The opinion
IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-871
Filed: 17 April 2018
Wake County, No. 16 CVS 14300
DTH MEDIA CORPORATION; CAPITAL BROADCASTING COMPANY, INC.; THE
CHARLOTTE OBSERVER PUBLISHING COMPANY; THE DURHAM HERALD
COMPANY; Plaintiffs,
v.
CAROL L. FOLT, in her official capacity as Chancellor of the University of North
Carolina at Chapel Hill, and GAVIN YOUNG, in his official capacity as Senior
Director of Public Records for the University of North Carolina at Chapel Hill,
Defendants.
Appeal by plaintiffs from order entered 9 May 2017 by Judge Allen Baddour in
Wake County Superior Court. Heard in the Court of Appeals 20 March 2018.
Stevens Martin Vaughn & Tadych, PLLC, by Hugh Stevens, for plaintiff-
appellants.
Attorney General Joshua H. Stein, by Special Deputy Attorney General
Stephanie A. Brennan, for defendant-appellees.
Engstrom Law, PLLC, by Elliot Engstrom, for Student Press Law Center,
amicus curiae.
TYSON, Judge.
I. Background
This Court reviews the federal Family Educational Rights and Privacy Act, 20
U.S.C. § 1232g (2017) (“FERPA”), and the North Carolina Public Records Act, N.C.
Gen. Stat. §§ 132-1 to -11 (2017) (the “Public Records Act”), to determine whether
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officials of The University of North Carolina at Chapel Hill (“UNC-CH”) are required
to release students’ disciplinary records, who have been found to have violated UNC-
CH’s sexual assault policy. The following facts were stipulated to by the parties and
adopted by the trial court.
DTH Media Corporation; Capitol Broadcasting Company, Inc.; The Charlotte
Observer Publishing Company; and, The Durham Herald Company (collectively,
“Plaintiffs”), are North Carolina-based news organizations, which regularly cover
events at UNC-CH. The defendants are Carol L. Folt, the Chancellor of UNC-CH,
and Gavin Young, the Senior Director of Public Records of UNC-CH (collectively,
“Defendants”), who are being sued in their official capacities.
Plaintiffs sent a public records request to UNC-CH in a letter dated 30
September 2016, asking for “copies of all public records made or received by [UNC-
CH] in connection with a person having been found responsible for rape, sexual
assault or any related or lesser included sexual misconduct by [UNC-CH’s] Honor
Court, the Committee on Student Conduct, or the Equal Opportunity and Compliance
Office.”
UNC-CH denied Plaintiffs’ request on 28 October 2016 in a letter signed by
Joel G. Curran, UNC-CH’s Vice-Chancellor for Communications and Public Affairs.
Vice-Chancellor Curran concluded the records requested by Plaintiffs are
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“educational records” as defined by FERPA and are “protected from disclosure by
FERPA.”
After denial of their request, Plaintiffs filed a complaint and petitioned for an
order to show cause against Defendants on 21 November 2016, under the Public
Records Act, and the North Carolina Declaratory Judgments Act, N.C. Gen. Stat. §§
1-253 to -267. Plaintiffs sought, in part: (1) a preliminary order compelling
Defendants to appear and produce the records at issue; (2) an order declaring that
the requested records are public records as defined by N.C. Gen. Stat. § 132-1; (3) an
order compelling Defendants to permit the inspection and copying of public records
pursuant to N.C. Gen. Stat. § 132-9(a).
On 21 December 2016, Defendants filed their answer to Plaintiffs’ complaint
and petition. Following subsequent communications between the parties, including
a mediation conducted pursuant to N.C. Gen. Stat. § 78-38.3E, Plaintiffs narrowed
the scope of their request to encompass records in the custody of UNC-CH and limited
to: “(a) the name of any person who, since January 1, 2007, has been found responsible
for rape, sexual assault or any related or lesser included sexual misconduct by the
[UNC-CH] Honor Court, the Committee on Student Conduct, or the Equal
Opportunity and Compliance Office; (b) the date and nature of each violation for
which each such person was found responsible; and (c) the sanctions imposed on each
such person for each such violation.” Defendants stipulated that UNC-CH retains
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the records sought by Plaintiffs in their narrowed request. The matter was heard in
Wake County Superior Court on 6 April 2017. On 9 May 2017, the trial court entered
an order and final judgment denying Plaintiffs’ request, as it related to students who
had been found responsible for serious sexual misconduct. The court granted
Plaintiffs’ request for records related to UNC-CH employees, who had been
disciplined for such offenses.
