By: Correy Stephenson, BridgeTower Media Newswires May 7, 2020
In a collision between the federal Family Educational Rights and Privacy Act and the North Carolina Public Records Act, public universities lack the discretion to decide whether to disclose disciplinary records of students who have violated the school’s sexual assault policy, a divided North Carolina Supreme Court has ruled, ordering the release of the records under the state law.
The decision may be accessed here.
Pursuant to the Public Records Act, four news organizations—DTH Media Corporation, Capitol Broadcasting Company, Inc., The Charlotte Observer Publishing Company and The Durham Herald Company—requested copies of all public records made or received by The University of North Carolina at Chapel Hill in connection with a person having been found responsible for rape, sexual assault, or any related or lesser included sexual misconduct by various school bodies.
Through its officials, UNC denied the request. The news organizations later narrowed the scope of their request to the name, date, nature of each violation for which each person was found responsible and the sanction imposed, dating back to Jan. 1, 2007. Again relying upon FERPA, the university denied the request.
The news organizations then sued under the Public Records Act, seeking an order compelling officials to produce the records. A trial court denied their request for a declaratory judgment, siding with UNC to rule that FERPA preempted the Public Records Act. The Court of Appeals reversed, and UNC appealed.
Writing for the majority in a May 1 opinion, Justice Michael Morgan affirmed the appellate court’s decision that the records are subject to mandatory disclosure.
“We see no conflict between the federal statute and the state Public Records Act,” Morgan wrote. “This North Carolina law has been interpreted consistently by our state courts as intended for liberal construction affording ready access to public records, subject to limited exceptions. Accordingly, we conclude, as did the Court of Appeals, that defendants’ contended interpretation of the two statutes ‘conflicts with both the Public Records Act’s mandatory disclosure requirements and the plain meaning of FERPA’s § 1232g(b)(6)(B), which allows disclosure.’”
Statutes working together
The court began by recognizing that the state legislature has “clearly expressed” its intent through the Public Records Act to make public records readily accessible as “the property of the people.” Courts should liberally construe the law to ensure that governmental records are open and made available to the public, subject to “a few limited exceptions,” unless either the agency or the record is specifically exempted.
Although UNC argued that FERPA conferred upon the university the discretion not to disclose the records, Morgan found it “compelling” that the federal statute contains “no expression provision … that reposes the authority in UNC to exercise the discretion that it purports to have.”
As such, and since the categories of records sought by the news organizations are public records expressly subject to disclosure pursuant to FERPA, the court construed the federal statute and state statutes in light of another and found no conflict between them.
“This result reconciles and harmonizes the Public Records Act and [FERPA], while preserving the integrity of the well-established doctrines which guide proper statutory construction,” Morgan wrote. “It also reinforces that the Public Records Act may be available to compel disclosure through judicial process if necessary, in the face of a denial of access to such records.”
Standing alone, a postsecondary educational institution possesses the discretion to disclose, Morgan noted. However, when the institution is a public postsecondary education institution such as UNC, operating as an “agency of North Carolina” under the Public Records Act and therefore subject to comply with requests for public records under the state law, then “nothing in this section [of FERPA] shall be construed to prohibit an institution of postsecondary education from disclosing the final results of any disciplinary proceeding conducted by such institution against a student.’”
No conflict, no preemption
The court rejected UNC’s reliance upon federal preemption in multiple forms. “Conflict preemption does not exist in the present case because compliance with both the Public Records Act and FERPA is possible, and the Public Records Act does not stand as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress regarding the governance of education under Title 20 of the United States Code,” Morgan wrote.
Field preemption was also off the table, Morgan said. “In enacting FERPA, Congress has not forbidden North Carolina’s legislative body from taking action in the field of education where the disclosure of the result of a student disciplinary proceeding conducted at a public postsecondary educational institution which operates as an agency of North Carolina is mandated by the state’s Public Records Act,” he wrote.
Joined by two other members of the court, Justice Mark Davis dissented. The majority turned “the preemption analysis on its head,” he wrote, arguing that FERPA provides the defendants with the discretion to decide whether the release of the records was appropriate, triggering conflict preemption.
Hugh Stevens of Stevens Martin Vaughn & Tadych in Raleigh represented the news organizations and highlighted two outcomes from the decision.
“The practical effect is that the court ordered the university to make available the records that disclose the specific information about students found culpable or responsible for what are by any standards pretty serious sexual offenses,” he said. “The legal impact is that this is the first time that these two statutes have been analyzed this way by a state supreme court. Although public records laws vary a good deal from one state to the next, it is possible that this decision will have an impact in other states as well.”
To understand the importance of both outcomes, Stevens analogized the approximately 30,000 students at UNC to the population of a small city. “Imagine if you could never find out if anyone accused of a sexual offense was actually convicted in that city,” he said. “That’s ridiculous—people wouldn’t put up with that. But that is exactly the situation with these campuses.”
Durham attorney Jonathan D. Jones represented amici curiae Student Press Law Center and Brechner Center for Freedom of Information.
“This is a significant decision for lifting the veil around universities and not just UNC-Chapel Hill, but all campuses in the North Carolina system,” Jones said. “FERPA has been abused by public universities across the country to hide things they don’t want to reveal on their campuses. As an open government advocate, I have long been pushing for greater transparency.”
On behalf of the university officials, a spokesperson for the Attorney General’s Office declined to comment, other than to say the office is reviewing the decision.