TO THE HONORABLE SUPREME COURT OF NORTH CAROLINA:

Petitioner, DTH Publishing Corporation, d/b/a The Daily Tar Heel, respectfully petitions this Court to grant discretionary review pursuant to Rule 15 of the North Carolina Rules of Appellate Procedure, to review the judgment of the Court of Appeals entered February 17, 1998, attached hereto, upon the following grounds:

1. The decision of the Court of Appeals is in conflict with a decision of the Supreme Court; and

2. The subject matter of this petition has significant public interest.

FACTS

This case presents the court with a question of first impression -- to what extent do North Carolina’s Open Meetings Law and Public Records Law apply to the records and proceedings of the Undergraduate Court at the University of North Carolina at Chapel Hill. The University of North Carolina at Chapel Hill is a community of 24,141 students, each of whom is governed by the laws of the State of North Carolina and by the "laws" of the University of North Carolina. The Student Attorney General is responsible for investigating and prosecuting violations, and the Undergraduate Court is the body that adjudicates charges. This case concerns the right of access of members of the University community, as well as the public at large, to be present when charges ranging from underage drinking on campus to sexual assault are heard by the Undergraduate Court.

Students at the University of North Carolina are governed by the Instrument of Judicial Governance. The Code of Student Conduct comprises two codes, the Honor Code -- which governs academic behavior -- and the Campus Code -- which governs other student conduct. Under authority originally vested in the UNC Board of Governors, the Undergraduate Court considers and adjudicates such matters as academic offenses (cheating, plagiarism, etc.); physical assault; damage to or destruction of University property; sexual assault; possession of firearms and other dangerous weapons; and violations of the Board of Governors' Policy on Illegal Drugs, which prohibits the illegal possession of any controlled substance identified in Schedules I or II of the North Carolina General Statutes Sections 90-89 and 90-90 or the illegal manufacture, sale or possession of drugs.

All members of the Undergraduate Court are certified by the Undergraduate Court Chair and the Vice Chancellor for Student Affairs as qualified to serve as members of the court. After hearing the evidence, the Undergraduate Court renders a verdict and, if the verdict is guilty, a sanction. The Instrument of Student Judicial Governance provides that all sanctions are administered by the Vice Chancellor for Student Affairs with the assistance of the administrative officers of the various schools of the University, but that authority has been delegated to the Judicial Programs Officer, a University employee. Among the sanctions that can be imposed by the Undergraduate Court are suspension, probation, censure or such lesser sanctions as may be defined by joint faculty, student and administrative action. The Undergraduate Court may also recommend that the Chancellor expel a student found guilty of violating the Code of Student Conduct. Upon a finding of guilt, the defendant may appeal to the University Hearings Board and then to the Board of Trustees.

Around February 13, 1996, about 1500 copies of the Carolina Review, a magazine published by UNC-CH students, were removed from their distribution racks on campus. As a result of the removal Charlton Allen, the student publisher of the Carolina Review, instituted a complaint against fellow students Reza Ardalan and Rich Fremont, who became the defendants in a disciplinary hearing before the Undergraduate Court.

On April 16, 1996, the Undergraduate Court convened to consider the charges against Ms. Ardalan and Mr. Fremont. Thanassis Cambanis, who was then the editor of The Daily Tar Heel, attempted to attend the hearing but was told to leave by Margaret Barrett, UNC-CH Judicial Programs Officer. Ms. Barrett, an employee of the University’s division of student affairs, informed Mr. Cambanis that it was the University's position that, in order to be in compliance with the federal Family Educational Rights and Privacy Act, the hearings of the Undergraduate Court were required to be closed.

This case was commenced in Orange County Superior Court on April 18, 1996. The Daily Tar Heel sought (1) a determination by the court that the Undergraduate Court is subject to the North Carolina Open Meetings Law and Public Records Law and (2) an order enjoining the Undergraduate Court from conducting its hearings in closed session and requiring it to provide access to its documentary records.

The case was tried before the Honorable Gordon Battle without a jury on December 2, 1996. Judge Battle adopted the parties’ stipulations as the court’s findings of fact, made conclusions of law and entered his judgment on December 12, 1996. Therein, he held that the Undergraduate Court was a public body subject to the Open Meetings Law but that the Undergraduate Court had a legal right to close its hearings pursuant to the federal Family Educational Rights and Privacy Act ("FERPA"), 20 U.S.C. Section 1232g. Judge Battle further held that plaintiff had no right to inspect and copy the records of the Undergraduate Court.