The trial court’s order and final judgment concluded the Public Records Act
does not compel release of student records where “otherwise specifically provided by
law.” The trial court concluded FERPA “otherwise specifically provides” and grants
UNC-CH “discretion to determine whether to release (1) the name of any student
found ‘responsible’ under [UNC-CH’s] policy for a ‘crime of violence’ or ‘nonforcible
sex offense,’ (2) the violation, and (3) the sanction imposed.” Plaintiffs timely filed
notice of appeal from the trial court’s order and final judgment.
Defendants complied with that portion of the trial court’s order and final
judgment relating to records regarding UNC-CH’s employees, and both parties agree
UNC-CH employees’ records addressed in the order and judgment are not at issue on
appeal.
II. Jurisdiction
Jurisdiction lies in this court over appeal of a final judgment of the superior
court in a civil case. N.C. Gen. Stat. § 7A-27(b)(1) (2017).
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III. Issue
Plaintiffs argue their public record’s request for the disciplinary information of
UNC-CH students falls within an exemption to FERPA’s non-disclosure provisions
and Defendants are required to comply with their Public Records Act request.
IV. Standard of Review
“Questions of statutory interpretation are questions of law, which are
reviewed de novo by an appellate court.” In re Proposed Assessments v. Jefferson-Pilot
Life Ins. Co., 161 N.C. App. 558, 559, 589 S.E.2d 179, 180 (2003) (citation omitted).
This appeal involves questions regarding the interpretation of FERPA and the Public
Records Act. We review de novo.
V. Analysis
A. North Carolina Public Records Act
The Public Records Act is codified at N.C. Gen. Stat. §§ 132-1 to -11 (2017).
The public policy underlying the Public Records Act is enunciated by the General
Assembly at N.C. Gen. Stat. § 132-1(b), which provides, “The public records and
public information compiled by the agencies of North Carolina government or its
subdivisions are the property of the people. Therefore, it is the policy of this State
that the people may obtain copies of their public records and public information free
or at minimal cost[.]”
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The Public Records Act “affords the public a broad right of access to records in
the possession of public agencies and their officials.” Times-News Publ’g Co. v. State
of N.C., 124 N.C. App. 175, 177, 476 S.E.2d 450, 451-52 (1996), disc. review denied,
345 N.C. 645, 483 S.E.2d 717 (1997). “[T]he purpose of the Public Records Act is to
grant liberal access to documents that meet the general definition of ‘public
records[.]’” Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 352,
768 S.E.2d 23, 24 (2014).
The Public Records Act defines “public records” to include “all . . . material,
regardless of physical form or characteristics, made or received pursuant to law or
ordinance in connection with the transaction of public business by any agency of
North Carolina government or its subdivisions.” N.C. Gen. Stat. § 132-1(a).
The Public Records Act permits public access to all public records in an
agency’s possession “unless either the agency or the record is specifically exempted
from the statute’s mandate.” Times-News, 124 N.C. App. at 177, 476 S.E.2d at
452 (emphasis supplied). “Exceptions and exemptions to the Public Records Act must
be construed narrowly.” Carter-Hubbard Publ’g Co., Inc. v. WRMC Hosp. Operating
Corp., 178 N.C. App. 621, 624, 633 S.E.2d 682, 684 (2006) (citation omitted), aff’d,
361 N.C. 233, 641 S.E.2d 301 (2007).
Here, the trial court correctly determined that the UNC-CH student
disciplinary records requested by Plaintiffs are “public records” as defined by the
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Public Records Act at N.C. Gen. Stat. § 132-1(b). Neither party contests the trial
court’s determination and conclusion that the records at issue are “public records”
under the Public Records Act. Also, neither party disputes that UNC-CH is a public
agency of North Carolina and is subject to the Public Records Act. See N.C. Gen. Stat.
§ 132-1(b).
B. Family Educational Rights and Privacy Act
The Congress of the United States enacted FERPA in 1974 “under its spending
power to condition the receipt of federal funds on certain requirements relating to the
access and disclosure of student educational records.” Gonzaga Univ. v. Doe, 536 U.S.
273, 278, 153 L.Ed.2d 309, 318 (2002). “The Act directs the Secretary of Education to
withhold federal funds from any public or private ‘educational agency or institution’
that fails to comply with these conditions.” Id. FERPA provides, in part, that:
No funds shall be made available under any applicable
program to any educational agency or institution which
has a policy or practice of permitting the release of
education records (or personally identifiable information
contained therein . . .) of students without the written
consent of their parents to any individual, agency, or
organization. . . .
