Several media groups, including the Charlotte Observer and Durham’s Herald-Sun, have sued UNC-Chapel Hill Chancellor Carol Folt for access to student disciplinary records. Originally denied at the district court level, the case is currently pending at the North Carolina Court of Appeals.
The plaintiffs point to a clause in the NC Public Records Act which defines student disciplinary records as property of the people. In conflict with this law is the federal Family Educational Rights and Privacy Act, (FERPA) which strictly limits the scope of information that schools are allowed to release.
According to the statute, schools can only release the name of the student, the type of offense committed and the sanction imposed on the student. This information can only be shared if the offense is a “crime of violence” or “non-forcible sex offense” and at the discretion of each individual school. So, when Folt declined to release that information, these groups decided to sue her to change her mind.
I find this mind-boggling. There is no legitimate legal question at hand here. This is an airtight case where federal law trumps state law, and the issue of gaining access to this information falls squarely on the shoulders of Folt. Rather than filing petitions with the school, the Board of Governors, the General Assembly or Congress, the media decided to run crying to the court system to try and get what they want.
This is not to say that the media has poor motives for wanting this information. An amicus brief submitted to the Court of Appeals by the Student Press Law Center expresses concerns about the political consequences associated with maintaining the privacy of the names of these students. They reference that some schools may shield information to cover up the scale of misconduct on their campuses or to hide mishandling of cases. This would be no surprise at UNC-CH, plagued by scandals like paper classes and fear of sexual predators as highlighted in “The Hunting Ground.” Additionally, they argue that the public has an overriding interest in access to the names of offenders.
To get a better feel for the cloud of issues around this lawsuit, I spoke to Tom Hardiman, the director of the office of student conduct here at NC State. He made the case against releasing the records, as NC State generally does, keeps the information confidential. When I told him that some people are arguing that there is an overriding interest, he told me that he “can understand the perspective, but in practice there are other factors at the institutional level to protect the community.”
My biggest takeaway from the conversation was more about what it would mean if the media did have access to the names of these students.
“This is potentially a slippery slope,” Hardiman said. “There is the university system and there is the criminal system. By releasing a list of names, we would essentially be making a fake sex offender registry, and that is not our place.”
Even though most universities are public and government institutions, their disciplinary procedures are no different than that of a private business. Complainants can still file charges in court, the documentation of which is public record, but the universities maintain their own discretion in determining “whether a student is fit to remain in [the] community.”
Regarding the claim that schools hide the shameful and damaging incidents that happen on their campuses, the media need look no further than the Clery Act. This law requires schools that receive financial support from the federal government to report security information and publish crime statistics ranging from rapes and murders to alcohol referrals. Information is published Oct. 1 of every year for the previous year’s incidents, and these policies and statistics are available online and at every campus police department.
While schools maintain the right to protect the privacy of their students, they risk their funding if they fail to provide the information that can indicate trends, crime problems and what parents are getting their kids into when then send them to UNC-CH or any other federally funded school.
While these media groups have a point, and their hearts are in the right place, they fail to recognize the big picture. With the issue of sexual misconduct coming even more into the attention of Americans, it is expected to see this kind of response. The media sits in a unique position to help make this country be better, but an erroneous lawsuit against an airtight legal inconvenience is not the kind of response that will spur progress.
This is more than just a last-ditch effort or publicity scheme, it is a symptom of a chronic problem in this country today. Groups who decide that they don’t like a law that is on the books or a decision that a public figure like Folt makes frequently turn to the courts in the hopes of some providential act of judicial activism.
Rather than use the brilliant and beautiful political process that we call representative democracy and influencing people in the court of public opinion, the media has decided to gum up the civil court system with frivolous garbage while making no progress towards their actual goal of informing and protecting the public.
