Bill Straub: In legal dispute with school newspaper, UK’s Capilouto doesn’t have a leg to stand on

WASHINGTON – This is a tale about stonewalling at an institution that, sadly, remains more revered for its basketball prowess than its academic excellence, a place where a commitment to openness and lively debate should be welcomed as opposed to being treated like an annoyance.

It involves the University of Kentucky and its independent student newspaper, the Kentucky Kernel, and the ongoing narrative conclusively establishes that young men and women often display more wisdom and fortitude than their elders.

Before we get started in earnest it should be noted for the record that I worked at the Kernel for four years during my rather checkered academic experience at the University of Kentucky in the 1970s, a period most everyone involved longs to forget, if not forgive. And I recently made a contribution to the paper’s defense fund, initiated because of a misbegotten lawsuit instigated against it by the university’s president Eli Capilouto, who, hopefully is not turning out to be more trouble than he’s worth.

UK President Eli Capilouto

That said, the implication from all this is that UK, an institution that should be dedicated to transparency, exposing both the good and the bad to sunlight, a school that should be fighting fiercely to assure all facts are revealed and clearly presented, is trying to hide something. It is contemptable and Capilouto, ultimately, owns responsibility.

That, by itself, is bad enough. But the university president of five years has foisted upon the Kernel an unnecessary and capricious lawsuit that the paper must pay lawyers to defend. Furthermore, he accused the student journalists, those whose academic pursuits he’s supposed to be helping to advance, of being “salacious’’ in their reportage.

Nice to know this guy’s on the side of his charges.

The details, according to the Kernel, resulting from its excellent reporting, go something like this:

Two complaints of sexual harassment and sexual assault were filed against an associate professor of entomology, James Harwood, in response to incidents involving five students, both men and women, spanning three years between 2012 and 2015.

The university conducted an investigation. In a 122-page report ultimately obtained through good shoe-leather journalism by the Kernel, it was determined that “There is enough evidence for a reasonable person to believe the alleged behavior occurred and this matter should be presented to the Sexual Misconduct Hearing Board.”

Harwood resigned before such a hearing could be conducted. The parties reached an agreement on Feb. 26 requiring the university to provide Harwood with pay until Aug. 31– he earned $109,900 annually — and receive health benefits from the university through Dec. 31.

A sweet deal under the circumstances.

At least one victim wasn’t satisfied with the way the university handled the situation. A representative of that student contacted the Kernel to make it aware, asserting that UK, according to the paper, “is protecting the professor at the expense of his victims, other students and the public.’’

The Kernel thereupon filed a standard Open Records request, seeking the investigative report. Such reports compiled by a public agency, like the University of Kentucky, are generally available for public perusal after a probe is concluded.

But the university rejected the request, citing student confidentiality. The Kernel followed standard procedure, appealing UK’s decision to the Office of the Attorney General as required under law. When the attorney general asked to review the report in order to make an informed decision, Capilouto and the university told the commonwealth’s chief law enforcement official to go suck eggs.

Capilouto later dismissed the AG’s office with a wave of his hand, characterizing it as “a bunch of lawyers in Frankfort.’’

So it should come as no surprise the attorney general told the university to hand over the document as requested. Still it resisted, insisting that under some convoluted interpretation of the Family Educational Right and Privacy Act (FERPA), a federal law intended to protect student information, that it had the right to, as some fellow back in the ‘70s once said, “stonewall — plead the Fifth Amendment, cover-up, or anything else if that will save it, save the plan.”

As a result, the university has filed suit to keep the report out of the Kernel’s hands. Fortunately, the paper obtained a copy from a source, and it’s a lulu, certainly raising questions about the school’s kid gloves approach in its dealings with Harwood, who can now just go off and peddle his papers elsewhere.

What Capilouto and the university are saying is that when the school investigates a sexual harassment complaint they carry the authority to serve as J. Edgar Hoover, Jack McCoy from Law and Order and the jury from the Lindbergh baby kidnapping trial all rolled into one with no oversight from any other official body, or even an unofficial body like the Kernel.