20 U.S.C. § 1232g(b)(1).
FERPA defines “education records” as “those records, files, documents, and
other materials which—(i) contain information directly related to a student; and (ii)
are maintained by an educational agency or institution or by a person acting for such
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agency or institution.” 20 U.S.C. § 1232g(a)(4)(A); see also 34 C.F.R. § 99.3 (specifying
definition of “education records” under FERPA). Plaintiffs and Defendants concede
that UNC-CH receives federal funding and is generally subject to FERPA.
The parties also do not dispute the records Plaintiffs requested are
“educational records.” Twenty years ago with similar parties, this Court recognized
that student disciplinary records are “educational records” for purposes of FERPA.
DTH Publ’g Corp. v. UNC-Chapel Hill, 128 N.C. App. 534, 541, 496 S.E.2d 8, 13, disc.
review denied, 348 N.C. 496, 510 S.E.2d 382 (1998); see United States v. Miami Univ.,
294 F.3d 797, 812 (6th Cir. 2002) (“[S]tudent disciplinary records are education
records because they directly relate to a student and are kept by that student’s
university.”).
FERPA permits the release of certain student disciplinary records in several
situations. FERPA expressly exempts and does not prohibit disclosure “to an alleged
victim of any crime of violence . . . or a nonforcible sex offense, the final results of any
disciplinary proceeding conducted by the institution against the alleged perpetrator
. . . .” 20 U.S.C. § 1232g(b)(6)(A). Most relevant here is another exemption of FERPA,
which allows an educational institution to release “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.” 20 U.S.C. § 1232g(b)(6)(B).
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Plaintiffs assert: (1) this express exemption removes their request for
disclosure from exclusion under FERPA’s sanctions; (2) FERPA does not prohibit
Defendants from complying with their request; and, (3) as a result, the express intent
of the Public Records Act requires Defendants to comply with Plaintiffs’ request.
Defendants contend § 1232g(b)(6)(B) of FERPA impliedly grants and requires
educational institutions to exercise discretion when deciding whether to release the
student disciplinary records admittedly exempted from FERPA’s non-disclosure
provisions. They argue the binding Public Records Act conflicts with § 1232g(b)(6)(B)
by removing the institution’s discretion to decide whether to release the exempted
records. Defendants assert “the federal Family Educational Rights and Privacy Act
. . . governs the records at issue and precludes their release.” Defendants conclude
that to the extent the Public Records Act conflicts with FERPA’s implied grant of
discretion to UNC-CH, FERPA is supreme and pre-empts our Public Records Act, as
federal law. The trial court agreed with Defendants’ arguments.
C. Reconciling the Public Records Act and FERPA
1. Canons of Statutory Interpretation
To assess the parties’ arguments, we must first determine whether a conflict
exists between FERPA and the Public Records Act. In reviewing the relationship and
any overlapping coverages between FERPA and the Public Records Act, we are
guided by several well-established principles of statutory construction.
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“The principal goal of statutory construction is to accomplish the legislative
intent.” Lenox, Inc. v. Tolson, 353 N.C. 659, 664, 548 S.E.2d 513, 517 (2001) (citing
Polaroid Corp. v. Offerman, 349 N.C. 290, 297, 507 S.E.2d 284, 290 (1998)). “The best
indicia of that intent are the [plain] language of the statute . . ., the spirit of the act
and what the act seeks to accomplish.” Coastal Ready-Mix Concrete Co. v. Bd. of
Comm’rs, 299 N.C. 620, 629, 265 S.E.2d 379, 385 (1980) (citations omitted).
“When construing legislative provisions, this Court looks first to the plain
meaning of the words of the statute itself[.]” State v. Ward, 364 N.C. 157, 160, 694
S.E.2d 729, 731 (2010). “Interpretations that would create a conflict between two or
more statutes are to be avoided, and statutes should be reconciled with each other
whenever possible.” Taylor v. Robinson, 131 N.C. App. 337, 338, 508 S.E.2d 289, 291
(1998) (internal quotation marks and ellipses omitted) (citing Meyer v. Walls, 122
N.C. App. 507, 512, 471 S.E.2d 422, 426 (1996), aff’d in part, rev'd in part, 347 N.C.
97, 489 S.E.2d 880 (1997)).
“‘[S]tatutes in pari materia must be read in context with each other.’” News &
Observer Publ’g Co. v. Wake Cty. Hosp. System, Inc., 55 N.C. App. 1, 7, 284 S.E.2d
542, 546 (1981) (quoting Cedar Creek Enters. v. Dep’t of Motor Vehicles, 290 N.C. 450,
454, 226 S.E.2d 336, 338 (1976)). “‘In pari materia’ is defined as ‘[u]pon the same
matter or subject.’” Id. at 7-8, 284 S.E.2d at 546 (quoting Black’s Law Dictionary 898
(4th ed. 1968)).
