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UNC must disclose sexual assault findings, judges rule

The Old Well on the UNC campus in Chapel Hill, N.C.
The Old Well on the UNC campus in Chapel Hill, N.C. rwillett@newsobserver.com

UNC Chapel Hill must provide the public with the names of students and employees found responsible for rape, sexual assault or related offenses through the school’s honor court and internal procedures.

The North Carolina Court of Appeals issued a ruling on Tuesday disputing the university’s claims that federal law prohibits UNC Chapel Hill officials from turning over such records.

The unanimous ruling came almost a month after attorneys for The Daily Tar Heel, the UNC student newspaper, and other media organizations made arguments in a special court session held at N.C. Central University in Durham.

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The court case stems from a Sept. 30, 2016, public information request by The Daily Tar Heel. Reporters asked for records “in connection with a person having been found responsible for rape, sexual assault or any related or lesser” offense by the school’s honor court, the Committee on Student Conduct or the Equal Opportunity and Compliance Office.

The university declined to provide the information, calling the data “educational records” protected by the Family Educational Rights and Privacy Act.

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The Daily Tar Heel, the Charlotte Observer, the (Durham) Herald-Sun and WRAL filed a lawsuit.

In May 2017, Judge Allen Baddour ruled in Orange County that federal law protecting student records supersedes state law that allows for the release of such information in some cases.

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Baddour also found that the state Human Resources Act limits what information can be released about state workers disciplined, demoted or dismissed for disciplinary reasons to the dates and types of actions taken and a copy of the termination letter setting out the reason the employee was dismissed.

The appellate ruling issued Tuesday states that federal law does not prohibit the limited information requested by the Daily Tar Heel “except for the dates of offenses,” which were not included in a narrowly-tailored exception in the federal law.

Attorneys for the university argued that release of the records “would interfere with UNC-CH’s Title IX process for dealing with sexual assault” by deterring victims and witnesses from coming forward, as well as jeopardize the safety of those alleged to have committed sexual assaults.

“‘It is critical to our system of government and the expectation of our citizens that the courts not assume the role of legislatures.’ Normally, questions regarding public policy are for legislative determination,” attorneys for the university argued.

UNC weighs options

The judges did not address the merits of the arguments about public policy but noted that federal law “specifically mandates that any disclosures may include the name of any other student, such as victim or witness, only with the written consent of that other student.”

Because the judges — John Tyson, Wanda Bryan and Rick Elmore — were unanimous in their decision, the university can ask the state Supreme Court only for a discretionary review, which is not automatically granted. On Tuesday, a spokesman said the university was reviewing its options.

“We are disappointed with the N.C. Court of Appeals decision and are examining all legal options as we review the ruling. We firmly believe Judge Baddour made the correct decision last May by recognizing the University’s legal and ethical responsibility under federal law to protect the privacy rights of all students.," UNC spokesman Joel Curran said in a statement.

"Our position is based on the principle that we must protect the identities of survivors and other parties who put their trust in the University’s Title IX process and their rights under federal privacy law. Releasing the names of those found responsible in sexual assault or misconduct cases could lead to disclosures about the names of survivors and witnesses who filed reports expecting a confidential process. That change could have a chilling effect on survivors’ decisions to file reports and witnesses’ willingness to participate, jeopardizing years of work by the University to encourage more reporting under the Title IX process.”

Hugh Stevens, the Raleigh-based attorney who represented the media coalition with his colleague Mike Tadych, said Tuesday the university's response was disappointing — that he had hoped officials would have agreed to turn over the records.

Stevens talked about similar situations in Florida and Ohio, where university officials released records.

The ruling comes at a time when UNC continues to work on overcoming a wave of criticism for its handling of sexual assault cases.

"Hopefully, these records will shed light on how these serious offenses have been handled," Stevens said.

UNC-Chapel Hill adopted a new policy for handling sexual assaults in 2014 after five women asked the federal Education Department’s Office of Civil Rights to look into what they called an atmosphere of sexual violence at the school. In their 2013 complaint, the women contended that officials had created a hostile environment for students reporting assaults and had under-reported the number of complaints.

The ruling on Tuesday sends the case back to Baddour in 15 days for further ruling.

"We hope it will be quickly," Stevens said.

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