This post appears here courtesy of the Carolina Journal
. The author of this post is Mitch Kokai
With the U.S. Supreme Court shutting the door this month on future legal action, a state Supreme Court decision will continue to dictate the University of North Carolina's compliance with public records requests linked to sexual assaults.
Now is a good time to review the issue. Membership on the N.C. Supreme Court has changed since justices split
, 4-3, on the topic last spring.
The dispute dates back more than four years. In September 2016, media organizations including the student-run Daily Tar Heel issued a request to the University of North Carolina at Chapel Hill. The media wanted copies of records of all students found responsible through campus agencies for rape, sexual assault, or other related misconduct. Within a month, the university denied the request.
Campus officials labeled the requested records protected under the federal Family Educational Rights and Privacy Act. Because of FERPA, the records were "protected from disclosure."
The media outlets countered that the records should be released under North Carolina's state Public Records Act. After another month of negotiation and mediation, the media outlets filed suit.
A trial judge sided with the university in 2017, but a unanimous three-judge panel of the N.C. Court of Appeals reversed that decision the following year. The Supreme Court could have declined to take the case. Media outlets would have won access to the campus sexual assault records.
Yet the state's highest court agreed to take up the controversy. After hearing oral arguments in August 2019, the justices needed another eight months before handing down a decision on May 1, 2020.
With a 6-1 Democratic majority, and the 2020 election campaign in full swing, the decision nonetheless carried no signs of partisan split. The court's lone Republican, then-Associate Justice Paul Newby, joined three Democratic colleagues to form a bare majority. Justice Michael Morgan wrote for them.
"The Public Records Act 'affords the public a broad right of access to records in the possession of public agencies and their officials,'"
the majority opinion reminded readers. "The Act is intended to be liberally construed to ensure that governmental records be open and made available to the public, subject only to a few limited exceptions."
"The Public Records Act thus allows access to all public records in an agency's possession 'unless either the agency or the record is specifically exempted from the statute's mandate,'"
Morgan's opinion continued. "'Exceptions and exemptions to the Public Records Act must be construed narrowly.'"
Morgan poked holes in the university's arguments about federal law. He specifically rejected the notion that university officials had discretion to decide whether to release the disputed records.
"[T]here is no express provision in FERPA that reposes the authority in UNC-CH to exercise the discretion that it purports to have,"
Morgan wrote. "On the other hand, plaintiffs assert that there is no conflict between the state's Public Records Act and the federal law, that the Public Records Act and its underlying legislative intent support liberal access to the records at issue here. ..."
Three justices rejected Morgan's argument. "The majority's analysis fundamentally misapplies the federal pre-emption doctrine,"
wrote Justice Mark Davis in dissent. He referred to the doctrine that allows federal law to overrule — or pre-empt — state law when the two types of law come into conflict.
"[T]he dispositive issue in this case is whether FERPA confers discretion upon universities regarding whether to release the category of records at issue,"
Davis continued. "If FERPA does so, then the doctrine of pre-emption precludes states from mandating that universities exercise that discretion in a certain way."
Davis found clear evidence supporting university administrators. "FERPA and its accompanying regulations gave defendants the discretion to decide whether release of the records sought by plaintiffs was appropriate,"
he concluded. "The Public Records Act, conversely, would — if given effect — make the release of such records mandatory, thereby completely eliminating the discretion conferred by Congress."
State law could not overrule FERPA, according to Davis' analysis. "In short, a federal law's 'may' cannot be constrained by a state law's 'must.'"
Since Morgan's argument prevailed among the seven justices, the university ended up releasing requested records last summer. Yet the university asked the U.S. Supreme Court to review the state ruling.
The nation's highest court rejected that request Jan. 11. This case is over.
But what about future instances in which the Public Records Act could conflict with provisions of FERPA?
One of the four votes supporting media access in the sex assault records case, then-Chief Justice Cheri Beasley, has left the court. She lost her job
to Newby in the 2020 election.
Davis is also gone, replaced on the court by new Republican Justice Tamara Barringer. Given her prior work as a UNC-Chapel Hill professor, it's unclear how Barringer might respond to her former employer's legal arguments about FERPA restrictions.
Fellow new Justice Phil Berger Jr. took no part in the sex assault records case when it reached his former colleagues at the N.C. Court of Appeals. His vote also could prove crucial if a similar controversy arises in the years ahead.
Morgan's majority opinion marked a victory for public access to records held by public universities. Time will tell whether the case sets a solid precedent for future campus transparency.
Mitch Kokai is senior political analyst for the John Locke Foundation.