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Here, the “plain language” of § 1232g(b)(6)(B) of FERPA states:
Nothing in this section shall be construed to prohibit an
institution of postsecondary education from disclosing 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.
Defendants argue, and the trial court agreed, that this language requires
UNC-CH to exercise discretion on whether to release the admittedly public records of
the final results of disciplinary hearings. Defendants have not cited any case law
interpreting FERPA to support their proposed interpretation of this provision.
Plaintiffs argue the plain language of the statute does not support Defendants’ and
the trial court’s interpretation.
Our comprehensive review of relevant case and statutory law from this and
other jurisdictions, both state and federal, fails to disclose any authority interpreting
FERPA’s § 1232g(b)(6)(B) as providing to public postsecondary educational
institutions an express absolute discretionary authority over whether to release
FERPA-exempted student disciplinary records and subject to disclosure under its
express terms.
The language “[n]othing . . . shall be construed to prohibit an institution . . .
from disclosing the final results of any disciplinary proceeding” does not indicate any
congressional intent to require educational institutions to exercise discretion over or
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before releasing FERPA-exempted student disciplinary records in contravention of
unambiguous and broad state public records laws expressly requiring such
disclosure. No language in § 1232g(b)(6)(B) or the corresponding Code of Federal
Regulations provisions speak to whether an educational institution must exercise
discretion over whether to disclose student disciplinary records. 20 U.S.C. §
1232g(b)(6)(B), 34 C.F.R. 99.31(a)(14). Defendants do not argue that the records
Plaintiffs requested are prohibited or exempted from disclosure, or cannot be
disclosed or released under § 1232g(b)(6)(B) without potential sanctions under
FERPA.
The only language in § 1232g(b)(6)(B) that concerns an educational
institution’s purported “discretion” is: “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.” 20 U.S.C. § 1232g(b)(6)(B)
(emphasis supplied). Plaintiffs’ records request is limited to students, who UNC-CH
has already expressly determined to have engaged in such misconduct, and the
records of which are expressly subject to disclosure under FERPA. 20 U.S.C. §
1232g(b)(6)(B).
UNC-CH’s process used to determine whether a student violated school policy
or crimes involves a completely different and separate determination from whether
the admittedly public records relating to the discipline previously imposed for the
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misconduct should be released. FERPA’s plain language in § 1232g(b)(6)(B) does not
condition an educational institution’s compliance on requiring the exercise of
discretion to determine whether to release disciplinary records that FERPA expressly
exempts from non-disclosure, in the face of a public records request.
Defendants’ assertion of an absolute authority to exercise discretion on
whether to release non-exempt records is undercut by other provisions of FERPA. §
1232g(b)(2)(B) provides:
(2) No funds shall be made available under any applicable
program to any educational agency or institution which
has a policy or practice of releasing, or providing access to,
any personally identifiable information in education
records other than directory information, or as is permitted
under paragraph (1) of this subsection, unless—
....
(B) except as provided in paragraph (1)(J), such
information is furnished in compliance with judicial order,
or pursuant to any lawfully issued subpoena, upon
condition that parents and the students are notified of all
such orders or subpoenas in advance of the compliance
therewith by the educational institution or agency . . . .
20 U.S.C. § 1232g(b)(2)(B) (emphasis supplied).
The regulations implementing this provision provide:
(a) An educational agency or institution may disclose
personally identifiable information from an education
record of a student without the consent required by § 99.30
if the disclosure meets one or more of the following
conditions:
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....
(9)(i) The disclosure is to comply with a judicial order or
lawfully issued subpoena.
34 C.F.R. 99.31(a)(9)(i) (emphasis supplied).
Defendants’ position that FERPA grants them absolute discretion to decide
whether to release exempt disciplinary records is contradicted by these provisions,
which do not prohibit an educational institution from complying with a judicial order.
§ 1232g(b)(2)(B) makes no distinction between a judicial order that requires disclosure
and an order that authorizes disclosure. If a court orders an educational institution
to release an exempt record, § 1232g(b)(2)(B) does not indicate the institution would
be in violation of FERPA by complying with a mandatory court order. 20 U.S.C. §
1232g(b)(2)(B); 34 C.F.R. 99.31(a)(9)(i).
