UNC petitions U.S. Supreme Court to review ruling in sexual assault records case

UNC has petitioned the U.S. Supreme Court to review the ruling that ordered it to release sexual assault records, following a four-year lawsuit. The University cited the safety and well-being of students as reasons the ruling should be reviewed.

The University released the records in August, showing that 15 students had been found in violation of UNC's sexual assault policy since 2007. The North Carolina Supreme Court ruled in May that the records must be released under state records laws. 

UNC filed a petition for writ of certiorari on Sept. 28, which requests the ruling in the case of DTH Media Corp. vs. Folt be sent to the U.S. Supreme Court for review. The University is filing this petition under the belief that universities should not be forced to release student records that could identify survivors of sexual assault, Joel Curran, vice chancellor of university communications, said in a statement via UNC Media Relations. He said campus community members have expressed similar concerns since the ruling.

“Now, we are asking the U.S. Supreme Court to consider ruling on the important question of whether federal law protecting the reasonable privacy rights of college students takes precedence over state public records laws,” Curran said in the statement. 

The legal argument

The petition for writ of certiorari presents the question: “Does the Supremacy Clause permit a state public-records law to override the discretion that FERPA grants universities over the disclosure of sexual assault disciplinary records and instead mandate that those records be publicly disclosed?”

In reference to the effects the release of these records could have on survivors, witnesses and those accused of sexual assault at UNC, the petition argues that:

• Witnesses of sexual assault and violence may disrupt the investigations and seeking of results by the University (in reference to the Title IX process) by not cooperating.

• Those accused of violating the University’s policy on sexual misconduct may not voluntarily accept the responsibility of their actions in addition to the possibility of harassment, retribution, threats to immediate physical safety and a lifelong stigma even if not found guilty.

• Confidentiality encourages victims of sexual violence to participate in the University’s Title IX process and report cases.

• “Moreover, because a victim often has a prior connection to a responsible party, disclosure of a responsible student’s identity may expose the victim’s identity too, particularly given the ready availability of personal information online and the ubiquity of social media.”

But Hugh Stevens, the lawyer who represented the DTH Media Corp. in the lawsuit, said what the University believes could happen has no legal weight.

“Even though one of the courts ruled against us and two ruled in our favor, they all unanimously agreed that why the University wanted to withhold this information was of no importance here," Stevens said. "The only question was, 'Can they legally do it?'"

Stevens said that in his view, the University's arguments are an attempt to convert the case from one of statutory construction, an interpretation of law, to one reliant on its policy arguments, which look at potential effects of law. 

The petition argues that UNC has “historically chosen not to disclose these records” as one of the statements of the case. “Part of what's interesting here is that it's only fairly recently that universities were given ... the authority to handle these cases, many of which would be felonies if they were processed in a regular court system,” Stevens said.

Stevens said one of the reasons access to the records was sought out originally was because universities are “almost peculiarly ill-equipped” to handle cases involving sexual assault. 

“At the end of the day, it really comes down to this: the University wants to exercise what they call discretion, that the State of North Carolina, which owns the University, didn’t give them,” Stevens said.

It is likely that Stevens and the DTH Media Corp. will respond to the University’s petition, Stevens said.

Read more at: https://www.dailytarheel.com/article/2020/10/university-records-court-ruling-review