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Supreme Court May Determine if Title IX Records Must Be Disclosed under State Public Records Act

The Family Educational Rights and Privacy Act (“FERPA”) protects the privacy of “education records.” FERPA does, however, allow a college or university to disclose to the alleged victim the final results of a disciplinary proceeding related to a crime of violence or a nonforcible sex offense.  FERPA further states that it does not prohibit the disclosure of the final results of such a disciplinary proceeding if the institution finds the student violated its rules or policies with respect to the crime or offense, but the disclosure may generally only include only the student’s name and violation.  20 U.S.C. § 1232g(b)(6).  These provisions of FERPA generally apply to any postsecondary educational institution that receives federal funds, but when the institution is public, it must also comply with state public records laws.

In a recent case, news organizations sued certain officials of a North Carolina University (the “University”) for alleged violations of North Carolina’s Public Records Act. The plaintiffs requested copies of records related to “a person having been found responsible for rape, sexual assault or any related or lesser included sexual misconduct. . .”  The University denied the request on the grounds the records were protected by FERPA.

The plaintiffs changed the request to include only the names of students found responsible, the nature and date of the violations, and the imposed sanctions.  The University again denied the request.

The plaintiffs sued, seeking production of the records, a declaration the records were public records under North Carolina law, and the right to inspect and copy the records.

The defendants argued the disclosure was prohibited by FERPA and would interfere with its Title IX process.  They further argued disclosure would discourage victims from coming forward, deter witness participation, and jeopardize the safety of students found responsible.

The trial court denied the request, finding the Public Records Act did not require the release of records if the law provides an exception.  The trial court noted 20 U.S.C. § 1232(b)(6) gives the University discretion to disclose the specified information.  The trial court also found FERPA preempted any North Carolina disclosure requirement.

The plaintiffs appealed.  The appeals court found in favor of the plaintiffs, and the defendants appealed to the North Carolina Supreme Court.

The North Carolina Supreme Court agreed with the appeals court and held that the FERPA statute “did not grant implied discretion . . . in absence of language expressly granting such discretion.”  The North Carolina Supreme Court found no conflict between the Public Records Act and FERPA.  It noted, that although FERPA allows a postsecondary educational institution discretion, when the institution is a public university subject to a public records act, nothing in the relevant subsection is to “be construed to prohibit [the university] from disclosing the final results. . .” 20 U.S.C. § 1232g(b)(6)(B).

The defendants also argued FERPA preempts the Public Records Act.  The North Carolina Supreme Court stated conflict preemption exists when it is impossible to comply with both the state and federal law, or where the state law is an obstacle to Congress’s purposes and objectives.  The majority found no conflict between FERPA and the state Public Records Act under either theory.

The North Carolina Supreme Court further found that field preemption did not apply.  The court considered a Sixth Circuit opinion in a similar case involving the Ohio public records laws.  The North Carolina Supreme Court considered a Sixth Circuit case involving an Ohio public records law and found it showed that field preemption did not apply to this case.

The North Carolina Supreme Court found FERPA did not preempt the North Carolina Public Records Act to prohibit the University from disclosing the final results of the disciplinary proceedings the plaintiffs requested.

The North Carolina Supreme court held the University did not have the discretion to withhold the requested information and had to allow access to the student’s names, the violations, and the sanctions imposed as requested by the plaintiffs.

Justice Davis’s dissent in this case argues that the majority erred in considering state law in determining if FERPA confers discretion, when that determination should be made solely based on federal law.

The University has filed a petition for a writ of certiorari with the U.S. Supreme Court.  Although this is a North Carolina case, a U.S. Supreme Court decision on whether FERPA preempts state public records laws would have a nationwide impact.

If you are facing Title IX accusations, it is important to contact an experienced Washington Title IX attorney as soon as possible. FERPA allows disclosure of an accused student’s name only when there has been a determination the student violated rules or policies.  Blair & Kim, PLLC, can fight for you throughout the process. You can reach us at (206) 622-6562.

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