UNC must release names of sexual assault perpetrators, NC Supreme Court rules

May 1, 2020

UNC will be required to release the names of individuals found responsible for rape, sexual assault or related acts of sexual misconduct, according to a North Carolina Supreme Court ruling announced Friday.


The 4-3 decision ends a nearly four-year fight for records of the University’s sexual assault disciplinary proceedings that began when this month’s graduating seniors were halfway through their first semester at UNC.


"We are deeply disappointed with today’s decision,” Joel Curran, UNC vice chancellor of  communications, said in a statement. "We respect the court’s deliberations and appreciate the opportunity to be heard during the appeals process. We are carefully reviewing the decision." 


The DTH Media Corporation first filed the lawsuit against UNC in a coalition with three other N.C. media companies in the fall of 2016, claiming the University had violated North Carolina public records law by refusing to release the names, offenses and disciplinary actions for students or faculty found responsible for sexual misconduct. 


The case worked its way up the court system for the next three years, concluding with oral arguments before the state supreme court in August 2019. On Friday — nine months later — the court ruled in favor of the coalition in a split decision.


“It opens a lot of doors for us,” Anna Pogarcic, 2020-21 DTH editor-in-chief, said. “... Being able to look at who’s perpetrating these crimes is going to be really important to our coverage, because that’s something we’ve been looking for for years  — and obviously that will change the whole conversation.” 


In 2014, UNC built a new Title IX system from scratch following a federal complaint that accused the University of violating the rights of victims and creating a hostile environment for reporting incidents.


“There were headlines back then like ‘UNC jumps ahead’ with this really progressive, strong policy that should be really protective for victims,” said Jane Wester, 2016-17 editor-in-chief. 


Reporters at the DTH made multiple public records requests related to how the new system had changed the way sexual assault was treated on-campus, Wester said.


“We had filed different record requests related to that,” she said. “And not gotten a lot of response, or not gotten as specific the information that we wanted.”


Erica Perel, DTH general manager, recalled similar challenges. 


“In the end there was no data,” she said. “There was no ability to kind of see if the policies, which seemed to be improvements — there was no way to tell if those policies were being carried out in a way that was right. There was no way to get a clear picture of the cases.” 


When DTH reporters put in a request for the names of those found responsible for sexual misconduct, the request was denied. When DTH reporters asked for the case information with names redacted, the request was also denied.


The University initially claimed that the Family Educational Rights and Privacy Act, a federal law that protects the privacy of student records, gave them discretion over whether or not to provide this information, Perel said. 


The DTH and the coalition of other media groups argued that a FERPA exemption — which allows universities to disclose the result of disciplinary proceedings that find a student responsible for a violent crime — meant the school was required to release the information under state public records law.


In North Carolina Superior Court, Judge Allen Baddour ruled that the disclosure of records was at the University's discretion in May 2017. After the DTH and its coalition appealed, the Court of Appeals ruled in favor of the coalition. The University then appealed to the state’s supreme court. 


North Carolina's is the first state supreme court to reach a decision on this exact issue, said Frank LoMonte, senior legal fellow and former executive director of the Student Press Law Center, said. The center filed an amicus brief in support of the DTH's case. 


“When you are the first state supreme court to decide an issue, that does provide guidance for the others,” he said. “I think the other states are going to hesitate to adopt contradictory views of FERPA.”


Some victims' rights groups have advocated against the identification of on-campus perpetrators, arguing it would inadvertently identify survivors. One such group filed an amicus brief in support of the University.

But LoMonte said the decision could hold all perpetrators more accountable. 


“When the campus disciplinary system stops being opaque and impenetrable, then we will no longer have two parallel systems of justice: one for people rich enough to get a nice college and the other for everybody else.” LoMonte said.


Hugh Stevens, an attorney representing the DTH, said he can’t say for sure when the University might provide the records in question, though it has been mandated by law to do so.


There's also no way to predict what the records will reveal, Wester said. 


“My big fear... is that we think it’s going to be this massive document dump, or we’d like to think that,” Wester said. “And it might not be. We might see that very few people have been held accountable.”


Read more at: https://www.dailytarheel.com/article/2020/05/release-names-lawsuit-0430


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