Two University Of Kentucky Graduate Students Still Search For Justice After Filing Title IX Reports A court case involving the University of Kentucky and its independent student newspaper, The Kentucky Kernel, highlights how confidentiality can sometimes get in the way of justice.
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Title IX Protects Identities But Can Complicate Justice

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Title IX Protects Identities But Can Complicate Justice

Title IX Protects Identities But Can Complicate Justice

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RACHEL MARTIN, HOST:

When sexual assault is reported to law enforcement, a majority of cases never make it to trial. But student victims have another option. They can report it to their universities under Title IX, the federal law that prohibits gender discrimination on campus. Public schools are obligated to investigate these crimes, and these campus investigations come with an advantage for both the accused and the accuser's confidentiality. But there are plenty of disadvantages, as we'll hear from NPR's Ashley Westerman

ASHLEY WESTERMAN, BYLINE: A court case involving the University of Kentucky has highlighted how confidentiality can complicate justice. Full disclosure - I'm a graduate of that university. But for the purposes of this story, we're going to withhold names of the accusers and the accused because we're not talking about guilt or innocence here. We're talking about the system.

The two women at the center of this case were graduate students in the UK entomology department. They each say their adviser sexually assaulted them. Let's call them Jane Doe One and Two. They say the professor groped them and said sexually suggestive things to them, so they went to the university Title IX office. We obtained a report prepared by the office outlining their allegations. When I spoke with Jane Doe Two, she told me they never wanted to go through the courts because they couldn't afford to be named.

JANE DOE TWO: I just spent a good portion of my life in grad school trying to further my career, and if I'm labeled as someone who followed a sexual assault complaint against a professor that could very easily backfire against me. There's a lot of people in academia who think that there are women who make up stuff like this.

WESTERMAN: The school launched an investigation and found enough evidence to move to the next step, an official hearing. If it found him guilty, the professor could have been fired, and everything would go on his employment record. But he resigned before a hearing could take place, highlighting what Jane Doe Two calls a loophole in the Title IX system.

JANE DOE TWO: Not just at UK, but at every single university. If a professor resigns before there's a hearing, then he's allowed to move on to another university, potentially victimizing more students.

WESTERMAN: In a statement to NPR, the professor says there is no truth to the allegations and that he resigned to protect his family from the publicity and stress of a hearing.

This gets to the heart of why letting universities handle sexual assault investigations can be problematic. In a criminal case, you can't remain anonymous. Our Constitution guarantees the right to face our accusers. On campus, the focus is on protecting the accusers. Their names are kept confidential, and there's a lower burden of proof. The Jane Does we're frustrated that their case never went to a hearing. So they reached out to the University of Kentucky independent student newspaper, the Kentucky Kernel.

MARJORIE KIRK: In March, a person walked in asking for someone to talk to and I said I can talk, and they basically unloaded this huge story on me.

WESTERMAN: That's Marjorie Kirk a journalism major who had made a name for herself as an investigative reporter. The person who came to see her that day at the paper was a representative sent by the Jane Does, and their story was enough to get Kirk digging deeper.

KIRK: I felt an obligation to the safety of other people to try and report this, and that's why we started this battle for open records.

WESTERMAN: The newspaper filed two Freedom of Information Act requests to get all the documents related to the investigation. The university turned over some, but not all of them. So the paper appealed to the Kentucky attorney general who took their side. But the university still wouldn't give up the documents, citing a federal law called FERPA.

JAY BLANTON: Which specifically mandates the protection of privacy of a student's personally identifiable records.

WESTERMAN: Jay Blanton is a spokesman for the university.

BLANTON: And this institution, the University of Kentucky, has consistently held that student information, particularly in cases that might identify in a student in the case of a sexual assault, sexual misconduct, must be held confidential.

WESTERMAN: And because of a quirk in Kentucky law, the university ended up suing its own student newspaper to block the documents from being released. Marjorie Kirk who is now editor-in-chief says if confidentiality was a problem, the university could have simply redacted names and other identifying details. She says at stake is a lot more than allowing one professor to leave campus without a hearing.

KIRK: A decision would be for all the marbles. It would affect any decision that a judge anywhere was trying to come up with for similar documents. They would see this decision and likely follow the precedent.

WESTERMAN: Then, just two days after the university sued the newspaper to prevent release of the documents, representatives of the Jane Does showed up at Kirk's office and handed over the full investigation - over 100 pages. In it were interviews with witnesses and emails where one of the women confronted the professor about his behavior. It also had the professor's version of events. And so Kirk started writing about the specifics of the case, but also about the lack of an open system.

KIRK: And as we dug into the system a little more, we saw there was much more to this than one professor. And so the scope definitely grew into a system that universities were enabling.

WESTERMAN: While Marjorie Kirk was on a crusade, the Jane Does watched. They were happy with the first few articles. They maintained their anonymity. The professor didn't. But then, their personal story mushroomed into something they hadn't signed on for - dozens of articles in an open records fight.

In an effort to spotlight the broken university system, the Jane Does discovered another imperfect system. Journalists can play a big role in exposing wrongdoing, but media outlets ultimately have the say on how they pursue stories. They're not subject to the same rules as courts or universities, so it's not surprising the newspaper took the story and tried to expose as much as they could. In November, the Jane Does filed a brief supporting the university. Yes, that's right. They sided with the university. Here's Jane Doe Two.

JANE DOE TWO: There needs to be some sort of reporting system for professors accused of sexual misconduct. while still protecting the privacy of victims like me and Jane Doe One. And the records that Marjorie is calling for - those hundreds of pages of documents aren't necessary for that reporting system.

WESTERMAN: So here's what we're left with - a university struggling to protect students and hold employees accountable, a crusading journalist sued by her own school and two women still searching for a more perfect form of justice. The judge in the case says he plans to issue an opinion sometime in the next two weeks. Ashley Westerman, NPR News.

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