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.
Activists respond to the petition
Anwar Boutayba, the communications director for Coalition Against Violence at UNC, said the University has framed its argument for reviewing the release of these records as protecting survivors, but perpetrators of sexual assault and organizations with histories of abuse have also been protected.
“I think their decision to involve the U.S. Supreme Court, an entity that is rather unstable right now due to (Justice Ruth Bader Ginsburg's) passing, is very calculated,” Boutayba said.
Elise Jamison, president of Law Students Against Sexual and Domestic Violence, said contrary to the University's statements, students are not discouraged from getting involved in the Title IX process because the names of those held responsible will be released.
“What discourages people is the outright active refusal of the University’s Title IX Office to hold anyone accountable,” Jamison said.
Boutayba said overturning the North Carolina Supreme Court ruling could help survivors who want to remain anonymous.
But he also said that ruling meant a lot to the activists and organizations who worked to have the records released. To have their work reversed, he said, could be a slap in the face.
“This is a very difficult two-sided coin,” Boutayba said.
Jamison said it might be better if the U.S. Supreme Court overturns the ruling because of victim vulnerability. Still, she doesn't think the records release will discourage someone from reporting something through the Title IX office.
She said she and her organization, Law Students Against Sexual and Domestic Violence, do not think the records release was helpful action in the first place, as it does not tell people much other than potentially revealing the identities of victims.
“The only thing that information told us is that the Title IX Office is failing to hold people accountable for their actions,” she said.