DTH Media Corp. v. Folt

IN THE SUPREME COURT OF NORTH CAROLINA
No. 142PA18
Filed 1 May 2020
DTH MEDIA CORPORATION, CAPITOL BROADCASTING COMPANY, INC.,
THE CHARLOTTE OBSERVER PUBLISHING COMPANY, and THE DURHAM
HERALD COMPANY
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
On discretionary review pursuant to N.C.G.S. § 7A-31 from the decision of a
unanimous panel of the Court of Appeals, 259 N.C. App. 61, 816 S.E.2d 518 (2018),
reversing a judgment entered on 9 May 2017 by Judge Allen Baddour in Superior
Court, Wake County. Heard in the Supreme Court on 27 August 2019.
Stevens Martin Vaughn & Tadyck, PLLC, by Hugh Stevens for plaintiff-
appellees.
J.D. Jones Law, PLLC, by Jonathan D. Jones for Student Press Law Center
and Brechner Center for Freedom of Information, amici curiae.
Joshua H. Stein, Attorney General, by Stephanie A. Brennan, Special Deputy
Attorney General, and Matthew Burke, Solicitor General Fellow, for defendant-
appellant.
MORGAN, Justice.
This matter presents questions which require this Court to interpret the
federal Family Educational Rights and Privacy Act (FERPA) and the North Carolina
Public Records Act (the Public Records Act) in order to determine whether officials of
DTH MEDIA CORP. V. FOLT
Opinion of the Court
The University of North Carolina at Chapel Hill (UNC-CH or University) are
required to release, as public records, disciplinary records of its students who have
been found to have violated UNC-CH’s sexual assault policy. The Court of Appeals
unanimously determined that such records are subject to mandatory disclosure. We
affirm.
Factual and Procedural Background
This case arises out of a dispute between various news organizations and
officials of UNC-CH’s administration. Plaintiffs DTH Media Corporation; Capitol
Broadcasting Company, Inc.; The Charlotte Observer Publishing Company; and The
Durham Herald Company (collectively, plaintiffs) are news organizations based in
North Carolina which regularly report on matters regarding UNC-CH. Defendants
are Carol L. Folt, the former Chancellor of UNC-CH and Gavin Young, the Senior
Director of Public Records of UNC-CH (collectively, defendants). Plaintiffs brought
this legal action against defendants in the defendants’ official capacities for alleged
violations of the Public Records Act. The Act was enacted by the North Carolina
General Assembly in order to make public records readily available because they “are
the property of the people.” See N.C.G.S. §§ 132-1 to -11 (2017). Defendants contend
that they are prohibited from complying with the Public Records Act in light of
applicable provisions of FERPA. The parties stipulated to the following facts, which
were adopted by the lower courts and utilized in their respective determinations in
the controversy prior to this Court’s involvement.
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Since 2014, UNC-CH has adhered to its comprehensive “Policy on Prohibited
Discrimination, Harassment and Related Misconduct” that includes prohibitions on,
and potential punishments for, sexual-based and gender-based harassment and
violence. In a letter dated 30 September 2016, plaintiffs requested, pursuant to the
Public Records Act, “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.”
The letter was addressed to officials of UNC-CH, including defendant Young. In a
letter dated 28 October 2016 and signed by Joel G. Curran, UNC-CH’s Vice
Chancellor for Communications and Public Affairs, UNC-CH expressly denied
plaintiffs’ request. In his letter, Vice Chancellor Curran asserted that the records
requested by plaintiffs were “educational records” as defined by FERPA and were
thus “protected from disclosure by FERPA.”
After subsequent communications between the parties, including mediation
proceedings which were conducted pursuant to N.C.G.S. § 78-38.3E, plaintiffs
narrowed the scope of their request for records which were held in the custody of
UNC-CH 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
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violation for which each such person was found responsible; and (c) the sanction[]
imposed on each such person for each such violation.” UNC-CH denied plaintiffs’
revised, more limited request on 11 November 2016 during an in-person meeting, and
further reiterated to plaintiffs on 18 November 2016 that the University would
continue to decline plaintiffs’ request for the records at issue pursuant to FERPA.
On 21 November 2016, following the continued denial of their request,
plaintiffs filed a complaint and sought an order for defendants to show cause under
the Public Records Act and the North Carolina Declaratory Judgments Act.
See N.C.G.S. §§ 1-253 to -267. Plaintiffs sought in relevant 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.G.S. § 132-
1; and (3) an order compelling defendants to permit the inspection and copying of
these records, pursuant to N.C.G.S. § 132-9(a) in their capacity as public records.
