The Northern Kentucky Tribune has filed a “motion to intervene” in the Jane Doe vs. Northern Kentucky University lawsuit, objecting to the university’s motion to “gag” and “seal” records in the case.
The Tribune’s attorney, Kathie E. Grisham, filed the motion with the U.S. District Court for the Eastern District on Monday.
Jane Doe, an NKU student, filed suit against the university, its president Geoffrey S. Mearns, Kathleen Roberts, Ann James and now-former Police Chief Les Kachurek for their handling of her alleged rape in a campus dorm in 2013.
The case is being heard by Judge William O. Bertlesman.
Grisham argues for the Tribune that issues of the highest “public interest and concern” are involved in whether “students on college campuses are safe, whether sexual assaults reported to college authorities are adequately investigated and punished, especially where college athletes are involved.”
The motion argues that the jury pool can hardly be prejudiced by a few stories as compared to years of a “powerful government agency and major local employer” commanding a large marketing department whose stated mission is “the placement of favorable information about the University” in the news media.
Citing precedents involving decisions against “unconstitutional prior restraint” on the news media and supporting the public’s right of access to records of judicial proceedings, the motion also suggests that these cases often result in settlements, the “outcome of which may be payment of substantial taxpayer monies to Doe and her counsel” which the public also has a right to know.
The motion says: “How the University conducts itself during the course of litigation itself is a subject of enormous public interest and concern, because the administrators of Northern Kentucky University are well-paid, powerful government officials. If the University is abusive toward Ms. Doe in conducting this litigation, the citizens of Kentucky are entitled to know that and to decide whether that is behavior to be countenanced from their public servants. . .
“Neither the interests of an informed public nor the interests of a fair trial are advanced by creating a climate in which suspicious citizens are left to speculate about how the case is proceeding behind dark curtains.”
The motion expresses particular concern about how the university has argued for secrecy on grounds that FERPA requires it. (FERPA is the Family Educational Rights and Privacy Act.)
The Tribune’s motion argues that FERPA is a much-abused federal privacy statute, “frequently misapplied by schools and colleges as a tool of concealment” and documents multiple instances in which “colleges, faced with requests for public records about their athletic departments, mischaracterized the documents as FERPA-protected to evade disclosure.”
“Defendants know – or certainly should know – that there is no such thing as ‘FERPA information’ only a FERPA ‘education record,’ and that the type of filings and statements made in the course of civil litigation will almost never as a practical matter be subject to the confidentiality strictures of FERPA.”
The motion goes on to point out that the U.S. Department of Education, the sole arbiter of what constitutes a FERPA violation, has said on multiple occasions that FERPA is a narrow statute applying only to “education records” themselves and not (for example) the words coming out of a witness’ mouth during a deposition.
The Tribune objects to the university’s “opportunistic misuse of FERPA to conceal information of public importance in service of illegitimate image concerns.”
The Cincinnati Enquirer has also filed a motion objecting to the gag order and sealing of records.
Judge Bertelsman has ordered a hearing for October 18 at 1 p.m. to hear a “non-exclusive list of issues” that include (1) must records regarding defendants handling of complaints similar in nature to those alleged in this action be produced; (2) If so, should those records be sealed or redacted to protect the identities of the persons involved?”
See links to the NKyTribune’s previous stories:
NKU student files suit against NKU
NKU’s attorneys reply to Jane Doe suit
NKU files motion for gag order
NKU student alleges assault by four members of basketball team
All the cover-ups at NKU are falling apart. The part about FERPA being “frequently misapplied by schools and colleges as a tool of concealment” is spot on by the Tribune motion. NKU is the run by a corrupt administration and people who could care less about victims of sexual assault. They just want to hide behind FERPA, cover their own incompetence and corruption. Look at the trail of criminal activity by their basketball players, they don’t even suspend the three players who AD Ken Bothof had to admit were involved in a sexual incident, they all played the next game like nothing happened. And don’t blame the former coaching staff, Bothof took the decision to suspend them into his own hands and then fired Head Coach David Bezold a few days later. Kudos to the Tribune for sticking with this story and filing the motion so NKU’s kingdom of corruption can’t hide behind FERPA. Now just get Jeff Waple and Peter Gitau to talk, they were the Dean of Students and Vice President of Student Affairs when both assaults happened at NKU. You will have a big story then.
You are right about Dean Waple, I know him from my frat days and he knows anything that went on. The girl who the basketball players hooked up with is going to come forward is the latest, she’s looking for a lawyer to help her like they are doing with Jane Doe. My frat brothers told me the three basketball players who did the deed are jerks, been walking free and talking it up, now we’ll see how loud they talk when she gets a lawyer.
Count me in as disappointed by NKU’s lack of transparency in these two incidents of sexual misconduct. I defended Kenny Bothoff over the three basketball players two years ago when the rumor started about their involvement in a inappropriate sexual incident in the dorms. I was wrong. Kenny Bothoff’s own deposition swayed me over to the faction of NKU fans who want to see him removed as athletic director. Things are just getting worse as more stories are surfacing about more incidents on campus. The Jane Doe suit is doing considerable damage to NKU’s reputation. A house cleaning is needed to heal what ails NKU.