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Will high court allow 'Double Secret Probation'?

Corey Friedman on

Should public colleges be able to keep records from their secretive Title IX tribunals under lock and key, or do students have a right to know when their classmates are found responsible for sexual misconduct?

The U.S. Supreme Court could answer that question once and for all if justices agree to hear the University of North Carolina's appeal of a state high court ruling that forced school officials to name names.

UNC petitioned the Supreme Court to review the case Sept. 28, the Daily Tar Heel student newspaper reported. University officials framed the issue as a conflict between state public records law and the federal Family Educational Rights and Privacy Act, or FERPA. Yet FERPA expressly allows schools to identify students disciplined for sexual misconduct and describe the punishments they received.

If colleges have discretion, university attorneys argue, administrators should be able to refuse requests. But as a state university, UNC is subject to North Carolina's public records law. The North Carolina Supreme Court ruled that colleges can meet their confidentiality obligations under FERPA and their disclosure obligations under state statutes.

In August, the university released records on 15 student disciplinary cases: 10 involving sexual assault or sexual violence, four involving sexual misconduct and one case of nonconsensual groping. The Daily Tar Heel reported on those cases and their outcomes, but so far, it has withheld most students' names.

"One of the big questions that we had going into the lawsuit was, 'Is UNC holding anyone accountable?' and I think the answer that we got yesterday was 'Hardly anyone in all these years,'" Jane Wester, a former DTH editor-in-chief, told the independent student paper.

 

Only one student was expelled. The other 14 received suspensions of varying lengths and other intermediate punishments.

Without a valid legal argument to hide the records, UNC is relying primarily on a public policy pitch. The Supreme Court should weigh in, the university says, because confidentiality may encourage victims and witnesses to participate in the Title IX process, and naming those found responsible could inadvertently identify survivors.

Those reasons, or excuses, are irrelevant to a case that turns on the interplay between state and federal law.

"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," Hugh Stevens, an attorney for the Daily Tar Heel, told the newspaper. "The only question was, 'Can they legally do it?'"

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