court judges have twice ruled in favor of UK in the lower court hearings involving the attorney general’s office and the Kernel.

“This case is about accountability, not privacy,” the brief said.

The brief said the public’s right to know about what goes on at UK is at stake. UK has claimed that the documents could not be released because the documents in question were protected under the Federal Education Rights and Privacy Act, or FERPA.

According to the brief, UK claims that the releasing of these FERPA-protected documents would result in a loss of privacy for the victims and a loss of federal funding for the university. But the brief contends that no university that has released similar documents has lost federal funding.

Miller said that by keeping the documents private, UK is only trying to protect its own interests.

“The issue here is not now, nor has it ever been compliance with FERPA or in a genuine interest in protecting the students,” Miller said. “It is about protection of UK. The news organizations want the court to recognize both the absurdity of UK’s argument and the resulting harm to the public.”

Blanton and UK contend that despite the assertions of the news and free speech organizations, two judges have already sided with UK in lower court hearings. Blanton thought the Kernel gave this fact too little prominence in their most recent publication. 

“UK is widely viewed as a national leader in its pursuit of creating a community that is safe for everyone, particularly in the area of sexual assault,” Blanton said. 

Miller said that it is possible that the victims in the sexual assault investigation may file on the side of the university just as they did in circuit court.