N.C. state judge issues decision in UNC FERPA case


Records about NCAA violations concerning impermissible benefits aren't protected by FERPA





UPDATED: This story has been updated with a statement from UNC Chancellor Holden Thorp. 

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NORTH CAROLINA – The Family Educational Rights and Privacy Act does not protect records relating to the violation of NCAA rules regarding impermissible benefits received by student-athletes, a North Carolina judge has decided.

In a memo issued Thursday, Superior Court Judge Howard Manning wrote that the University of North Carolina must release the “statements of facts” and reinstatement requests that the school submitted to the NCAA regarding athletes accused of receiving impermissible benefits that resulted in the NCAA declaring the student athlete ineligible for play.

“Just as in the case of parking tickets, this kind of behavior has nothing to do with education,” Manning wrote. “This kind of behavior (impermissible benefits – non-academic) does not relate to the classroom … or anything else relating to a student’s educational progress.”

Manning’s decision is in response to a lawsuit filed in 2010 by DTH Media Corp, which publishes The Daily Tar Heel, UNC’s student newspaper. The DTH and seven other media organizations sued after the university cited FERPA to withhold access to records relating to the school’s NCAA investigation into the football team.

The NCAA inquiry, which began in mid-2010, has thus far resulted in the head coach’s firing, a one-year bowl ban, scholarship reductions, and an ongoing investigation by the North Carolina State Bureau of Investigation looking into academic fraud that arose over the course of the school’s investigation.

In April 2011, Manning ruled on many of the plaintiff’s requests for documents concerning student tutors, parking tickets and phone records.

Thursday’s decision from Manning clears up the remaining questions raised in the lawsuit, specifically concerning records relating to outside law firms hired by the university, statements of facts and reinstatement requests submitted to the NCAA and the school’s response to the NCAA outlining all issues under investigation.

All of the records related to UNC’s hiring of an outside law firm are protected by attorney-client privilege except for general attorneys’ fee statements, Manning wrote.

In addition to the statements of facts and reinstatement requests that must be released under Manning’s decision, the university must release unredacted portions of its NCAA response that concern impermissible benefits received by student-athletes. Records related to student-athlete academic issues and to employees covered by the state’s personnel laws may remain redacted.

In a second memo issued Thursday, Manning also released a decision concerning former coach Butch Davis’ cell phone records. In July, Davis filed a motion to quash a subpoena for his personal cell phone records. The media group requested Davis’ personal phone records because he used it to conduct university business.

Manning wrote that it was “appropriate” to protect Davis’ phone records but added that allowing attorneys from both sides to jointly separate the university-related calls “is reasonable and certainly cost-effective considering the gallons of ‘white-out’ used by UNC and its lawyers so far in this matter.”

The case is almost certain to go on to appeal. After Manning’s first ruling, UNC announced its intention to appeal once all of the issues in the lawsuit had been resolved. During the hearing last month, Manning noted that he expected appeals from both sides.

Karen Moon, a spokeswoman for the university, said the school planned to review Thursday’s decision more carefully before determining how to proceed.

“We appreciate Judge Manning’s attention to this complex case, and we are reviewing his ruling,” UNC Chancellor Holden Thorp said in a statement. “We are pleased that his decision affirms the privacy of student-athlete information related to academics and protects the important relationship between the university and its counsel.”

DTH Editor-in-Chief Andy Thomason said he was happy with the decision even though all of the media group’s requests were not granted.

“It just affirms our conviction all along that UNC is using FERPA inappropriately,” Thomason said. “We’re very pleased and we think it’s a good sign. We hope to get those records.”

By Sara Gregory, SPLC staff writer. 


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