Privacy in Public Universities: DTH Media v. Folt, Public Records, and FERPA

By: Morgan McNeil

The University of North Carolina has been no stranger to the spotlight recently. Dr. Christine Blasey Ford, UNC alum, gained notoriety when she publicly accused then-Supreme Court candidate Brett Kavanaugh of sexual assault. And amidst the Silent Sam scandal, the Daily Tar Heel Media Group, the parent company of The Daily Tar Heel, filed a lawsuit against the university. The lawsuit alleges that UNC violated North Carolina’s Open Meetings law when it negotiated a settlement with the Sons of Confederacy. 

At the intersection of sexual assault discourse and UNC’s continued involvement in litigation sits DTH Media Corp. v. Folt. The North Carolina Supreme Court will soon publish a decision for this case. In so doing, the Court will determine whether UNC must release the records of students who have been deemed responsible for sexual misconduct through the campus conduct system. Previously, the North Carolina Court of Appeals held the university was required to release the records.

What Led to the DTH Media Corp. v. Folt Case?

The Daily Tar Heel, an independent, student- run newspaper at UNC, requested that the school “release the names, offenses and disciplinary actions taken by the University against faculty or students who committed instances of sexual misconduct.” In November 2016, the Daily Tar Heel sued UNC for denying the public records request. The university stated that the records requested by the news outlet were education records protected by FERPA. The Wake County superior court sided with the university, but the North Carolina Court of Appeals ordered the school to release the records under North Carolina’s Public Records Act.

The DTH Media case now asks the North Carolina Supreme Court to decide whether to require the release of such education records when taking into consideration both FERPA and North Carolina’s Public Records Act.

Laws to Consider?

FERPA, the Family Educational Rights and Privacy Act, governs this area. Generally, FERPA forbids the disclosure of a student’s education record. Education records are documents and files containing information about a student that are maintained by a university. FERPA prevents the release of these educational records. Students convicted of sexual assault through the campus justice system have their crimes recorded in these educational records and the public is generally unaware of the information contained in them.

North Carolina’s Public Records Act states, “[t]he public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost[.]” Generally, North Carolina courts have construed this law broadly, favoring the release of public records.

Prior Decisions?

The North Carolina Court of Appeals determined UNC should release the education records of those convicted of sexual assault on campus. The Court emphasized that FERPA allows a university to release the results of a disciplinary hearing when a student has been found responsible for sexual assault on campus. The opinion states, “FERPA . . . allows an educational institution to release ‘the final results of any disciplinary proceeding . . . if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.’”

The Court of Appeals determined that because FERPA did not preclude the release of the records and the Public Records Act required the release of the records, the university should release the records. Per precedent, the Court of Appeals construed the Public Records Act broadly.

Public Policy Considerations?

Public records laws are meant to promote transparency between the government and the public. The public funds UNC System schools, so the public has an interest in learning about dangers on their campuses. Also, communities may lack awareness of what happens in insular campus justice systems. If The Daily Tar Heel were to publish the names of those found responsible for sexual assault on campus, it would bring a new level of transparency. 

Several victim rights organizations have filed an amicus brief for the North Carolina Supreme Court case. They encourage the Court not to demand the university release the records, as their release could lead to unintentionally disclosing the names of victims of sexual assault. 

Also, there is an inherent difference between a proceeding in the campus justice system and a criminal sexual assault trial. The worst punishment that can come from the campus justice system is expulsion. If perpetrators’ names were released to the public, though, the resulting publicity could become an additional punishment.

Under the Obama Administration, the Department of Education recommended using a preponderance of evidence standard in campus hearings, substantially lower than the standard used in criminal trials, beyond a reasonable doubt. The Trump Administration has urged universities to use a higher evidence standard, though. The administration was concerned that students were being denied due process rights. 

Victims may seek out the campus justice system because they are concerned about revictimization in the criminal justice system. A criminal trial is lengthy too, and it can demand the victim’s time for years. The campus justice system could give victims an alternative route to the criminal justice system, one that offers a path of less resistance.

Looking Forward            

The North Carolina Supreme Court will mainly consider whether FERPA preempts the Public Records Act. However, the consequences of this case will be far-reaching. The Court’s decision will impact victims of campus sexual assault and those found responsible for campus sexual assault, potentially putting the cases in the public eye for the first time. The DTH Media case asks the Court to consider a legal question with very personal implications.