NEWS RELEASE: Student privacy cannot obstruct public access to records of campus sexual-assault cases, SPLC tells N.C. court





FOR IMMEDIATE RELEASE SEPT. 29, 2017

Contact: Hadar Harris, Executive Director (202) 785-5450 / hharris@splc.org

College journalists are entitled to public records that reflect how their universities handle complaints of sexual assault through the disciplinary system, the Student Press Law Center argues in a legal brief supporting a public-records lawsuit against the University of North Carolina-Chapel Hill.

In the friend-of-the-court brief, which the North Carolina Court of Appeals accepted for filing Friday, the SPLC argues that UNC is misapplying federal student privacy law to obstruct access to records that would enable the public to see the outcomes of disciplinary cases in which students are found liable for conduct equating, in the off-campus legal system, to serious sex crimes.

"It is difficult to think of an issue where the public more urgently needs access to records to independently assess whether powerful government agencies (in this case, a flagship state university) are doing their jobs," the SPLC states in the brief. "Without these records, the public will be left with a 'trust-me' honor system, relying on the assurances of colleges that have every motive to misrepresent this urgent safety risk."

The case originated with an October 2016 open-records request by the independent student newspaper at UNC, the Daily Tar Heel, which has intensely covered the university's response to sexual assault and has regularly feuded with the university over its aggressive use of FERPA privacy to withhold public records. The newspaper is seeking records of cases in which students or faculty were found to have committed sexual assault or sexual harassment, and in those cases, what penalties were imposed. But the university turned down the request on the grounds of student confidentiality, and the student newspaper, joined by a coalition of professional media organizations, filed suit.

In May 2017, a trial-court judge ruled that UNC has discretion to turn down the open-records request, relying on a federal regulation that says universities "may" disclose the outcomes of cases where students are found responsible for sex crimes.

But in the brief, the SPLC points out that Congress expressly carved out as unprotected the exact records that the Daily Tar Heel is seeking, those reflecting how offenders are disciplined through the student conduct process for behavior that, in the off-campus world, could be punishable as a felony.

Noting that federal regulations also say that universities "may" disclose records if served with a subpoena or a court order, the SPLC points out that "may" does not really mean that colleges have federal permission to ignore court orders: "Obviously, this provision does not mean 'you may choose not to disclose' so that an educational institution could claim to have federal dispensation to treat a court order as optional. What 'may disclose' means in the context of FERPA is simply that disclosure will not result in any federal penalty."

Responding to the university's contention that releasing the records could result in federal sanctions for violating FERPA, the SPLC notes in the brief that no institution has ever been penalized over the 43-year history of FERPA, which is intended to penalize "a total institutional breakdown in recordkeeping, not a one-time decision made in good-faith reliance on controlling state disclosure laws."

"f it violated FERPA for educational institutions to release public records reflecting the outcome of disciplinary adjudications in sexual assault cases, we would know it by now, because records of this kind have been released and published many times without incident," the brief states, pointing to extensive investigative reporting published in Maryland and Ohio in reliance on the same type of records that UNC contends are confidential.

FERPA cannot be interpreted to compel universities to withhold public records under threat of the ruinous withdrawal of all federal education funding, the brief argues, because such "economic dragooning" was recognized as unconstitutional in the Supreme Court's 2012 Sebelius ruling striking down portions of the Affordable Care Act.

The brief was filed with the assistance of volunteer media lawyer Elliot Engstrom of Engstrom Law, PLLC, in Greensboro.

The Student Press Law Center is a nonprofit, Washington, D.C.-based advocate for the rights of student journalists to gather and publish information to inform their communities. Through its 215-member nationwide network of attorney volunteers, the SPLC regularly appears in state and federal courts in cases that implicate the ability of journalists to gather information about colleges and schools.


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