The long-awaited state budget is now law after Gov. Josh Stein signed it Tuesday, but some parts of the bill weren’t exactly financial in nature. The Protect Campus Survivors Act, targeting sexual misconduct records at state universities, started as a standalone bill last year and made a lot of noise but ultimately didn’t even get through committee.
Now, the controversial measure has been signed into law as part of the year-late budget, making it so the public records law plainly states any record of disciplinary proceedings at universities and community colleges that reveal “personally identifiable information” about a student are not subject to disclosure. It reverses a precedent set by the North Carolina Supreme Court in 2020.
Prior to Stein signing the budget, anyone could request a list of students found responsible for sexual misconduct on North Carolina’s public postsecondary campuses, which would include the name of the student found responsible, but not the student who filed the complaint, and a date and general description of the incident, such as “sexual penetration without consent,” for example.
The budget provision now shields those names and other identifying information, like student identification numbers. But it does permit “aggregated data, guidelines, instructions, or summaries” to be disclosed, which was not part of the original Protect Campus Survivors Act filed last year.
“This allows for the release of information that somebody may want in knowing whether or not the campus is safe, and how many of these cases they have on campus, while also protecting survivors’ identities,” said Skye David, a lobbyist and staff attorney at North Carolina Coalition Against Sexual Assault. “That’s a really important balance to strike.”
But even with that, others say the change further chips away at the state’s public records law and adds a cloak of secrecy over cases that would otherwise be considered criminal, and therefore public, if they weren’t being handled by universities.
“Providing North Carolina universities with yet another exemption to the public records law further erodes the public’s broad right of access and allows universities to discipline students — some accused of criminal misconduct — in darkness,” Pate McMichael, director of the North Carolina Open Government Coalition, told Carolina Public Press.
“North Carolina now joins many other states around the country in choosing secrecy and privacy over transparency and justice.”
The statutory change is the result of a years-long effort to reverse the results of the legal precedent set by the North Carolina Supreme Court in the Daily Tar Heel Media Corp. v. Folt case.
The independent, student-run newspaper sued former UNC-Chapel Hill chancellor Carol Folt and senior director of public records Gavin Young for refusing to release disciplinary records of students who had violated the university’s sexual assault policy. The university said the records were protected under the Family Educational Rights and Privacy Act, or FERPA, but in 2020 the court disagreed and found the university must release them.
Media law attorney Hugh Stevens helped lead the Daily Tar Heel to victory in the lawsuit. The case allowed the plaintiffs, and the general public, to get at least basic information about students who had been found responsible for serious sexual misconduct — but clearly the university wasn’t satisfied with that outcome, he said.
“I’m disappointed, but I’m not the least bit surprised that they’ve tried to essentially overturn the result by legislation, because it was clear that they didn’t care for the result,” Stevens told CPP.
“So this is their response, to get legislators to put something in the budget that seems obscure to most people, but which accomplishes their goal, which is to essentially reverse the outcome in the Folt case. … It’s consistent with the university’s long history of trying to cover up, or at least hide from public view, proceedings like this. They don’t like the publicity that goes with it. They don’t like to acknowledge that sometimes even UNC students commit very serious offenses.”
David worked with CASA and anti-domestic violence activists to support UNC-Chapel Hill in the case in hopes of keeping the records sealed. Soon after the court issued its ruling and the U.S. Supreme Court declined to take up the case, David began going to lawmakers in hopes of undoing the decision.
It was a five-year long effort, partially because it’s an uncomfortable issue for lawmakers to talk about, she said. Backing the bill could also come with political implications, which she thinks could have played a role in why it didn’t get more support last year.
“I don’t have direct information as to why (it didn’t pass), other than I could foresee a situation where someone would use it against someone politically — saying, you know, ‘You protect rapists’ or something like that,” she told CPP. “I could see that happening, just to be pretty frank with you.”
David knows most people might assume her camp would be on the opposite side of the issue because they think the records being public equals accountability.
But to David, it takes power away from survivors who may not have wanted details publicized, even if they aren’t named directly. If identifiable details of a person found responsible for sexual misconduct are released, that could inadvertently reveal the identity of the survivor that reported it, she said.
“Let’s say there is someone with a high profile who maybe was dating a girl for three months, and then this information comes out. It has them as the respondent and a time period. Well, your family members might see that in the paper and say, ‘Wait, wasn’t this when you were with that person?’ Or your friends might say, ‘Wasn’t this you?’” David said.
“Or maybe there’s public information, you know, pictures online of you and that person together during that time. And particularly if they’re higher profile, that then flips into retaliation, and students kind of bullying other students. In turn, that then silences a victim down the line who doesn’t want that to happen to them, what they just saw happen to somebody else.”
Alternatively, the records being accessible could show universities take accountability seriously by demonstrating they are doing their due diligence in the investigation and disciplinary process, as records would also show the outcome of misconduct cases, Stevens said.
Sexual misconduct and public records
Stevens said he has never had a client in search of disciplinary records who was interested in identifying the person who reported sexual misconduct, rather it’s out of concern of what a university is doing to address the reports.
The public records law is already vague, using nondescript phrases like records disclosure must occur “as promptly as possible,” leading to long delays. It exempts the legislature entirely, thanks to a measure included in a 2023 budget bill. It could see more exemptions added in the near future.
A proposed Senate bill could shield details of compensation and name, image and likeness deals for student athletes despite no such exceptions in FERPA, to the dismay of free press advocates.
Stevens is “always concerned” about the state of access to public records in North Carolina, he said.
“(Chapter 132) tells you that things are supposed to be presumptively public, and that’s the way our courts have interpreted it over decades,” he said. “But that doesn’t stop people from whittling away at it because they get some pet peeve or some concern, some of which are legitimate questions, but you have to be on your guard.”
This work is licensed under a Creative Commons Attribution-NoDerivatives 4.0 International License. You may republish our stories for free, online or in print. Simply copy and paste the article contents from the box below. Note, some images and interactive features may not be included here.
