Other voices: Time to name names at UNC

Published 12:00 am Tuesday, May 1, 2018

Our state’s flagship public university can no longer hide behind federal student privacy laws when it comes to shielding the people it’s disciplined for sexual misconduct from scrutiny.

A unanimous three-judge N.C. Court of Appeals panel ruled Tuesday that the University of North Carolina at Chapel Hill must disclose the identities of students and faculty members it has judged responsible for sexual assault and sexual harassment.

The ruling is a win for open government advocates — The Daily Tar Heel student newspaper, WRAL-TV owner Capital Broadcasting Co., The Charlotte Observer and The Herald-Sun of Durham are the plaintiffs — and it will subject both the accused and the system that judges them to necessary public scrutiny.

Student editors sued UNC after it refused to fulfill a September 2016 public records request seeking documents related to individuals “found responsible for rape, sexual assault or lesser included sexual misconduct” by the college’s honor court, its Committee on Student Conduct or its Equal Opportunity and Compliance Office.

The university acknowledged the Federal Educational Rights and Privacy Act contained an exemption that would allow it to name names. Attorneys for UNC argued, however, that FERPA grants colleges discretion to determine whether the information should be released.

“(C)ontrary to defendants’ assertion, FERPA does not expressly or impliedly grant educational institutions the absolute discretion to decide whether to release exempt educational records,” Judge John M. Tyson wrote.

UNC also argued that the federal law preempts, or overrides, the North Carolina Public Records Act. The three-judge appellate panel found no conflict between FERPA provisions and state sunshine laws, concluding that the university could release public records without running afoul of Congress.

To support its weak legal arguments, UNC padded its brief with doom-and-gloom predictions that would make Chicken Little blush. Disclosing the identities of those it determines have committed harassment and assault could inadvertently identify victims, undermine trust in the campus judicial system and deter victims from coming forward, lawyers argued.

Judges waved those protestations off, noting that public policy questions are reserved for the General Assembly and the courts’ proper role is to interpret the law, not rewrite statutes to suit litigants’ tastes. Indeed, it would be unprecedented overreach for judges to invent an exemption to public records law from whole cloth.

… We hope the university stops wasting taxpayer money on litigation and releases the public records without further delay. Naming names is firmly in the public’s interest. Classmates, professors and members of the community at large should have the right to know when someone is judged responsible for sexual misconduct.

Notice that students and faculty members are considered “responsible” rather than “guilty.” That’s because universities are not courts and lack the authority to issue criminal or civil judgments. The harshest punishment a college can mete out is expulsion, and much campus discipline falls far short of that.

While individuals with a black mark on their records may notice some glares in Carolina’s courtyards, we’re betting that disclosure will subject UNC’s disciplinary system to far harsher scrutiny, a move that’s long overdue.

Following misguided guidance from the U.S. Department of Justice on Title IX, American colleges are in over their heads where sexual misconduct is concerned. Panels of students and administrators are tasked with weighing allegations of rape and sexual assault without forensic evidence, subpoena powers, perjury penalties or participants’ right to cross-examine witnesses. Many cases hinge on personal testimony. It’s largely a he-said, she-said affair.

The result is sham trials overseen by kangaroo courts where the innocent are judged “responsible” and those guilty of serious crimes are let off with a slap on the wrist — a suspension, a switched class, academic probation. …

Releasing public records on these often farcical campus hearings will rally victims and their advocates against insufficient punishments and give the wrongfully accused an incentive to clear their names in a real courtroom.

Sunshine is the best disinfectant, and it could be the saving grace that leads to increased criminal prosecutions for college sexual assault.

— Fayetteville Observer