Daily Tar Heel hits stumbling block in records lawsuit against UNC

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.

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