However, we note that we do not interpret § 1232g(b)(2)(B) as granting a court
the authority to remove an education record’s non-disclosable status by ordering its
release. See Press-Citizen Co. v. Univ. of Iowa, 817 N.W.2d 480, 493 (Iowa 2012)
(stating that “[it] would make no sense to interpret the ‘judicial order’ exception” in a
way that would mean FERPA only has effect until a party requesting records obtains
a court order compelling release).
Interpreting § 1232g(b)(2)(B) and § 1232g(b)(6)(B) together indicates an
educational institution would not be subject to loss of funding or other sanction for
complying with a judicial order mandating disclosure of records that are exempt from
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FERPA’s protections. 20 U.S.C. § 1232g(b)(2)(B); § 1232g(b)(6)(B); see In re Hayes,
199 N.C. App. 69, 79, 681 S.E.2d 395, 401 (2009) (“Words and phrases of a statute are
to be construed as a part of the composite whole[.]”), disc. review denied, 363 N.C.
803, 690 S.E.2d 695 (2010).
2. Public Records Held by Public Agency
We decline to interpret FERPA as advocated by Defendants. Such an
interpretation conflicts with both the Public Records Act’s mandatory disclosure
requirements and the plain meaning of FERPA’s § 1232g(b)(6)(B), which allows
disclosure. See Taylor, 131 N.C. App. at 338, 508 S.E.2d at 291 (“Interpretations that
would create a conflict between two or more statutes are to be avoided, and statutes
should be reconciled with each other whenever possible.”).
The disciplinary records at issue are stipulated by the parties to be “public
records,” and held by a “public agency” subject to the Public Records Act and that §
1232g(b)(6)(B) exempts them from FERPA’s general non-disclosure of educational
records.
3. Limitations on Disclosure
Plaintiffs request:
(a) the name of any person who, since January 1, 2007, has
been found responsible for rape, sexual assault or any
related or lesser included sexual misconduct by the [UNC-
CH] Honor Court, the Committee on Student Conduct, or
the Equal Opportunity and Compliance Office; (b) the date
and nature of each violation for which each such person
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was found responsible; and (c) the sanctions imposed on
each such person for each such violation. (Emphasis
supplied).
FERPA only authorizes disclosure of “the name of the student, the violation
committed, and any sanction imposed by the institution on that student” from the
general rule of non-disclosure of disciplinary records. 20 U.S.C. § 1232g(b)(6)(B)
(emphasis supplied). The dates of offenses requested by Plaintiffs are not disclosable
under FERPA. See id.
N.C. Gen. Stat. § 132-1(b) provides that the public may obtain copies of public
records “unless otherwise specifically provided by law.” N.C. Gen. Stat. § 132-1(b)
(emphasis supplied). Because § 1232g(b)(6)(B) “otherwise specifically provide[s]” that
only the information listed therein is subject to disclosure, the dates of student
offenses are not subject to disclosure under the Public Records Act. See id.; 20 U.S.C.
§ 1232g(b)(6)(B).
No conflict exists between FERPA and the Public Records Act for UNC-CH to
release the public records within Plaintiffs’ limited and narrow requests. The express
terms of FERPA permit the disclosure of the information requested by Plaintiffs,
except for the dates of violations. See 20 U.S.C. § 1232g(b)(6)(B). Defendants concede
that if FERPA does not provide them the discretion to withhold what are admitted to
be public records, they are compelled to release the records.
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As qualified above, we hold Defendants, as administrators of a public agency,
are required to comply with Plaintiffs’ request to release the public records at issue
under the Public Records Act. FERPA’s § 1232g(b)(6)(B) does not prohibit
Defendants’ compliance, to the extent Plaintiffs’ request the names of the offenders,
the nature of each violation, and the sanctions imposed. Defendants’ arguments are
overruled.
D. Federal Pre-emption
Defendants also argue FERPA pre-empts the Public Records Act with respect
to the Public Records Act’s mandatory disclosure requirements. We disagree.
The Supremacy Clause of the Constitution of the United States provides that
the laws of the United States, the Constitution and treaties “shall be the supreme
Law of the Land.” U.S. Const. Art. VI, cl 2. “Congress may pre-empt, i.e., invalidate,
a state law through federal legislation” either expressly or implicitly. Oneok, Inc. v.
Learjet, Inc., __ U.S. __, __, 191 L. Ed. 2d 511, 517 (2015). “A reviewing court
confronting this question begins its analysis with a presumption against federal
preemption.” State ex rel. Utilities Comm’n v. Carolina Power & Light Co., 359 N.C.
516, 525, 614 S.E.2d 281, 287 (2005) (citing Hillsborough Cty. v. Automated Med.