Obviously such a scheme can easily descend into a star chamber, a secret hearing where officials make up the rules as they go along, the outcome is predetermined and no one is ever the wiser. That certainly is an odd way to achieve anything approaching justice.

For a man smart enough to lead a major university, Capilouto certainly displays a curious capacity for uttering nonsense. During a University of Kentucky board of trustees meeting, he told members, “If it is determined that media outlets have ready access to private, protected information, it means that everyone has access to private, protected information.’’

The problem here, of course, is that the report of the investigation conducted by the university is not “private, protected information.’’ The probe was conducted by a very public university by an employee of that very same public university regarding the dalliance of another employee of the public university and handed over at some point to the president of said public university. If the University of Kentucky were a private colleg operating under the auspices of a church or a similar entity, Capilouto might have an argument. He doesn’t.

But he’s correct in saying if the media have access so does everyone else. That’s the price you pay for living in a free society, something a university allegedly is supposed to promote. This is about steps taken by a public university, which means the actions are being taken in the name of the citizens of the commonwealth and they certainly have a right to know what goes on at the state’s primary institution of higher learning or home of NCAA championships as the case may be.

Basically, Eli Capilouto’s message to the general public he is sworn to serve as president of the commonwealth’s flagship university is “Trust me.’’ We’ve been down this road many times, folks, and it almost always culminates in an undesirable destination. Trust, maybe. Verify as President Reagan once insisted? Always. And it’s that oversight Capilouto is seeking to block.

But there may be an even bigger question here. If the report obtained by the Kernel is to be believed, this Harwood is a piece of work. In 2013, during a trip to a conference, the professor reportedly had drinks and dinner with two students. During the course of the evening he repeatedly grabbed the buttocks, breast and crotch of an individual known as Complainant 1.

Another time, two other students testified that they and one other student were inappropriately touched by Harwood in 2015 on the night in which the first victim went out with a group from the department to celebrate defending her dissertation.

A question: Has any of this information been turned over to law enforcement authorities for possible prosecution? If Harwood stood accused of sexual assault and, as the report concluded, sufficient evidence exists to conclude that the incidents occurred, shouldn’t someone at least ask Fayette Commonwealth Attorney Ray Larson (a good guy who is retiring, by the way, congratulations, Ray) to determine if evidence exists to file charges?

Now it very well could be Harwood’s repulsive actions as outlined in the report don’t rise to a level requiring criminal charges, although the statues prohibiting molestation certainly remain on the books. There could be legal definitions involved and the statute of limitations could come into play.

But that’s an issue for prosecutors, the professionals, not the president of a university looking to sweep a distasteful matter under the rug lest it further soil his school’s image. It wasn’t that long ago a former assistant football coach at Penn State University named Jerry Sandusky was spotted in a locker room shower engaged in a sexual act with a young man well below the age of consent. That issue was reported to the powers that be who did nothing other than prohibit Sandusky from bringing underage children to campus.

Once the Penn State incident was publicly revealed it became a cause celebre. Two officials who were aware of the matter but failed to report it to law enforcement ultimately were indicted for involvement in a cover-up.

Now Capilouto, under fire, is looking to use the brouhaha to reform the manner in which the university protects students and employees from sexual harassment, a worthwhile goal. So something good may come from this yet.

But here’s another idea. If Capilouto won’t drop the suit or apologize for some of the nasty little things he said about the Kernel and its probe, why doesn’t he pull out the checkbook and use a portion of his $790,000 annual salary, maybe just $1,000, and make a contribution to the paper’s defense fund?

Just a thought.

Washington correspondent Bill Straub served 11 years as the Frankfort Bureau chief for The Kentucky Post. He also is the former White House/political correspondent for Scripps Howard News Service. A member of the Kentucky Journalism Hall of Fame, he currently resides in Silver Spring, Maryland, and writes frequently about the federal government and politics. Email him at williamgstraub@gmail.com.