The University has yet to release sexual assault records as ordered two months ago in a North Carolina Supreme Court ruling.
The state supreme court ruled in a 4-3 decision in May that UNC would be required to release the disciplinary records for individuals found responsible of committing rape, sexual assault or other acts of sexual misconduct. The decision came nearly four years after The Daily Tar Heel and three other media companies first filed the lawsuit against the University, arguing that UNC’s refusal to release such records was a violation of North Carolina’s Public Records Act.
In a June 15 email, Special Deputy Attorney General Stephanie Brennan informed Hugh Stevens, who represents the media corporations in the lawsuit, that the University expected to release 11 responsive records by June 30, absent court intervention.
Separately, two students who were found responsible for violating UNC’s sexual harassment policy filed a motion to intervene on June 23 and seek the court’s permission to use gender neutral pseudonyms, as they believed disclosing their identities “will cause them immediate and irreversible reputational and economic harms.”
In response to an inquiry by Stevens about the release of the 11 records, Brennan said that production would not occur on June 30 because of developments that required resolving “a handful of issues.” She said that in addition to the plaintiffs not agreeing upon the scope of the records being produced, the University believes the court must hear the intervening motion filed by the students.
“We agreed to cooperate with you to have that happen as soon as possible and we have taken appropriate steps to inform the court of our availability and the need for a status conference,” she wrote.
Stevens said that he believes there is no justification in delaying the production of the records, and that he is reviewing legal options regarding the release of the records in compliance with the court’s order. He also said the May 1 decision did not include a requirement that the scope of the records would be agreed upon.
“In the almost four years that our litigation was pending I came to understand how desperately the University wanted to avoid producing records identifying the perpetrators of egregious sexual misconduct, but I never thought that desperation would lead it to renege on a written commitment to comply with an order of the Supreme Court of North Carolina,” Stevens wrote.
The plaintiffs’ opposition to the motion also said that they believe the court should not entertain the motion, stating that the court lacks the jurisdiction to do so and called the motion to intervene “untimely.”
Brennan did not initially respond to request for comment.
Motion to stay
In the original lawsuit, UNC argued that the University was prohibited from complying with the public records law because of provisions under the Family Education Rights and Privacy Act.
On May 18, the University motioned to stay the N.C. Supreme Court’s mandate, stating that the case brings up an important issue for review under federal law. The University also argued that the disclosure of records during current litigation would “cause irreparable injury to both the victims of sexual assault and responsible students.”
Additionally, the motion stated UNC’s intention to petition for a writ of certiorari in the U.S. Supreme Court to review the state court’s judgment, which they said would likely receive a decision in the fall.
“A limited stay of a few additional months will not harm plaintiffs’ alleged right to access the records,” the motion stated. “Indeed, plaintiffs seek records dating back to 2007 and cannot show any immediate need for their release.”
Though the N.C. Supreme Court denied the motion on May 21, the court temporarily suspended the stay of mandate, allowing the University to apply for a stay to the U.S. chief justice by June 10, which it did not do.
In a statement via UNC Media Relations, Joel Curran, vice chancellor for University communications, said the University cannot comment at this time, as there are issues related to the records' release still pending before court.
On June 30, the day the records were meant to be released, Chancellor Kevin Guskiewicz released a statement announcing a $1.5 million settlement between the University and the U.S. Department of Education over years of Clery Act violations.
Anna Pogarcic, 2020-21 DTH editor-in-chief, said the coinciding of the settlement announcement and delay in obtaining records was “kind of ironic.”
“I do understand that universities have an image that they want to protect, and I believe that had something to do with the fact that the University challenged our public records requests in the first place, and took us to court for these past years,” Pogarcic said. “But you also just have to wonder how that balances with their obligation to protect students and make sure students are held accountable if they perpetrate crimes.”
She also said this issue could impact newsrooms at public universities across the state because the N.C. Supreme Court ruled on behalf of state public records law.
“The longer it takes for the University to give us these records, the longer this story is going to continue being unfinished, and the more that impacts our ability to portray the whole picture of sexual assault,” Pogarcic said.
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