Both parties appealed. The North Carolina Court of Appeals affirmed the trial court decision, finding that the Undergraduate Court is a public body under North Carolina’s Open Meetings Law but their deliberations and records are exempt from disclosure under FERPA.

REASONS WHY THIS COURT
SHOULD GRANT DISCRETIONARY REVIEW

I.        THE COURT OF APPEALS DECISION IS IN DIRECT CONFLICT WITH CASES OF THIS COURT.

A.      The Court of Appeals Decision Conflicts with Student Bar Association v. Byrd.

The only provision of the Open Meetings Law the Court of Appeals cited as authority for closing the proceedings of the Undergraduate Court was N.C. Gen. Stat. ¤ 143-318.11(a)(1), which authorizes a closed session when closure is required "to prevent the disclosure of information that is privileged or confidential pursuant to the law of this State or of the United States, or not considered a public record within the meaning of Chapter 132 of the General Statutes." The "other statute" on which the Court relied was the Family Educational and Privacy Rights Act (FERPA), 20 U.S.C. ¤ 1232g. However, FERPA does not require closure of the Undergraduate Court’s proceedings.

FERPA provides that "no funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice" of releasing, permitting the release of or providing access to educational records -- or personally identifiable information in educational records -- without the consent of a student or the parent of a student under 18 years of age. 20 U.S.C. ¤ 1232(g)(b)(1) and (2).

This Court, in Student Bar Association v. Byrd, 293 N.C. 594, 239 S.E.2d 415 (1977), has construed the relationship between the Open Meetings Law and FERPA and has held that unless a statute directly prohibits the disclosure of information, it does not create an exemption from the Open Meetings Law. The Court of Appeals simply misread the holding in Student Bar Association. In that case, this Court held:

The Buckley Amendment [FERPA] does not forbid such disclosure of information concerning a student and, therefore, does not forbid opening to the public a faculty meeting at which such matters are discussed. The Buckley Amendment simply cuts off federal funds, otherwise available to an educational institution which has a policy or practice of permitting the release of such information.

Id. at 599, 239 S.E.2d at 419. This Court noted the importance of considering these issues carefully, because FERPA was enacted after North Carolina’s Open Meetings Law. However, the General Assembly amended the Open Meetings Law significantly in 1994, after both the passage of FERPA and this Court’s opinion in Student Bar Association. Those amendments make even clearer that FERPA does not create an Open Meetings Law exemption.

The 1994 amendments to the Open Meetings Law essentially codified this Court’s holding in Byrd. The pre-1994 statute contained an exemption for proceedings "to consider information, when State or federal law (i) directs that the information be kept confidential or (ii) makes the confidentiality of the information a condition of State or federal aid." Former N.C. Gen. Stat. ¤ 143-318.11(a)(12) (repealed 1994). However, the "funding prong" of former (a)(12) was removed in 1994, leaving an exemption only for state or federal statutes that mandate confidentiality.

Moreover, the Open Meetings Law formerly contained an express exemption for "hearing, considering and deciding disciplinary cases involving students in closed session." Former N.C. Gen. Stat. ¤ 143-318.3(b). This exemption has been eliminated.

A finding in favor of access is consistent with several cases in other jurisdictions that have construed state sunshine laws in light of FERPA. Two state supreme courts and one federal district court have held that student disciplinary records are not education records within the meaning of FERPA. While the FERPA’s definition of "educational records" is worded broadly, courts have interpreted the statute and its legislative history as addressing academic records. Most recently, in State ex rel. The Miami Student et al. v. Miami University et al., 680 N.E.2d 956, cert. denied 118 S.Ct. 616, 139 L.Ed. 502 (Ohio 1997), the Ohio Supreme Court held that university disciplinary records are not "education records" under FERPA.

[The University Disciplinary Board] proceedings are nonacademic in nature. The UDB records, therefore, do not contain educationally related information, such as grades or other academic data, and are unrelated to academic performance, financial aid, or scholastic performance. Consequently, . . . university disciplinary records are not ‘education records’ as defined in FERPA.

Id. at 959.

