UNC asks high court to review order to release sex assault records

A month after a panel of appeals court judges unanimously ruled that the University of North Carolina at Chapel Hill must release disciplinary records about sexual assault, lawyers for the university have asked the state Supreme Court to intervene in a case that's likely to have statewide implications.

The university three years ago updated its policies and procedures for handling sex assaults, following a federal investigation spurred by a complaint filed by several assault victims. They claimed UNC-Chapel Hill under-reported sexual assault cases in an annual report to the federal government on campus crime and alleged that campus officials had created a hostile environment for students reporting sexual assault.

UNC-Chapel Hill now requires all students to take an online sexual violence and harassment training course, and its new policy details prohibited conduct, including stalking gender-based harassment, provides resources for victims and outlines the adjudication process. As part of that last element, students no longer sit on grievance panels that hear sex assault cases; only trained personnel handle such cases.

FERPA specifically limits the release of such records to the "final results of any disciplinary proceeding," including the student's name, the violation and any related sanction. The names of other students, such as victims or witnesses, can only be released with their written consent. The news organizations in the lawsuit did not request the names of victims or witnesses.

Yet, UNC lawyers argue that the federal law grants university officials discretion over whether to release these disciplinary records. Requiring their release, the filing says, is wrong because federal law trumps the state's public records act.

They're also urging the Supreme Court to take the case because they say the appeals court ruling will damage the university's efforts to address sexual assault and create "reputational consequences" for victims and disciplined students alike.

"Violating confidentiality by naming names would undermine the fragile trust that the university has built to encourage reporting of sexual violence in a manner that federal law both encourages and requires," lawyers wrote.

Although the appeals court acknowledged that FERPA prevents the disclosure of victim and witness names without express permission, UNC says students will be less likely to come forward and victims will be harmed because they can be "easily linked" if responsible students are named.

"Moreover, the responsible student may be prompted, if named publicly, to launch a public defense that includes publicly naming the victim on social media, in the news media, or in conversations on campus," the filing said. "Thus, a victim who does not want to be publicly known may not want the responsible student's name to become public."

University proceedings only determine whether students have violated code of conduct policies, not criminal law – and they do so at a lower standard of proof. By releasing names when the university finds students responsible for sexual assault, UNC lawyers wrote they'll "forever be publicly branded as sex offenders."

"In additional to reputational consequences and lost future opportunities, responsible students who are named publicly can be subject to severe harassment and retribution," the filing said. "Public identification thus effectively imposes a punishment beyond the University's sanction, potentially threatens the students' safety and hinders the university's ability to educate and rehabilitate students."

It's now up to the North Carolina Supreme Court to decide to hear the case, which will undoubtedly impact how similar disciplinary records are handled at all of the state's public university campuses.

Other UNC System institutions are already watching closely. In an email Tuesday, North Carolina A&T State Associate Vice Chancellor Todd Simmons told WRAL News the university would not provide records in response to an identical request during the state Supreme Court's temporary stay.