Orange County

Privacy or accountability? Judges to decide which prevails in campus sex-misconduct cases.

UNC-Chapel Hill’s campus newspaper and other media have asked the N.C. Court of Appeals to overturn a ruling that lets the university withhold the names of students disciplined in on-campus sexual-misconduct cases.

Lawyers for the Daily Tar Heel, The Herald-Sun, WRAL and the Charlotte Observer contend state Superior Court Judge R. Allen Baddour Jr. erred in May when he ruled that a federal student-privacy law trumps North Carolina’s Public Records Law and blocks the release of the information.

The ruling’s a mistake because the relevant federal law, 1974’s Family Educational Rights and Privacy Act, actually allows universities to release the names, violations and sanctions of students who’ve been found responsible for “any crime of violence” or “non-forcible sex offense,” lawyer Hugh Stevens said for the media organizations.

On the other hand, as none of the exemptions in the state Public Records Law covers that information, UNC-CH in theory should have to release it. Baddour’s task as a judge was to “confront and reconcile” two laws that “are not in conflict substantively,” Stevens said in the brief to the Court of Appeals on Sept. 15.

Instead, Baddour ruled the federal law, better known as FERPA, overrides the state one because Congress said universities have discretion over whether to release the information.

The state law has to give way because “it would substitute mandatory disclosure in every case for the application of reasoned discretion,” said Baddour Jr., the son of former UNC-CH athletic director Dick Baddour.

That doesn’t make sense because even if UNC-CH releases the information, it still “will be in complete compliance with both” laws, Stevens argued.

A Washington, D.C., advocacy group, the Student Press Law Center, filed a friend-of-the-court brief on Sept. 28 supporting the Daily Tar Heel and the other media organizations. It likewise rejected Baddour’s and UNC-CH’s contention that the federal privacy law overrides the state’s Public Records Law.

The federal statute on its face “says nothing about preempting state law,” and U.S. Department of Education regulators have signaled they don’t think it makes “policy as to what records are public under state laws or [is] displacing state laws,” the student-press center’s brief said.

“What ‘may disclose’ means in the context of FERPA is simply that disclosure will not result in any federal penalty,” it said, alluding to the threat that violations of the U.S. privacy act could cost universities their federal subsidies.

Should the federal law actually result in a subsidy cut, “it would be unconstitutional” under the legal doctrine the U.S. Supreme Court used in 2012 to strike down part of the Affordable Care Act, the Student Press Law Center brief said.

A response remains pending from UNC-CH’s appellate lawyers, who work in N.C. Attorney General Josh Stein’s office.

They’ve asked the Court of Appeals to give them until mid-November to write a counter. Their request cited “significant understaffing” as one reason for the delay, the comment alluding to a N.C. General Assembly-imposed budget cut that in early August triggered layoffs in Stein’s office.

Previous filings from the attorney general’s office indicated that it and UNC-CH agree the federal law overrides the state Public Record Law. They also argued that disclosing the information would deter victims and witnesses from participating in the campus disciplinary process, and “jeopardize the safety of alleged perpetrators.”

The case file Stevens gave to the Court of Appeals included an Oct. 28 letter to Daily Tar Heel officials from Joel Curran, UNC-CH vice chancellor for communications and public affairs, that said university administrators think the requested disclosures would have a “devastating” impact on misconduct victims and “the campus community” in general.

Curran noted that the federal privacy law “permits but doesn’t compel universities to” disclose the names, violations and punishments of perpetrators.

But because “we’re not aware of any institutions that have a policy of always disclosing identities and offenses” under the federal exemption, “we don’t believe Carolina students should be subject to different standards than their peers on other campuses nationwide,” he said.

Disclosures could also help people on campus identify victims, and may “compel individuals found responsible [of misconduct] to publicly air concerns in a manner that’s at odds with the university’s desire to preserve the confidentiality and reputational interests of everyone who is involved in a case,” Curran told DTH officials.

He also noted that campus disciplinary proceedings “are not courts of criminal law” and use a lower burden of proof than the “beyond a reasonable doubt” standard that prevails in criminal courts.

The Student Press Law Center’s friend-of-the-court brief, meanwhile, said the issue comes down to accountability.

“This is a case about the public’s ability to oversee how powerful government agencies do, or do not, exercise their authority to keep the public safe,” it said, adding the alternative to disclosure is a “trust-me” approach that relies “on the assurances of colleges that have every motive to misrepresent this urgent safety risk.”

Ray Gronberg: 919-419-6648, @rcgronberg

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