N.C. Senate bill to challenge state Supreme Court ruling on release of student disciplinary records

A recent proposed piece of legislation introduced in the North Carolina General Assembly seeks to challenge a 2020 North Carolina Supreme Court ruling that established current guidelines for the release of student records at public institutions of higher education statewide. 

The Protect Campus Survivors Act was filed by Senators Michael Lee, Amy Galey and Brad Overcash on Feb. 27 and is currently in committee. It aims to reverse the precedent set by DTH Media Corporation v. Folt, which required public colleges and universities in North Carolina to release records of students who have been found responsible for sexual assault. 

Senators Lee, Galey and Overcash did not respond after The DTH’s requests for comment. 

Senators Lee and Overcash have been involved with numerous education bills during their time in the N.C. Senate, recently with Senate Bill 227 entitled “Eliminating ‘DEI’ in Public Education.” 

In September 2016, The Daily Tar Heel and other local media organizations requested public records from UNC concerning students who were found responsible for sexual assault. Their request was denied on the basis that the Family Educational Rights and Privacy Act gave UNC the discretion to withhold the information. 

FERPA was signed into law in 1974 and applies to any educational institution — public or private — that receives federal funding. 

“I describe FERPA as kind of a good law gone bad,” said Mike Hiestand, senior legal counsel for the Student Press Law Center. “The whole purpose behind FERPA is to recognize that there is a legitimate privacy right in student education records. The problem with FERPA has been that that term ‘student education records’ has just been wildly abused.”

Jay Wester-Lopshire, editor-in-chief of The DTH during the 2016-2017 school year, said that the public records request was prompted by a 2013 Title IX complaint filed against the University. The complaint alleged that UNC did not have appropriate procedures for students coming forward about sexual violence. 

After the records were withheld, the media corporations sued UNC for access on the grounds that the N.C. Public Records Act took precedence. The case went to the North Carolina Supreme Court, where it ruled that UNC was required to release the records of those convicted of sexual assault.

The courts emphasized that FERPA allows for the release of disciplinary records when students have been found responsible for sexual assault. 

“It really just boils down to, don't other students deserve to know who among them has been found to have committed these serious offenses and punished for it,” Hugh Stevens, the lawyer who represented The DTH in the case, said. 

Stevens said that throughout the process, UNC’s way of handling these serious crimes was put in the spotlight. He said that all of the proceedings happened internally and perpetrators were not subject to criminal consequences, with expulsion being the highest degree of punishment they would face. 

By handling cases in an administrative way, Stevens said that victims would not have to publicly testify against their offender in court and their names wouldn’t be known. Stevens said that if victims go to the police or the district attorney instead of school officials, criminal proceedings would take place and the records would be public. 

“If you plunge it all into secrecy, then it's like it never happened,” Stevens said. “No matter how egregious and serious the offense is, you just sweep it under the rug.” 

Stevens said that UNC exercising the authority to find students responsible or not for these crimes makes it important that the records are public information so as to have transparency in the process. 

The bill currently in the N.C. Senate would effectively overturn this precedent, making it so that public institutions would not have to publish information about students who are punished for sexual assault. It would reword sections of the higher education and public records chapters of the general statutes and exempt these records from being released. 

“All the North Carolina lawmakers want to do is put in a very specific exemption to say, anything conducted within a campus court system is off limits,” Hiestand said. 

Any personally identifiable information and anything related to an investigation of an alleged conduct violation would no longer be public information. The bill specifies the confidentiality of certain records, even if their release would be permitted according to FERPA and the Public Records Act. 

“Making these disciplinary actions exempt from disclosure is not going to fix anything,” Pate McMichael, the director of the North Carolina Open Government Coalition, said. “It's not going to fix Title IX, it's not going to fix the fact that sexual assault is out of hand on a lot of college campuses and being done with impunity.”

In an email statement to The DTH, UNC Media Relations wrote that the Equal Opportunity and Compliance Office can help employees and students notify University policy and other law enforcement as requested.

"[B]ecause the University is also required to collect and publish incident data, there are times a portion of certain reports made to EOC are shared with UNC Police to appear on the Daily Crime Log and in the Annual Security and Fire Safety Report,” the email said. “This reporting is required under the federal Clery Act depending on the type of behavior and where it occurred.”

The bill would also prohibit the releasing of records to people whom the public institution believes knows the identity of the student involved in the records. 

The legislation would apply to requests submitted on or after the date of enaction, affecting public institutions of higher education including UNC and its 15 constituent public institutions, community colleges and the Community Colleges System Office.

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