Title IX Records Request: Carolina Responds

October 28, 2016

 

The University today responded to a request made by The Daily Tar Heel seeking sexual assault-related records and the names of those found responsible through a campus disciplinary process.

The request was sent to UNC-Chapel Hill administrators from DTH Editor-in-Chief, Jane Wester and Director/General Manager, Betsy O’Donovan, last month.

Vice Chancellor for Communications and Public Affairs Joel Curran responded to the DTH request, which had also been endorsed by a coalition of North Carolina media.

In light of the potential interest on this topic, the University is posting Curran’s response here.

 


 

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screen-shot-2016-10-28-at-2-05-38-pmOctober 28, 2016

 

Jane Wester, Editor
Betsy O’Donovan, Director/General Manager
The Daily Tar Heel
151 E. Rosemary Street
Chapel Hill, NC 27514

 

Dear Jane and Betsy:

I’m writing in response to The Daily Tar Heel’s September 30 request and Jane’s October 2 column (“We should know who’s found responsible for sexual assault”). The former seeks records “in connection with a person having been found responsible for rape, sexual assault or any related or lesser included sexual misconduct” by the Honor Court, the Committee on Student Conduct or the Equal Opportunity and Compliance Office. The latter said, “I badly want to know how many people my school has found responsible for sexual assault and what consequences those people are getting.”

On the one hand, I can understand a student journalist’s instinct to want to know the identity of a fellow student who has been through an adjudication process about an issue that’s so important on college campuses including Carolina. I also appreciate the interest in advocating for as much transparency as possible about the processes and policies that affect the lives of students so profoundly when it involves sexual assault and sexual misconduct.

However, the University must once again respectfully disagree with the DTH’s assertion that releasing the names of students “found responsible” in these cases constitutes a “public service.” Rather, we’re firmly convinced that such disclosures would have quite the opposite – and devastating – impact on victims, as well as the campus community. Our point of view is directed by federal privacy law, the Family Educational Rights and Privacy Act (FERPA), and informed by many opinions (some of which the DTH has reported; for example, “Survivors say releasing records on campus sexual assault is a delicate balance”) held by victims, witnesses, investigators, counselors and others.

Although I’ve previously articulated the University’s position in two statements provided to the DTH since September 30th, for the benefit of those who signed on to your request and for the record, following is a summary with some additional context:

  • Like all campuses nationwide, Carolina has a legal and ethical responsibility to protect the privacy rights and educational records of all students. FERPA protects all education records from disclosure; courts have found that student conduct investigations that fall within Title IX are education records. Title IX investigation records are protected from disclosure by FERPA. In addition, FERPA permits, but doesn’t compel universities to disclose the name of a student, the violation committed, and the sanction imposed if the student is found to have violated rules or policies for a violent crime or forcible sex offense. Among leading public and private universities that are Carolina’s peer campuses, we’re not aware of any others that have publicly disclosed the names of students found responsible in these cases under this exception to FERPA. Furthermore, we’re not aware of any institutions that have a policy of always disclosing identities and offenses under the FERPA exception. We don’t believe Carolina students should be subject to different standards than their peers on other campuses nationwide.
  • Carolina spent the last several years taking a comprehensive look at how our campus approaches all aspects of sexual assault and sexual misconduct. Those changes and the resources available to students have been well documented on our website, http://safe.unc.edu/. Paramount to those efforts is providing a private process in which victims can file reports, request accommodations, and receive compassionate care.
  • Releasing names of those found responsible in sexual assault or misconduct cases will inevitably lead to disclosures about the identity of victims who put their trust in the University’s process and don’t want their identities revealed or discovered for any reason. It also could compel individuals found responsible to publicly air concerns in a manner that’s at odds with the University’s desire to preserve the confidentiality and reputational interests of everyone who is involved in a case. The potential for public disclosure also threatens to severely undermine the University’s efforts to encourage individuals to report these cases and would have a chilling effect on their participation in the Title IX process. There is the real risk that disclosure would re-traumatize victims who already decided it’s in their own best interest to put a sexual assault incident behind them. We found it interesting that an October 25 DTH story, “Survivors have many options in reporting sexual assault,” included this sentence: “Other reasons for initiating the investigation from the school and not the police was because she wanted to keep her privacy and thought the school’s investigation could result in a more helpful outcome of other survivors of sexual assault.”
  • The Equal Opportunity and Compliance Office reports a 52 percent increase in formal investigations of sexual assault and a 156 percent increase in requests for accommodations, resources and other support between 2013-14 and 2014-15. (For context, visit http://www.unc.edu/campus-updates/message-chancellor-folt-difficult-important-topic/.) Those increases in reports followed the policy changes and expansive efforts to communicate with students about streamlined processes and the availability of more support services. We’re concerned that the disclosures you seek would erode the confidentiality of the process and negatively affect students’ willingness to report in the future.
  • We’re also concerned about the impact that reporting names could have in jeopardizing the privacy rights of others, including the witnesses who play vital roles in Title IX investigations, as well as the accused.
  • Universities are not courts of criminal law – where the accused has an absolute right to counsel regardless of their ability to pay for legal services, crimes must be proven by proof beyond a reasonable doubt, and the names of people found guilty of crimes are a matter of public record. Campuses must follow different laws at the federal and state levels regarding the standard of evidence for evaluating reports and protecting students’ privacy rights. The federal government requires campuses to run their own Title IX processes and to use a preponderance of the evidence – meaning more likely than not – standard. The University has a compelling interest to ensure that its process is as effective as possible in serving the campus community. And that point leads back to our concern about the fact that the inevitable disclosure of victims’ names will erode trust in the entire process.

