UPDATE: The North Carolina Court of Appeals has ruled University of North Carolina must hand over student, faculty, and staff rape, sexual assault, and sexual misconduct records requested by the university’s student newspaper, The Daily Tar Heel.
The April 17 decision reverses last year’s May 2017 ruling by Superior Court Judge Allen Baddour that sided with the university. The Tar Heel appealed in September 2017.
“We’re happy to see the result of our appeal as we believe the information we fought for will help inform our community on campus safety and how the Title IX process works,” Tar Heel Editor-in-Chief Tyler Fleming said in an email statement. “We understand the importance of what we’re doing and hope to produce content that shapes conversations surrounding sexual assault on campus.”
The Student Press Law Center filed a friend-of-the-court brief to the Court of Appeals in September 2017 arguing that UNC was inappropriately using federal privacy laws to restrict access to public records. The amicus brief was filed on SPLC’s behalf by Greensboro, N.C.-based media lawyer Elliot Engstrom, a volunteer with SPLC’s Attorney Referral Network.
Since the three judges in the appeal—John Tyson, Wanda Bryan, and Rick Elmore—voted unanimously in their decision, the university’s last option to restrict the requested records from release is filing a petition to the North Carolina Supreme Court to counter the appellate ruling. If they do, and the petition is denied, UNC must turn the documents over to the Tar Heel.
While the court ruling says federal law does not protect the records the Tar Heel requested, the exact dates of the offenses in the documents will be redacted. According to the Family Educational Rights and Privacy Act, dates are not one of the categories of information that is allowed to be released. In addition, the names of complainants in the records will not be released without their permission.
UNC spokesman Joel Curran responded to the ruling in a statement posted to the university’s website.
“We are disappointed with the N.C. Court of Appeals decision and are examining all legal options as we review the ruling…Our position is based on the principle that we must protect the identities of survivors and other parties who put their trust in the University’s Title IX process and their rights under federal privacy law.”
Tar Heel attorney Hugh Stevens wasn’t surprised with Curran’s statement.
It’s “the usual crybaby response from them,” Stevens said. “We’re delighted by the result.”
The Daily Tar Heel has encountered a legal setback in its fight to obtain sexual misconduct records from the University of North Carolina–Chapel Hill in a case being watched nationally for its application of privacy laws.
The student newspaper filed an open records request Sept. 30, 2016, to obtain records detailing any incidents where students or faculty were found responsible for allegations of rape, sexual assault or sexual harassment. After the university refused to turn over documents, citing student and employee privacy, several local media outlets joined the Tar Heel in filing a lawsuit against UNC.
In the May 3 decision, Superior Court Judge Allen Baddour found that, while UNC does have records responsive to the request and that those records do qualify under state law as public documents, the university can withhold them on privacy grounds.
Of particular note, Baddour found that the federal Family Educational Rights and Privacy Act (FERPA) gives colleges discretion to release or withhold records of student criminal misconduct, and because of the Supremacy Clause to the Constitution, that federal discretion overrides state public-records law.
This decision strongly reflects the arguments laid out in UNC’s April 4 brief. There, Senior Deputy Attorney General Stephanie Brennan made the same argument that the college has a federally required duty to discretionarily assess each release of records, and that federal discretion supersedes North Carolina’s open records law.
Brennan dedicated a large portion of the university’s 27-page brief to describing the university’s Title IX and Clery Act procedures and reasons for denying the records request – including the privacy of the victims and the risk of discouraging later victims from coming forward. The court declined to address these assertions, with Judge Baddour writing:
“The reasons and justification for the University’s exercise of discretion are not considered — and need not be considered — by the Court in its determination of the legal issues at hand. In making these findings of fact and conclusions of law and arriving at this decision and Order, therefore, the Court has not considered the policy reasons for UNC’s exercise of discretion, UNC’s desire to protect and nurture its students or any other potentialities of disclosure.”
FERPA is the go-to defense for withholding records relating to campus wrongdoing that involves students. The law was intended to prevent the improper handling or purposeful dissemination of students’ private information, but only concerns itself with systemic university practices. No institution has faced loss of funding at any point in the law’s 43-year history, because none has been found to have a policy of non-confidentiality.
While cases involving FERPA and access to public records are nothing new, the invocation of the Supremacy Clause is a novel argument.
The court’s decision details the two conditions in which federal law wholly preempts state law. “Field preemption” exists when federal law directly addresses a specific subject area, and “conflict preemption” exists when state and federal law cannot both be satisfied simultaneously.
Baddour ruled that both types of preemption apply. Congress has occupied the “field” of student privacy by comprehensively legislating in a way that overrides state law, he wrote. And FERPA creates a conflict with state open-records law, he wrote, because state law requires releasing public records in every instance, while FERPA makes the release permissive rather than mandatory.
This is a novel interpretation of the FERPA statute, which states “nothing in this statute shall be construed to prohibit an institution of postsecondary education from disclosing” final dispensation records in sexual misconduct cases if the student is found at fault. Nothing in the statute refers to exercising discretion to assess the merits of a particular release.
The only way for a conflict to exist between the two laws is if FERPA affirmatively requires universities to exercise discretion in making disclosures — something that is hard to reconcile with the Department of Education’s longstanding position that FERPA has nothing to do with disclosure. It’s also possible to read FERPA as the federal government withdrawing itself from involvement in that subcategory of records. In that case, there is no conflict and state law prevails.
Baddour goes on to address the disclosure of faculty records. The court recognizes that North Carolina’s Human Resources Act protects the confidentiality of state employee records except those documenting the dismissal, suspension, or demotion of an employee. Everything else, the act states, is confidential.
The Tar Heel’s request encompasses any student or faculty member found in violation of university codes. The court does order UNC to disclose the “‘date and type of each dismissal, suspension or demotion for disciplinary reasons’ for any employee found responsible under University policy for rape, sexual assault or any related or lesser included sexual misconduct…”
However, this finding by the court effectively means that any faculty found at fault in a sexual assault investigation enjoy confidentiality as long as they weren’t punished in a manner that altered their employment status.
This, again, was an affirmation of the argument presented by UNC in their brief.
Baddour’s name may sound familiar, because another Baddour – the judge’s uncle – was the defendant in a lawsuit against UNC brought by the Daily Tar Heel and other media organizations over the university’s misapplication of FERPA to public records, during the time Richard Baddour was UNC’s athletic director. In that previous case, The News & Observer Publishing Co. v. Baddour, news organizations won access to public records – including coaches’ cellphone bills and athletes’ parking tickets – that the UNC athletic department tried to categorize as confidential education records.
Richard Baddour stepped down in 2012 amid an athletics academic scandal and the school named the Carolina Leadership Academy in his honor.
Hugh Stevens, the attorney representing the Daily Tar Heel and assembled local media, said the plaintiffs plan to appeal.