Over a year after the North Carolina Court of Appeals said UNC must release the names of people found responsible for rape, sexual assault or any related acts of sexual misconduct through the University's Honor Court, Committee on Student Conduct or Equal Opportunity and Compliance Office to complete a public records request made by The Daily Tar Heel, lawyers argued the case before the North Carolina Supreme Court.
Stephanie Brennan, special deputy attorney general for the North Carolina Department of Justice, said the Court of Appeals erred in holding that the University was required to disclose this information for three reasons: the North Carolina Public Records Act has an exception for when the Family Educational Rights and Privacy Act applies; there is conflict between FERPA and the Public Records Act in this case; and the Public Records Act poses an obstacle to federal objectives.
Brennan said that when FERPA, a federal law, comes into conflict with state records laws, the records law should yield, allowing the University to have discretion when it comes to disclosing the names of perpetrators. Hugh Stevens, an attorney representing the DTH, said FERPA does not apply in this situation.
Brennan’s arguments also referenced concerns that releasing the names of sexual assault perpetrators would jeopardize the anonymity of their victims. She referenced affidavits filed that provided reasoning for the University not to include this information in sexual assault cases.
“With respect to the victims, the affidavits testified that there would be a chilling effect if the names were put out to the press,” Brennan said.
Stevens, on the other hand, argued this should not be a concern because the DTH is not requesting the names of sexual assault victims. He said the University’s brief only referred to perpetrators once and questioned why the University was protecting these people’s privacy.
“What’s the privacy interest in keeping secret the names of people who have committed heinous sexual offenses on campus?” Stevens said. “Why is the University protecting sexual predators at all?”
Brennan rejected what she called "attacks" on the University's motives, saying that there is no supporting evidence for bad faith on UNC's part.
The DTH filed the lawsuit in November 2016, along with WRAL, The Charlotte Observer and the Durham Herald-Sun, after the University failed to meet a one-month deadline for the public records request. The North Carolina Superior Court ruled in May 2017 that the disclosure of the request was at UNC’s discretion.
The DTH appealed the decision in September 2017, and the North Carolina Court of Appeals ruled in April 2018 that the University must release the names of people found responsible for rape, sexual assault or any related acts of sexual misconduct through the University's Honor Court, Committee on Student Conduct or Equal Opportunity and Compliance Office.
Jane Wester was the editor-in-chief of the DTH when the request was filed. Wester has since graduated from the University, but came to Tuesday’s arguments to follow the course of the conflict.
Wester and her coworkers at the DTH initially requested to see how the new UNC sexual assault policy, which was instituted a few years after a Title IX complaint, was working. She said the request is still as relevant now as it was three years ago.
“They’ve been using the argument of, ‘It reveals details of the victims,’ all along, and I think it’s just important to know that the request is only about perpetrators and how they’re being punished,” Wester said. “We’re not requesting the details of what led to the punishment or anything like that.”
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