Carolina is committed to providing as much information as we can about issues that affect the health and safety of our students, faculty and staff. However, as noted above, federal privacy law requires the University to protect the educational records of students (beyond basic public directory information) and consider the well-being of the campus community. The University collects and discloses a great deal of information about crimes committed on or near campus, including those involving sexual assault. That publicly available information includes incident reports created by our Department of Public Safety when investigating potential crimes, as well as the summary statistics that appear in the annual security report and a new report produced for the first time last April by the Equal Opportunity and Compliance Office (EOC).

The annual security report is available here with additional context about the federal requirements to report crime data under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act. Those data now include reports required by the Violence Against Women Reauthorization Act.

The EOC’s first annual report for 2014-2015 includes a section called “Reports” that summarizes the number of formal investigations and allegations about prohibited conduct, including interpersonal violence, sex discrimination, sexual assault, sexual harassment, or stalking. The accompanying charts provide totals and the number of outcomes, policy violations, and voluntary resolutions. Of 18 allegations of misconduct, 11 resulted in findings of policy violations or voluntary resolutions. Where policy violations were found for reports of Title IX violations and related misconduct, the report noted that the following sanctions and corrective actions were issued to students, often in combination, including: expulsion, indefinite suspension, probation, orders of no-contact, behavior management counseling, community service, written apology, and housing restrictions. Consistent with University practice, the report did not disaggregate violation or sanction information any further to prevent identifying individuals.

Finally, the University has previously fully complied with its responsibilities under federal and state laws to disclose public information and public records on this topic. There’s a wealth of information about the University’s public records policy and how we respond to requests for public records that we can provide at http://publicrecords.unc.edu.

 

Best,

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cc:  Chancellor Carol L. Folt
Vice Chancellor Mark Merritt
Vice Chancellor Felicia A. Washington
Associate Vice Chancellor Becci Menghini
Vice Chancellor Winston Crisp
Director of Student Conduct Aisha Pridgen
Senior Director of Public Records Gavin Young
Rick Gall, WRAL-TV
Aysu Basaran, WRAL-TV
Randall Kerr, WRAL-TV
Rick Thames, The Charlotte Observer
Adam Weinstein, Fusion
Bob Ashley, The Durham Herald-Sun
Susan Harper, Indy Week
Jeffrey Billman, Indy Week
John Drescher, The News & Observer
Steven Doyle, The Greensboro News & Record
Brent Wolfe, WUNC-FM
Greg Collard, WFAE
Roxann Elliott, The Student Press Law Center