In reaching its decision in the Miami University case, the Ohio Supreme Court adopted much of the reasoning of the Supreme Court of Georgia in a case remarkably similar to this one. In Red & Black v. University of Georgia Board of Regents, 427 S.E.2d 257 (Ga. 1993), the Georgia court held that records relating to proceedings in which the University of Georgia honor court heard charges of hazing against a campus organization were "not of the type the Buckley Amendment [FERPA] is intended to protect, i.e., those relating to individual student academic performance, financial aid, or scholastic probation." Id. at 261. The Georgia court also recognized that the purpose of FERPA "was not to grant individual students the right of privacy or access to educational records, but to control the careless release of educational information on the part of many institutions." Id. To like effect is Bauer v. Kincaid, 759 F. Supp. 575, 590-91 (W.D. Mo. 1991), where the court found that FERPA’s law enforcement exemption is evidence that Congress did not intend criminal investigations and incident reports to be confidential. Rather, the court said, "[t]he function of the statute is to protect educationally related information." Id. Further support for this position is found in the fact that some courts have held FERPA does not provide a private right of action for students who have been the "victim" of FERPA violations. Smith v. Duquesne University, 612 F. Supp. 72 (W.D.Pa. 1985), aff’d 787 F.2d 583 (D.C. Pa. 1986).

Although decisions of the Ohio and Georgia supreme courts, and of federal district courts, are not binding upon this Court, they are instructive and helpful. The reasoning applied by the Ohio and George courts in cases virtually indistinguishable from this one is persuasive and should have been followed by the Court of Appeals.

    B. The Court of Appeals Decision Conflicts with this Court’s Rule That Public Access Statutes Are to Be Interpreted Liberally and Exemptions Construed Narrowly.

The Public Records Law defines "public records" to include all documents, sound recordings, or other documentary material made or received pursuant to law or ordinance in connection with the transaction of public business by a public agency or public official. N.C. Gen. Stat. ¤ 132-1(a). The Public Records Law is intended to afford all citizens ready access to the documents and other records kept by those who transact public business. Drawing on the specific and unequivocal wording of the statute, this Court has stated that "it is clear that the legislature intended to provide that, as a general rule, the public would have liberal access to public records." News and Observer Publishing Co. v. State ex rel. Starling, 312 N.C. 276, 281, 322 S.E.2d 133, 137 (1984).

Section 132-6 of the North Carolina General Statutes provides that every person having custody of a public record shall permit the record to be examined, inspected and copied. The Court of Appeals has highlighted the importance of public disclosure of records relating to the conduct of public business. "'[W]here records deal with how the government is operated, a desire to publish the information in a newspaper to inform the public is a legitimate purpose for seeking to inspect them.'" Advance Publications v. City of Elizabeth City, 53 N.C. App. 504, 506, 281 S.E.2d 69, 70 (1981) (quoting 66 Am. Jur. 2d, Records and Recording Laws, 16 at 352-53 (1973)). The General Assembly has created only three, narrow exemptions under the public records law: documents protected by the attorney/client privilege, confidential trade secret information provided to a public agency in the execution of a public contract, and limited criminal investigative information. As the Court of Appeals held in Advance, "We thus presume [the legislature] intended only the exemption[s] set forth." Id. Moreover, the Advance court held that questions arising under the Public Records Law must be resolved in favor of affording access: "Good public policy is said to require liberality in the right to examine public records." Id.

The Undergraduate Court both receives and generates public records. There is no exemption in the public records law -- and the University has suggested none other than FERPA -- that would permit the University to withhold from public disclosure the records at issue. Because FERPA does not prohibit disclosure of the records at issue here, the plaintiff is entitled to relief under the Public Records Law.

    II. THIS CASE INVOLVES AN ISSUE OF SIGNIFICANT PUBLIC INTEREST.

Anecdotal evidence reveals that crime on college campuses is a serious problem and that the public is not getting full access to accurate statistics of campus crime. Although studies indicate that one in six of all college students will be victimized by crime, Smith & Fossey, Crime on Campus 15 (American Council on Education, Oryx Press, 1995), one survey reports that almost one-third of campus police and security officials admit that they are not providing accurate campus crime information to the public. Whitman, Survey of College and University Law Enforcement Personnel to Determine Compliance with Campus Crime Disclosure Laws (Campus Safety and Security Institute 1992). See also Jeanne Morris and Paula Tracy, "At Universities, Crime Reporting Is Not Universal," The Union Leader, December 21, 1997, at A1; Dorina Lazo, "Colleges Accused of Hiding Crime; Congress Urged to Revise Campus Confidentiality Law," Chicago Tribune, July 18, 1997; at 13; Lisa Garcia, "Crime Reports Targeted; Colleges Accused of Covering up," Roanoke Times & World News, March 14, 1997, at NRV1; Angie Cannon, "Colleges often less than forthright on crime; Incidents omitted, underreported," The Cincinnati Enquirer, September 12, 1996, at A12.

