Appellate court cites FIRE legal scholarship in reversing flawed FERPA ruling

By April 23, 2018

In a recent decision, the Court of Appeals of North Carolina rebuked the University of North Carolina at Chapel Hill’s use of the Family Educational Rights and Privacy Act to block a student newspaper’s open records request. The decision marks a victory for transparency in higher education by reversing a lower court ruling that allowed UNC to unduly shield its records from the public.

In handing down its ruling, the appellate court favorably cited “Baking Common Sense into the FERPA Cake: How to Meaningfully Protect Student Rights and the Public Interest” — an article I co-authored with FIRE’s Adam Goldstein, published in the Notre Dame Journal of Legislation. The court relied on our legal scholarship in holding that UNC had no right to reject the newspaper’s request because FERPA explicitly allows the university to disclose the requested records.

The main issue was whether FERPA, a federal statute requiring schools to protect the privacy of student educational records, conflicts with North Carolina’s open records law. UNC’s student newspaper, The Daily Tar Heel, requested records made “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.” The parties grappled over a FERPA exception allowing schools to disclose “the final results of any disciplinary proceeding … if the institution determines as a result of that disciplinary proceeding that the student committed a violation of the institution’s rules or policies with respect to such crime or offense.”

The court relied on our legal scholarship in holding that UNC had no right to reject the newspaper’s request because FERPA explicitly allows the university to disclose the requested records.  

The university argued, and the lower court ruled, that FERPA permitted but did not require the school to disclose such records — a grant of discretion that conflicts with and overrides state law mandating disclosure. FIRE joined the Student Press Law Center in criticizing the flawed logic of the decision, which the newspaper appealed to the state appellate court.

In reversing the lower court, the Court of Appeals of North Carolina found that FERPA’s plain language allows UNC to comply with both the federal statute and the state open records law. The court ruled that records exempt from FERPA must be disclosed by schools when properly requested, such as by judicial order, university procedures, or state open records laws, as in this case. Thus, UNC improperly hid behind FERPA in refusing the newspaper’s request.

FIRE is glad to see this court add to the wealth of precedent holding that FERPA does not override state open records laws. This decision should make universities think twice about deliberately misinterpreting FERPA to stonewall investigations into athletic scandals, corrupt admissions practices, abuses of taxpayer money and administrative power, and other controversies that have nothing to do with student privacy.

The decision is consistent with FERPA’s text and the overriding purpose of its passage: protecting student privacy and ensuring institutional accountability. When universities fail to properly construe the statute, it’s up to courts to vindicate these principles. FIRE is pleased to see the Court of Appeals of North Carolina get it right here.