Editor’s note: You can find more recent SPLC coverage of this lawsuit here.
NORTH CAROLINA — North Carolina’s major newspapers are joining forces with a student newspaper in demanding the state’s flagship public university release records pertaining to former students who’ve faced discipline for sexual assault.
The student-run Daily Tar Heel is lead plaintiff against the University of North Carolina in a complaint filed Monday by Stevens Martin Vaughn & Tadych, a prominent local law firm. The other three plaintiffs are the publishers of the Charlotte Observer and Durham Herald newspapers and Capitol Broadcasting, the owner of three local news television stations.
A university spokesman has told them the institution is permitted, but not compelled, to release the information under the Family Educational Rights and Privacy Act. Now, the university is being taken to court, and the provision the spokesman initially referred to is cited in the legal complaint as precisely why UNC is compelled to comply with the record request.
“Obviously, we feel like the law is on our side,” said Hugh Stevens, the attorney who filed the complaint. “There’s no point in filing the suit if you don’t think you’re going to win.”
UNC administrators, according to Stevens and the written complaint, have provided little in the way of bona fide legal arguments as to why disciplinary records in sexual assault cases are not subject to public records requests. The issue has long been contentious, with the papers and their legal counsel submitting multiple record requests and meeting with administrators before deciding to sue.
“When we met with them, most of their arguments were about policy,” Stevens said. “About how this would inevitably lead to invading the privacy of victims or accusers. They didn’t really make any argument as to the legal analysis because frankly I don’t know what they would have said.”
The complaint is long on legal analysis, citing North Carolina law which states government records are, by default, the property of the public. Any confidential information “comingled” with public records must be separated by the agency.
It goes on to quote Joel Curran, the vice chancellor for communications, from his written response to the Tar Heel’s records request. In it, he acknowledges that “FERPA permits, but doesn’t compel” such disclosures.
The university is holding fast to its argument that they’re protecting the identities of sexual assault victims. It’s the same argument upheld by the University of Kentucky in its litigation against its own student newspaper, the Kentucky Kernel.
“Releasing names of those found responsible in sexual assault or misconduct cases will inevitably lead to disclosures about the identity of victims who put their trust in the university’s process,” Curran said in a statement provided to the Charlotte Observer.
The complaint begs to differ.
“Because FERPA permits the disclosure of the information described in 20 U.S.C.A. § 1232g, records containing that information are subject to the Public Records Law, and UNC has no legal justification or excuse for having failed to provide copies of such records as promptly as possible in compliance with the law,” the complaint reads.
FERPA requires colleges to maintain the confidentiality of most “education records,” but Congress amended the law in the 1990s to clarify that the outcomes of disciplinary cases involving crimes of violence or sex crimes – the records covered by the Daily Tar Heel request – are not confidential.
Another issue, Stevens said, is essentially the university displaying a lack of trust in media organizations’ ability to handle sensitive information without violating accusers’ privacy.
‘We walked about that,” Stevens said. “And we said, ‘We’re well aware of the implications of this, but that’s not your problem.’ ”
Indeed, the complaint highlights one emphasis of their work, saying, “Since 2014 UNC has promulgated, and purports to enforce, an extensive and comprehensive “Policy on Prohibited Discrimination, Harassment and Related Misconduct” that includes prohibitions on, and potential punishments for, sexual and gender-based harassment and sexual violence, including sexual assault.”
The paper has curated their coverage on the issue.
This isn’t the first time the Tar Heel has gone to the mat for university transparency. In 2014, they won a two-year legal battle with the unsealing of 911 tapes and search warrants in a homicide investigation on campus. They’ve also filed suits covering academic fraud and student disciplinary hearings.
SPLC staff writer Lev Facher can be reached by email or (202) 974-6318
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