Labs., Inc., 471 U.S. 707, 715, 85 L.Ed.2d 714, 722-23 (1985)).
The Congress of the United States may expressly pre-empt a state law “if the
federal law contains explicit pre-emptive language.” Salzer v. King Kong Zoo, 242
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N.C. App. 120, 123, 773 S.E.2d 548, 550 (2015) (internal quotation marks and
citations omitted). With respect to Plaintiffs’ public records request, FERPA does not
expressly pre-empt the Public Records Act, as neither § 1232g(b)(6)(B) nor any other
provision of FERPA contains explicit language stating it pre-empts state public
records laws. See id.
Defendants also argue UNC-CH is not required to comply with Plaintiffs’
public records request under the theory of federal “implicit pre-emption.” Implicit
pre-emption can occur through either “conflict” or “field” pre-emption. Id. at 123-24,
614 S.E.2d at 551. Field pre-emption occurs where Congress “intended to foreclose
any state regulation in the area, irrespective of whether state law is consistent with
federal standards.” Oneok, __ U.S. at __, 191 L. Ed. 2d at 511 (citation and quotation
marks omitted). “In such situations, Congress has forbidden the State to take action
in the field that the federal statute pre-empts.” Id. (emphasis omitted).
Field pre-emption occurs when the federal government either “completely
occupies a given field or an identifiable portion of it.” Pac. Gas & Elec. Co. v. State
Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 212-13, 75 L. Ed. 2d 752,
770 (1983) (citation omitted).
The intent to displace state law altogether can be inferred
from a framework of regulation so pervasive . . . that
Congress left no room for the States to supplement it or
where there is a federal interest . . . so dominant that the
federal system will be assumed to preclude enforcement of
state laws on the same subject.
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Arizona v. United States, 567 U.S. 387, 399, 183 L. Ed. 2d 351, 369 (2012) (internal
quotations and citations omitted). “Field pre-emption is wrought by a manifestation
of congressional intent to occupy an entire field such that even without a federal rule
on some particular matter within the field, state regulation on that matter is pre-
empted, leaving it untouched by either state or federal law.” Guyton v. FM Lending
Servs., Inc., 199 N.C. App. 30, 44, 681 S.E.2d 465, 476 (2009) (citation omitted).
Here, FERPA contains no manifestation of congressional intent to occupy the
field of public educational records and particularly those which are expressly
exempted from FERPA’s non-disclosure rules. The plain language of § 1232g(b)(6)(B)
does not manifest such an intent. In looking to congressional intent, the statements
from the Congressional Record of the U.S. Representative who introduced the
amendment that would be codified as § 1232g(b)(6)(B) of FERPA is salient and
compelling. The stated intent and purpose of § 1232g(b)(6)(B) is to:
[D]eal with the Family Educational Rights and Privacy Act
that was passed in 1974 that basically has allowed
universities, Federal[ly funded] universities, to withhold
the release of names of students found by disciplinary
proceedings to have committed crimes[.] I believe there
should be a balance between one student’s right of privacy
to another student’s right to know about a serious crime in
his or her college community. The Foley amendment to the
Higher Education Amendments Act of 1998 [P.L. 105-244]
provides a well-balanced solution to the problem. It would
remove the Federal protection that disciplinary records
enjoy and make reporting subject to the State laws that
apply.
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144 Cong. Rec. H2,984, (daily ed. May 7, 1998) (statement of sponsor Rep. Foley)
(emphasis supplied); see Zach Greenberg & Adam Goldstein, Baking Common Sense
into the FERPA Cake: How to Meaningfully Protect Student Rights and the Public
Interest, 44 J. Legis. 22, 26 (2017).
No indication from the text of § 1232g(b)(6)(B) nor within its legislative history
supports the contention that Congress intended to occupy the field of educational
records to such an extent that FERPA would pre-empt state public records laws with
respect to public educational records that are expressly exempted from FERPA’s
protections.
The legislative history shows Congress intended that records exempted from
FERPA under § 1232g(b)(6)(B) would be “subject to the State laws that apply.” 144
Cong. Rec. H2,984, (daily ed. May 7, 1998) (statement of sponsor Rep. Foley). This
intent is plainly inconsistent with “[t]he intent to displace state law.” Arizona, 567
U.S. at 399, 183 L. Ed. 2d at 369. FERPA does not pre-empt the Public Records Law
under the “field pre-emption” theory. See id.
