UNC won’t share athlete’s sexual misconduct records. NC bill may keep them secret
In 2020, the North Carolina Supreme Court ruled that UNC-Chapel Hill was required to release the disciplinary records of students found responsible for sexual misconduct on campus, if such information was requested by the media or the public.
The justices required the university to provide the name of the student who was investigated, the violations they committed and any sanctions imposed by the university on the student for their actions.
Five years later, UNC appears to be flouting the ruling.
The News & Observer exclusively reported Thursday that basketball player Zayden High filmed a fellow UNC student without her consent during a sexual encounter last year — an offense that a university investigation found was in violation of the campus policy on sexual exploitation.
In the reporting process, The N&O sought from UNC “all publicly releasable information” about the investigation into High, which was conducted by officials in the university’s Equal Opportunity and Compliance Office.
University officials denied The N&O’s request, citing the state public records act and the Federal Educational Rights and Privacy Act, or FERPA. The university indicated in a statement that it believes its denial complies with the 2020 ruling.
“We fully comply with federal privacy law and the 2020 North Carolina Supreme Court case DTH vs. Folt when sharing information about whether any student is subject to an academic or disciplinary process,” the statement read. (Former UNC Chancellor Carol Folt was a defendant in the case.)
The N&O was able to confirm High’s identity and misconduct through interviews with the student he filmed and five other people with knowledge of the case, as well as key documentation from the investigation, provided by the student’s lawyer.
But High’s disciplinary records are, in fact, likely subject to the Supreme Court’s ruling, according to the lead lawyer who represented the Daily Tar Heel and the other outlets during the court proceedings.
Hugh Stevens called the university’s response to The N&O’s request for High’s disciplinary documents “ridiculous.”
“That doesn’t make any sense,” Stevens said. “If you say you’re compliant, but you don’t provide the information, then you’re not complying.”
Now, though, legislation being considered in the General Assembly could prevent disciplinary records similar to High’s from being made available to the public at all — a proposal that is raising concerns about transparency, but that advocates for survivors of sexual violence say would offer welcome protection.
Supreme Court ruling requires UNC to release records
Four media outlets in 2016 filed a request with UNC for records related to students found responsible for sexual misconduct: The Daily Tar Heel; Capitol Broadcasting, which owns WRAL; the Charlotte Observer and the Durham Herald-Sun — both papers that are part of McClatchy and are sister publications to The N&O.
The outlets specifically sought “copies of all public records made or received by [UNC] in connection with a person having been found responsible for rape, sexual assault or any related or lesser included sexual misconduct by [UNC’s] Honor Court, the Committee on Student Conduct, or the Equal Opportunity and Compliance Office,” per court documents.
“The Daily Tar Heel felt it was important to find out how many students had been found culpable for these felony-level sexual matters and what kind of punishments had been administered to them,” Stevens said.
UNC initially denied the outlets’ request, asserting the records they sought “were ‘educational records’ as defined by FERPA and were thus ‘protected from disclosure by FERPA.’”
The state Supreme Court, upholding a ruling from the Court of Appeals, in May 2020 ruled that FERPA did not prevent UNC from releasing the records and that the documents are “subject to mandatory disclosure.”
According to The N&O’s recent reporting, the university investigation into High, conducted by the EOC office, found him responsible for violating UNC’s policy on “Prohibited Discrimination, Harassment and Related Misconduct” — the very policy that is referenced in the Supreme Court’s decision.
The N&O also confirmed the sanctions the university imposed upon High, which included an “indefinite” suspension of at least one semester and an additional, “indefinite” probation period of at least one semester. High was also required to complete an approved course on consent and sexual exploitation and permanently delete any recordings he had of the student he filmed.
Stevens said he believed such information “is exactly what the university should have released about” the case against High.
In its request to the university for High’s disciplinary records, The N&O specifically cited the 2020 ruling.
The university did not explain why High’s records would not be subject to disclosure under the ruling in its statement to The N&O or in its denial of the paper’s request for the documents.
‘Protect Campus Survivors Act’
But soon, the university — and all other public colleges in North Carolina — might no longer be subject to the 2020 ruling at all.
State lawmakers this legislative session are considering the “Protect Campus Survivors Act,” originally filed as Senate Bill 195 and since added to the Senate’s budget bill, which passed the chamber last month.
Under the bill, “personally identifiable student disciplinary records” would be deemed confidential and not subject to disclosure as public records. “Personally identifiable” information is defined in the bill as including students’ names, the names of their parents or other family members and any information that would allow someone “who does not have personal knowledge of the relevant circumstances, to identify the student with reasonable certainty,” among other points.
Public universities and community colleges in the state would not be able to provide the media or the public with such information relating to either the perpetrators of sexual misconduct or the survivors of the acts.
The schools could still release records related to student discipline if they did not include “personally identifiable” information. For instance, while the schools would not be allowed to share the names of the perpetrators, they could share the nature of the violations they committed and the sanctions imposed in response to the acts.
The North Carolina Coalition Against Sexual Assault supports the legislative proposal and has been pushing it with lawmakers, coalition staff attorney Skye David told The N&O. David also represented the student whom High filmed without consent last year. (The N&O is not naming the student, at her request and in keeping with its typical practice of not making public the names of victims of sexual misconduct.)
David said she understands that “from the outside looking in,” the proposed legislation could be concerning, given that some may view it as protecting the perpetrators of sexual misconduct.
But “that’s not the case at all,” she argued.
Instead, in David’s view, the bill would protect survivors from being inadvertently identified through the release of information about perpetrators.
Weighing transparency and protection
For instance, if a survivor’s friends or family know they have been in a relationship with a perpetrator of sexual misconduct who is subsequently identified through the release of disciplinary records, such information becoming public could “out” the survivor, David said.
When a perpetrator is of a “higher profile” than the survivor — in cases where a university athlete is the perpetrator, for instance — the possibility of a survivor being “outed” can rise, David said.
“It could result in retaliation, or making folks not want to report, in fear that later this could come out in the media and people will be able to figure out who they are,” David said.
The information being made public sometimes also “brings up some past trauma” for survivors, David said.
Still, Stevens raised concerns about the proposal. In his view, such information being available helps shed light on the university’s process of investigating sexual misconduct.
For cases in which accusations are proven, he said, “You have this situation in which one student has severely harmed another by some sort of sexual assault or sexual misbehavior, and yet it’s all handled under this cloak of near total secrecy.”
Stevens worries that the bill would make it more difficult for students — and the public — to know who on college campuses has committed acts of sexual violence or other misconduct.
“As a person who has fought long and hard for transparency in public records, I think that’s just a bad policy,” Stevens said.
David noted that survivors or their attorneys could also choose to share the documents themselves.
“If a survivor wants to tell their story — they want to be in the public eye, they want to share what’s happened to them — that’s their choice,” David said. “But I think the big distinction is making it the survivor’s choice instead of someone else’s choice, because after sexual violence, some of that autonomy has been taken away from you.”
David said, in her opinion, the legislation becoming law remains a “long shot.”
The House plans to pass its own budget bill by the end of May. The two chambers will then negotiate a final budget, which could be approved by June 30 but often takes much longer.
