Public University Sexual Assault Disciplinary Records Can Be Disclosed

In a clash between advocates of liberal construction of the North Carolina Public Records Act (“NCPRA”), and those advocating privacy for individual student disciplinary records, the advocates for liberal construction, and hence the disclosure of previously private student disciplinary records, have prevailed. The case might not have much resonance beyond North Carolina, but it speaks to an issue that is important throughout the country: the limits of privacy rights a student has in his or her own Title IX disciplinary record.

The North Carolina case stemmed from a lawsuit brought by a number of media outlets that claimed that the University of North Carolina violated the NCPRA by refusing to release the disciplinary records of students who were found to have violated UNC- Chapel Hill’s Title IX Sexual Misconduct Policy (see DTH Media Corporation et al v. Folt, Wake County, No. 16 CVS 14300). The request to release the student disciplinary records was opposed by the State of North Carolina. The case dealt with an analysis of the pertinent provisions of the Federal Family Educational Rights and Privacy Act (“FERPA”) and the aforementioned NCPRA.

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The media organizations argued that the clear language of the two statutes mandated the release of the records. The media organizations pointed to FERPA’s deference to state law in considering the disclosure of such records, and the broad provisions of the NCPRA that required the disclosure of all public records unless protected from such disclosure by the provisions of other state or federal law.

The problem for the state in opposing the disclosure was that:

  1. FERPA did not prohibit the disclosure of the records
  2. North Carolina law did not specifically exempt student disciplinary records (at state-sponsored schools) from the NCPRA or elsewhere
  3. The language of NCPRA (based upon its broad language that permits access to otherwise non-specifically exempted public records) therefore mandated that the records be released.

Unable to make a compelling argument on statutory construction grounds, the state made policy-based arguments, such as the chilling effect disclosure of the records would have on alleged victims filing future Title IX complaints, and safety concerns for the alleged perpetrators of sexual assaults.

It wasn’t enough to carry the day. The court determined in favor of the media outlets, holding that the language of the NCPRA, read in conjunction with FERPA, did not justify or permit the withholding of the requested student disciplinary records. Finally, the court referred to the legislature the question of whether it is a good idea or not to exempt student disciplinary records from the provisions of NCPRA.

But this unexpected and unintended release of these assumed to be private student disciplinary records demonstrates once again the inherent flaws of the whole Title IX student adjudicatory process. As stated in prior posts on this blog, the Title IX student adjudicatory process is rife with problems. It has stripped many process rights out of its proceedings, including formal rules of evidence and the right to confront and cross-exam one’s accuser. It has foreclosed the active participation of attorneys.

It has, at virtually all institutions, adopted the lowest standard of proof. It has either dispensed with hearings completely or made them so non-adversarial so as to render them more theater than proceedings designed to actually find facts. It has permitted minimally trained people to investigate and adjudicate complex factual and legal matters. And, in most cases, it conducts its work in secret, unobserved by those who might critically examine its process, based upon the justification of privacy.

Privileges Lost

In North Carolina however, at least for now – in state-sponsored schools, students who are run through this process and suffer the consequences caused by the lack of adequate due process protections, now have one more problem. They have lost the heretofore promised privacy protections that were used, in part, to justify so much of this modern-day star chamber proceeding. And let’s not delude ourselves. When the names of these “found responsible” students are published, most of the public will not know, nor consider, the extremely limited and flawed process that made that determination.

Or that the process itself is a self-denominated “educational process” and not a court proceeding. They won’t know how limited the investigation was, how low the burden of proof was, or how restricted the student was in being able to vigorously defend himself or herself. Most will only consider that the identified person was found responsible for sexual misconduct.

This scarlet letter will attach to this person for the rest of their lives. That bell cannot be un-rung. It may cause the loss of jobs and careers, the destruction of reputations, the ending of relationships. It is a true injustice.

Hopefully, the North Carolina legislature will close the NCPRA loophole that permitted this to happen. That, of course, is of little solace to those who may have their names published. On a broader scale, however, it is hoped that this situation provides yet another incentive for those in a position to revamp and improve the whole Title IX student adjudication process to do so, and to do so forthwith.

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