Defendants also assert implied pre-emption under the “conflict pre-emption”
theory. Conflict pre-emption occurs in two circumstances: (1) “where compliance with
both state and federal law is impossible” and (2) “where the state law stands as an
obstacle to the accomplishment and execution of the full purposes and objectives of
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Opinion of the Court
Congress.” Oneok, __ U.S. at __, 191 L. Ed. 2d at 517 (internal quotation marks and
citation omitted).
With regard to the first type of conflict pre-emption, it is possible for UNC-CH
to comply with both § 1232g(b)(6)(B) and the Public Records Act. Whereas §
1232g(b)(6)(B) allows UNC-CH to disclose the records at issue without federal
sanction, the Public Records Act expressly requires the requested records to be
released. As discussed above, and contrary to Defendants’ assertion, FERPA does not
expressly or impliedly grant educational institutions the absolute discretion to decide
whether to release exempt educational records. See 20 U.S.C. § 1232g(b)(6)(B).
Defendants would not violate § 1232g(b)(6)(B) by disclosing and releasing the records
Plaintiffs requested in order to comply with the Public Records Act.
With regard to the second type of conflict pre-emption Defendants assert, the
Public Records Act disclosure requirements do not “stand[] as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.” See
Oneok, __ U.S. at __, 191 L. Ed. 2d at 517. The plain text of § 1232g(b)(6)(B) permits
Defendants disclosure of the limited information specifically listed therein. See 20
U.S.C. § 1232g(b)(6)(B). No indication in § 1232g(b)(6)(B) nor elsewhere in FERPA
supports the contention that Congress established the objective of barring public
records requests of information that it expressly exempted from FERPA’s non-
disclosure provisions.
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The legislative history of § 1232g(b)(6)(B) indicates Congress’ intent and
objective in amending FERPA was to strike “a balance” between students’ privacy
rights and other students’ and their parents’ rights to know about dangerous
individuals in campus communities. See 144 Cong. Rec. H2,984, (daily ed. May 7,
1998) (statement of Rep. Foley). Congress decided to strike this balance by
“remov[ing] the Federal protection that disciplinary records enjoy and make
reporting subject to the State laws that apply.” Id. Compelling Defendants’
compliance with the Public Records Act with regard to the limited and exempted
information Plaintiffs have requested does not “stand[] as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.”
Oneok, __ U.S. at __, 191 L. Ed. 2d at 517.
Defendants cite Fidelity Federal Savings and Loan Ass’n v. de la Cuesta, 458
U.S. 141, 73 L. Ed. 2d 664 (1982), to support their pre-emption arguments. Fidelity
Federal involved a regulation issued by the Federal Home Loan Bank Board
(“FHLBB”) that permitted federally-chartered savings and loan associations to
exercise due-on-sale clauses. 458 U.S. at 141, 73 L. Ed. 2d at 664. The preamble to
the regulation provided “that the due-on-sale practices of federal savings and loan
associations shall be governed ‘exclusively by Federal law’ and that the association
‘shall not be bound by or subject to any conflicting State law which imposes different
. . . due-on-sale requirements.’” Id. at 147, 73 L. Ed. 2d at 671. California law limited
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Opinion of the Court
mortgage lenders’ exercise of due-on-sale clauses. Id. at 148-49, 73 L. E. 2d at 672.
California homeowners sued Fidelity Federal Savings and Loan Association for
exercising the due-on-sale clauses in violation of California law. Id.
The Supreme Court of the United States determined the FHLBB’s regulation
pre-empted California law. Id. at 159, 73 L. Ed. 2d at 679. Defendants cite this case
for their proposition, “[w]here Congress legislates to define the discretion an
organization may exercise, that legislation preempts state law curtailing that
discretion.” Contrary to Defendants’ assertion, Fidelity Federal is not analogous to
the situation before us. The Supreme Court determined the FHLBB’s regulation pre-
empted California’s conflicting law because the preamble to the FHLBB regulation
expressly stated that federal savings and loans would not be subject to any state laws
that imposed different requirements from federal laws. Id. An additional FHLBB
regulation stated, “the due-on-sale practices of federal savings and loans ‘shall be
governed exclusively by the Board’s regulations in preemption of and without regard
to any limitations imposed by state law on either their inclusion or exercise.’” Id.
(citation omitted).
Defendants also cite Andrews v. Federal Home Loan Bank, 998 F.2d 214 (4th
Cir. 1993), for the proposition that where federal law allows for an organization to
exercise discretion, any state law taking away that discretion is pre-empted. In
Andrews, the United States Court of Appeals for the Fourth Circuit held that where
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federal law expressly provided, “The directors of each Federal Home Loan Bank . . .
shall have power . . . to select, employ, and fix the compensation of such officers,
employees, attorneys, and agents . . . and to dismiss at pleasure such officers,
employees, attorneys, and agents[,]” a dismissed bank employee’s wrongful
termination claim under state law was pre-empted. 998 F.2d at 220 (emphasis in
original) (citation omitted).
