Op-Ed: North Carolina Court of Appeals delivers blow to student privacy
In a decision published Tuesday, the North Carolina Court of Appeals ruled to the benefit of several media groups over UNC-Chapel Hill, ordering the school to release the names of students found responsible for certain offenses in the university system.
As reported by Technician, the ruling establishes that the North Carolina Public Records Act supersedes the discretion granted to universities by the Family Educational Rights and Privacy Act. In the opinion of the court, state law can be used to force the hand of its public universities in the few instances where schools are allowed to disclose any information about its students.
In a column I wrote at the beginning of March, I prayed for the Court of Appeals to uphold the decision of the Superior Court and to keep the media away from this protected information. When I interviewed Tom Hardiman, the NC State director of the office of student conduct, he expressed his worry about “a slippery slope.”
“There is the university system and there is the criminal system,” Hardiman said. “By releasing a list of names, we would essentially be making a fake sex offender registry, and that is not our place.”
I spent most of my time in that column addressing my opinion on how the laws interact and covering my concurrence with the original decision in favor of UNC-CH. Here I will address the problems if this decision is not overturned.
As things stand, every current and former student at every public university in North Carolina will be subject to suffering enormous consequences for nonviolent offenses that they may not have even committed. The broad strokes that FERPA takes are supposed to protect students from the imprecision of a system that is designed to be self-contained and only affect individuals in their relationship to the educational institution.
UNC-CH has recently been the target of much criticism for its handling of sexual offenses, and reasonably so. However, this handling is an internal issue. It is wrong to allow or encourage a system with imperfections to have any wider effects than it suffering with its own mistakes.
This is exactly why the names of these students can’t be released. The standard for responsibility is “more likely than not.” This lessened standard comes from the necessity to handle internal affairs while court procedures can take time and greater scrutiny to come to a more weighty decision. The public release of names found responsible under this lower standard could jeopardize students, and inherently carries a higher risk of penalizing a student for an offense which they were not responsible for.
While this lower standard is appropriate in an internal affairs system, allowing these decisions to hold any weight outside of the university system is an inappropriate risk. The realm of public responsibility belongs in the criminal justice system, not through any organization with low standards.
While Secretary of Education Betsy DeVos has made an attempt to raise this standard for sexual offenses to “clear and convincing,” even this higher standard is not enough to warrant the risk of error.
This standard that the court is adopting, when applied to the internal disciplinary proceedings of other organizations, places privacy and justice in grave jeopardy.
Students in public schools other than universities are afforded privacy of their educational records, even after they turn 18. Only, at this point do these students become subject to full penalties in a court of law. There is not anything that one could point at to distinguish the severity of a nonviolent sexual offense by an 18-year-old in high school from one by a 19-year-old in college unless one goes to court while the other does not.
Not only is this a privacy issue, it is a failure of internal affairs. Alleged offenses that also go to court do become part of public record and do no prevent penalties under the university system. Police forces do not release the details of internal affairs unless charges are pressed. Why should we apply more scrutiny to foolish students, or worse, incorrectly penalized students who may have just fallen victim to misleading evidence or the biases of students and faculty untrained in investigation.
All this said, people, whether students or otherwise, should be held responsible for the things that they do. People should not sexually harass others, or do any of the other reprehensible things that schools are able to punish students for. Those who are guilty and are then found responsible for such things get what they deserve, and should consider themselves lucky that schools do not penalize behavior in such a way that their conclusions are certain enough to make public.
I wish we had a means by which we could be more confident about the accuracy of decisions made by schools so that students would be more deterred from making poor decisions that can and do make an impact the lives of others. Unfortunately, the security of reputations and accurate public records of those students who do the right things are more important than having access to the school records of those who do not, deserving as they may be of whatever comes their way after their time in school.
I hope that UNC-CH appeals this decision to the North Carolina Supreme Court and that they will set things straight. In the meantime, Carol Folt, UNC-CH chancellor, ought to do everything in her power to help students on her campus feel safe by holding her own students and student-athletes accountable on the university level, and by doing so help repair the severely damaged reputation of her school.