Judges should shield UNC-Chapel Hill from having to release the names of students disciplined in on-campus sexual-misconduct cases for fear of chilling reporting by victims and because federal law overrides North Carolina’s Public Records Law, lawyers for UNC say.
In a brief directed to the N.C. Court of Appeals, UNC-CH’s legal team admitted that federal student-records privacy laws give the university the discretion to release the names of students found responsible for “any crime of violence” or “non-forcible sex offense.”
But Chancellor Carol Folt’s administration has decided that disclosure “is not in the best interest of the university or its students,” and the wording of the federal privacy law means the N.C. General Assembly can’t say otherwise through the state Public Record Law, UNC’s lawyers told the appeals court.
The U.S. Congress assigned “discretion” on the point to universities, and the Public Records Law is thus irrelevant because it “interferes with federal privacy objectives for students,” said the lawyers from N.C. Attorney General Josh Stein’s office who are representing UNC-CH.
UNC is trying to fend off an attempt by a consortium of media organizations led by the campus newspaper, The Daily Tar Heel, to force disclosure of the names of students it has disciplined in sexual-misconduct cases. The consortium also includes The Herald-Sun, The Charlotte Observer and Capitol Broadcasting Co.
The media companies are appealing a 2017 ruling from Orange-Chatham Superior Court Judge Allen Baddour — the son of former UNC-CH athletic director Dick Baddour — that sided with the university.
Their lawyer, Hugh Stevens, argues that because federal law doesn’t bar the university from releasing names, there’s nothing stopping UNC from complying with the Public Records Law and releasing them.
The university’s contrary stance comes even though North Carolina-based federal judges have ruled that UNC is an “arm of the state” that relies on the General Assembly for all its authority.
That has worked to UNC’s benefit on several occasions, including last year when U.S. District Court Judge Loretta Biggs, a former state Court of Appeals judge, said the university is “subject to the control and veto power of the General Assembly.”
Biggs made that ruling on the way to dismissing a lawsuit from two former UNC athletes who sought compensation for being channeled into bogus “paper classes” that became the focus of a major scandal.
Then as now, UNC was relying on the attorney general’s staff for legal help, and that office is now arguing that the state university has decision-making authority that’s independent of the General Assembly.
Meanwhile, Stein’s aides also relayed to the N.C. Court of Appeals affidavits from a quartet of UNC administrators who argue disclosure would undermine the school’s efforts to deal with sexual misconduct.
The most senior of the four, Vice Chancellor for Workforce Strategy, Equity and Engagement Felicia Washington, joined student affairs officials and subordinates of hers in UNC’s Title IX office in saying disclosure raises a host of problems because accused and accusing students in misconduct cases usually know each other.
“In many cases, they have dated or been in a relationship,” and “many of the encounters at issue involve alcohol consumption by one or both parties,” Washington said.
Given prior social ties, not to mention the prevalence of social media, it would be relatively easy for friends, acquaintances and other people to track down the name of the accuser if they know the name of the student the university disciplined, Washington and her colleagues said.
Fewer students would be inclined to report misconduct if they saw a risk they might be identified, and more of those facing an accusation could be inclined to fight the charges against them, the UNC officials said.
One Title IX staffer, Report and Response Coordinator Ew Quimbaya-Winship, said officials also fear students who’ve been disciplined could face retaliation. Disclosure “would likely give rise to a witch hunt,” he said.
Another, Associate Director of Title IX Programs Katie Nolan said disclosure could also make it more difficult to question witnesses, particular those who are “members of small and tight-knit communities of students” like athletes, fraternity and sorority members, and others who “are generally reluctant to risk alienating their friends by participating in investigations.”
The officials argued the publication of aggregate disciplinary statistics and the availability of things like the option to complain to federal Title IX watchdogs offers the public a sufficient degree of accountability over the university’s handling of misconduct cases.
UNC faces an ongoing U.S. Department of Education investigation that’s looking into whether its handling of such sex-misconduct cases discriminates against women.