Unlike the express language of the federal statute in Andrews, nothing in §
1232g(b)(6)(B) of FERPA purports to grant an educational institution express
discretion over the release of exempt student records. To read § 1232g(b)(6)(B) as
granting such discretion would contravene the intent of Congress to preserve or give
states authority over disclosure of exempt student disciplinary records. See 144 Cong.
Rec. H2,984, (daily ed. May 7, 1998) (statement of sponsor Rep. Foley).
Fidelity Federal and Andrews are patently distinguishable from the case at
hand, because neither § 1232g(b)(6)(B), any other provision of FERPA, nor any
relevant federal regulations expressly or impliedly pre-empt state law to grant
educational institutions discretion over disclosure of exempt student disciplinary
records. See, e.g., 20 U.S.C. § 1232g(b)(6)(B).
Federal law does not pre-empt the Public Records Act with regard to the
specific limited information sought in Plaintiffs’ public records request, which is not
otherwise prohibited from disclosure under § 1232g(b)(6)(B) of FERPA. Defendants
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have failed to overcome the presumption against federal pre-emption and their
arguments are overruled. See Carolina Power & Light Co., 359 N.C. at 525, 614
S.E.2d at 287 (stating the rule of presumption against federal pre-emption).
E. Policy Arguments
Defendants also assert numerous “policy arguments” concerning the effects of
potential disclosure of the requested records at issue under Title IX. See 20 U.S.C. §§
1681-1688. After concluding that FERPA pre-empted the Public Records Act, the
trial court declined to address Defendants’ policy arguments, stating, “[T]he Court
has not considered the policy reasons for UNC[-CH]’s exercise of discretion, UNC[-
CH]’s desire to protect and nurture its students, or any other potentialities of
disclosure.”
Defendants argue the release of the specific records requested by Plaintiffs
would interfere with UNC-CH’s Title IX process for dealing with sexual assault by:
(1) deterring victims and witnesses from coming forward and participating in UNC-
CH’s Title IX process; and, (2) by jeopardizing the safety of alleged sexual assault
perpetrators.
“‘It is critical to our system of government and the expectation of our citizens
that the courts not assume the role of legislatures.’ Normally, questions regarding
public policy are for legislative determination.” In re N.T., 214 N.C. App. 136, 144,
715 S.E.2d 183, 188 (2011) (quoting Cochrane v. City of Charlotte, 148 N.C. App. 621,
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Opinion of the Court
628, 559 S.E.2d 260, 265 (2002)). We do not address the asserted merits of
Defendants’ policy arguments.
We note in passing, FERPA specifically mandates that any disclosures “may
include the name of any other student, such as a victim or witness, only with the
written consent of that other student.” 20 U.S.C. § 1232g(b)(6)(C) (emphasis supplied).
VI. Conclusion
The Public Records Act requires UNC-CH, a public agency, to comply with
Plaintiffs’ public records request. FERPA does not prohibit the disclosure of the
limited information requested by Plaintiffs, except for the dates of offenses. No
indication from the text of § 1232g(b)(6)(B) or within its legislative history supports
Defendants’ assertion that Congress intended to occupy the field of educational
records to such an extent that FERPA pre-empts state public records laws with
respect to public educational records that are expressly exempted from FERPA’s
protections. The legislative history of the 1998 amendments to FERPA shows
Congress intended that records exempted from FERPA under § 1232g(b)(6)(B) would
be “subject to the State laws that apply.” 144 Cong. Rec. H2,984, (daily ed. May 7,
1998) (statement of sponsor Rep. Foley)
FERPA expressly limits the educational records release and disclosures to:
the final results of any disciplinary proceeding— [and] (i)
shall include only the name of the student, the violation
committed, and any sanction imposed by the institution on
that student; and (ii) may include the name of any other
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Opinion of the Court
student, such as a victim or witness, only with the written
consent of that other student.
20 U.S.C. § 1232g(b)(6)(B)-(C).
Defendants must comply with Plaintiffs’ public records request to release the
student disciplinary records at issue, as provided above. That portion of the superior
court’s order and judgment appealed from, and as contrary to our holding, is reversed.
This cause is remanded to the superior court for further proceedings as are necessary
and consistent herewith. It is so ordered.
AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
Judges BRYANT and ELMORE concur.
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