TRANSPARENCY TUESDAY: N.C. court ruling offers new leverage to obtain private colleges’ police records

Student journalists at private colleges may have a stronger argument for access to previously off-limits police reports from campus law enforcement, as a result of a recent North Carolina Supreme Court ruling.

The case, State v. Yencer, involves a Davidson College student’s challenge to her 2006 drunk-driving arrest on the Charlotte-area campus. The student’s attorney argued that any arrest by Davidson campus police was invalid, because Davidson is a church-affiliated college, and a state cannot delegate its police powers to a religious institution.

A lower court threw out the student’s arrest, but in a unanimous Nov. 10 ruling, the state Supreme Court rejected the student’s argument and decided the arrest was valid. The court reasoned that, while Davidson is Presbyterian-affiliated, its primary purpose is secular, and giving campus police the authority to make arrests does not advance a religious agenda or excessively entangle the state in church affairs.

Significantly, the court also elaborated on the workings of North Carolina’s Campus Police Act, which empowers private colleges to create police departments with sworn law enforcement officers who can make arrests:

The statute grants only limited supervisory powers to Davidson College, while ultimate control of the police power—which the individual officers alone exercise—remains in the hands of the State.

To repeat, the court clearly identified police on private college campuses as state actors operating under the “ultimate control” of the state.

In light of this ruling, the continued insistence by private colleges that their police need not operate with the same level of transparency as otherwise-identical police departments at public colleges is increasingly untenable.

During the spring semester of 2010, North Carolina’s Elon University repeatedly told student journalist Nick Ochsner that he was not entitled to the facts and circumstances surrounding an arrest that he was covering for a campus television station.

Ochsner sued, and a North Carolina trial court ruled in the university’s favor — not on the underlying issue of whether private college police are required to obey open-records laws, but on the secondary issue of whether the university’s limited disclosure was adequate. The core question of whether North Carolina police agencies must obey the Public Records Law was not fully resolved. Ochsner’s lawyer plans to appeal the ruling.

The laws of many states authorize private colleges to create campus police agencies with state-conferred powers. When a state government delegates its powers to a private entity, that entity’s records normally become a matter of public record, at least to the extent of the delegated function. There is no good argument for why a private college carrying out a central state function — and there is no more central state function than the police power — should be able to conceal its activities behind the veneer of private incorporation, and there is an increasing body of legal precedent that argues in favor of openness.