Information about campus crime surely is of critical importance to the public, and therefore their right of access to such information is equally important. Statistics such as these led the Ohio Supreme Court to write:

Unfortunately, at present, crimes and other student misconduct are escalating at campuses across the nation. For potential students, and their parents, it is imperative that they are made aware of all campus crime statistics and other types of student misconduct in order to make an intelligent decision of which university to attend. Likewise, for students already enrolled in a university, their safety is of utmost importance. Without full public access to disciplinary proceeding records, that safety may be compromised. By our decision today, we believe we are following the dictates of [the public records law], which is to foster openness and to encourage the free flow of information where it is not prohibited by law.

State ex Rel. The Miami Student et Al. v. Miami University et al., 680 N.E.2d 956, 959, cert. denied, 118 S. Ct. 616, 139 L.Ed. 2d 502 (Ohio 1997). As the Georgia Supreme Court observed, the business of honor courts is different from other student groups, such as the glee club, which are of little significance to the community at large. Red & Black Publishing Co. v. Board of Regents, 427 S.E.2d 257, 263 (Ga. 1993).

In fact, the question of college honor courts adjudicating serious crimes has been gaining public attention and interest. See Nellie Andreeva, "Courts, not colleges, should judge crime," Bangor Daily News, December 24, 1997, at 1; Nina Bernstein and Jim Phillips, "CAMPUS JUSTICE; Universities, colleges have their own systems for dealing with crime, and - victims suffer," Austin American-Statesman, May 5, 1996, at A1.

The significant public interest in the operations of public bodies is well described in the many open government cases already decided by North Carolina’s appellate courts. In Advance Publications v. City of Elizabeth City, 53 N.C. App 504, 506, 281 S.E.2d 69, 70 (1981), the North Carolina Court of Appeals held that the North Carolina Public Records Law is to be liberally construed in favor of public access, and in News & Observer Publishing Co. v. Interim Board of Education for Wake County, 29 N.C. App. 37, 47, 223 S.E.2d 580, 586 (1976), the court held that exceptions to the Open Meetings Law should be strictly construed, "since they derogate the general policy of open meetings." The Court of Appeals has now backed away from these strong policy statements, has narrowly construed the Open Meetings Law and has liberally construed an exception to it.

In contrast to the significant public interest in access to government operations and records, the University has demonstrated that its stated interest in observing FERPA is facial, at best. The University has contended that, with the exception of directory information, every bit of information about a student is an education record, and that education records are disclosed in the course of student disciplinary hearings. Moreover, FERPA does not contain any exemption for disclosure of education records to fellow students acting as an honor court. However, in the course of an Undergraduate Court proceeding, the University by design discloses all of the relevant student records of a defendant to (1) the student attorney general, (2) the defense counsel, if there is one, and (3) the members of the Undergraduate Court. In certain circumstances, the complaining party has a right to be present during the proceedings, and both the complaining party and the accused have a right to have a "support person" present during the hearing. Thus, under current procedures as many as eight students may gain access to the Undergraduate Court’s proceedings without the consent of the accused.

Having developed and employed a procedure that discloses countless disciplinary records to students each year, the University has waived its right to now argue that FERPA prohibits disclosing disciplinary records to the public.

1. Does the family educational rights and privacy act, 20 U.S.C. section 1232g (FERPA), require the closure of honor court proceedings at public universities?

2. Are the recordings of public university honor court proceedings public records?

Wherefore, petitioner respectfully prays that this Court grant discretionary review to permit review of the Court of Appeals decision denying the public access to the hearings and records of the Undergraduate Court’s proceedings on allegations of non-academic matters.

Respectfully submitted this 24th day of March, 1998.

CERTIFICATE OF SERVICE

The undersigned counsel hereby certifies that the foregoing Petition for Discretionary Review was served on counsel for the defendants by U.S. mail, addressed asa follows:

This the 24th day of March, 1998.