Court sides with university on closing discipline hearings

Wednesday, February 18, 1998


A student judiciary body at the University of North Carolina can close its disciplinary hearings and keep a campus newspaper out, the North Carolina Court of Appeals ruled recently.


The Daily Tar Heel, a campus newspaper, petitioned the Undergraduate Court to attend the disciplinary hearings of two students accused of removing 1,500 copies of the Carolina Review, a student magazine, from news racks on February 13, 1996.


After the newspaper was denied entry, it sued the university and the Undergraduate Court for access. One trial judge refused to continue a temporary restraining order in April 1996, and another trial judge denied the paper’s request in December 1996.


The trial judge determined that the Undergraduate Court was a “public body” under the North Carolina Open Meetings Law, but held that the disciplinary proceeding could be closed in order to avoid violating the Family Educational and Privacy Act.


FERPA authorizes the government to withhold federal funds from universities that disclose students’ “education records” without the consent of the student or in some cases the student’s parents.


The North Carolina Court of Appeals did rule that the Undergraduate Court was “a public body” for purposes of the state open meetings law.


However, the appeals court agreed with the trial court that “the Undergraduate Court was entitled to hold a closed session to prevent the disclosure of education records protected by FERPA.” The court relied on a stipulation, or agreement, between the parties that “it is impossible to hold a student disciplinary hearing without divulging student records as defined under FERPA or personally identifiable information contained therein.”


The court also rejected the newspaper’s claims that both (1) the open courts provision of the state constitution and (2) the First Amendment mandated that the student body’s hearing be open.


The North Carolina open courts provision provides: “Courts shall be open. All courts shall be open; every person for an injury done him in his lands, goods, person, or reputation shall have remedy by due course of law; and right and justice shall be administered without favor, denial or delay.”


The appeals court rejected this argument, finding that “the Undergraduate Court is not a ‘court’ under the open courts provision” and “functionally does not wield the power of the State as does a court in the General Court of Justice.”


The court next rejected the First Amendment argument as well, writing: “The United States Supreme Court has held that the First Amendment provides the public with a presumptive right to attend certain criminal proceedings but the Court has yet decided whether this right extends to civil proceedings.”


Hugh Stevens, attorney for The Daily Tar Heel, told the First Amendment Center: “The real issue seems to be whether the federal law, the so-called FERPA, requires that these proceedings be closed. The court’s rejection of the open courts and First Amendment arguments were ancillary points. Again, the key issue is what’s the reach of FERPA. The university takes the position if it has anything to do with a student, it’s covered by FERPA.”


Stevens explained: “These student courts have begun to hear a lot of cases that don’t have any direct connection to the educational aspects of the school. In recent years, these courts have heard drug cases, rape cases, vandalism cases—all cases that do not relate to a student’s academic performance.


“Academic offenses would be covered under FERPA. Anti-social cases, would be criminal proceedings, are not covered by FERPA. I don’t see how you can stretch FERPA to cover a case like this,” he said.


“The real reason and need for access is to determine whether these student courts afford due process rights and administer justice properly.”


Stevens indicated that an appeal in DTH Publishing Corporation v. The University of North Carolina is “under serious consideration.”


Commentary
Privacy not at stake in campus-crime records — safety is

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