Defendants filed their answer to plaintiffs’ complaint and petition for the show
cause order on 21 December 2016, claiming that “FERPA, a federal law that preempts
the Public Records Act, strictly prohibits” the disclosure of the records at issue. More
specifically, defendants asserted UNC-CH’s position that
[u]nder FERPA, the University has reasonably exercised
its discretion not to release this information, because doing
so would breach the confidentiality of the University’s Title
IX process and would interfere with and undermine that
process. More specifically, disclosure of this information
would deter victims from coming forward and participating
in the University’s Title IX process, thus preventing
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victims from receiving the help and support available to
them through the University’s Title IX process and
preventing the University from learning about potential
serial perpetrators, which would undermine the safety of
the campus community. Additionally, disclosure of this
information would permit the identification of victims by
members of the campus community who know their
relationship to the responsible person and by providing the
responsible student motivation to reveal the name of the
victim, which would lead to victims being re-traumatized.
Such disclosure would deter the participation of witnesses
and further impede the University’s ability to render a fair,
just, and informed determination, and jeopardize the
safety of students found responsible during the Title IX
process by placing them at risk for retribution.
Following a hearing on plaintiffs’ request for declaratory judgment which was
conducted on 6 April 2017, the Superior Court, Wake County entered an order and
final judgment filed on 9 May 2017 which, inter alia, denied plaintiffs’ request for a
declaratory judgment in determining that defendants were not required to produce
the student records requested by plaintiffs.1 In reaching its decision, the trial court
concluded that the Public Records Act does not compel the release of public records
where an exception is “otherwise specifically provided by law,” and agreed with
defendants’ position as expressed in the trial court’s order and final judgment, that
[i]n 20 U.S.C. § 1232(b)(6), FERPA grants the University
the discretion to determine whether to release (1) the name
of any student found ‘responsible’ under University policy
of a ‘crime of violence’ or ‘nonforcible sex offense,’ (2) the
violation, and (3) the sanction imposed. The University
may disclose (but is not required to disclose) this
1 Both parties agree that the matter concerning UNC-CH employees’ records which is
addressed in the trial court’s order and final judgment is not at issue on appeal.
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information only if the University determines that the
student violated the University’s rules or policies.
In applying principles enunciated in the United States Constitution and pertinent
cases of the Supreme Court of the United States, the trial court entered conclusions
of law that the doctrines of both field preemption and conflict preemption operate to
implicitly preempt, by force of federal law, any required disclosure by North
Carolina’s Public Records Act of the requested records. Plaintiffs appealed the portion
of the trial court’s order and final judgment relating to the denial of access to the
student records in dispute to the Court of Appeals.
In addressing the respective arguments of plaintiffs and defendants, the lower
appellate court’s analysis of the questions presented for resolution included the
following subjects: the Public Records Act enacted by the North Carolina General
Assembly, the Family Educational Rights and Privacy Act enacted by the United
States Congress, the interaction between this state law and this federal law regarding
their individual and joint impacts on the present case, and principles of federal
preemption. In an effort to promote efficiency and to diminish repetition, we shall
integrate the parties’ respective arguments, the Court of Appeals’ determinations,
and the Court’s conclusions throughout our opinion’s overlapping treatment of them.
Analysis
A. The legislative enactments
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Plaintiffs initially asked defendants to provide copies of all public records made
or received by UNC-CH in connection with any person having been found responsible
for rape, sexual assault, or any related or lesser-included sexual conduct by UNC-
CH’s Honor Court, the Committee on Student Conduct, or the Equal Opportunity and
Compliance Office. This request was made pursuant to the Public Records Act, which
is codified in the North Carolina General Statutes in §§ 132-1 through 132-11. The
request was subsequently narrowed to encompass records in the custody of UNC-CH
that included (a) the name of any person who, since January 1, 2007, had 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.
In its totality, N.C.G.S. § 132-1 reads as follows:
(a) “Public record” or “public records” shall mean all
documents, papers, letters, maps, books, photographs,
films, sound recordings, magnetic or other tapes, electronic
data-processing records, artifacts, or other documentary
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.
Agency of North Carolina government or its subdivisions
shall mean and include every public office, public officer or
official (State or local, elected or appointed), institution,
board, commission, bureau, council, department, authority
or other unit of government of the State or of any county,
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unit, special district or other political subdivision of
government.
(b) 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 unless otherwise specifically provided by law.
As used herein, “minimal cost” shall mean the actual cost
of reproducing the public record or public information.
N.C.G.S. § 132-9(a) states, in its entirety:
Any person who is denied access to public records for
purposes of inspection and examination, or who is denied
copies of public records, may apply to the appropriate
division of the General Court of Justice for an order
compelling disclosure or copying, and the court shall have
jurisdiction to issue such orders if the person has complied
with G.S. 7A-38.3E.2 Actions brought pursuant to this
section shall be set down for immediate hearing, and
subsequent proceedings in such actions shall be accorded
priority by the trial and appellate courts.
In declining plaintiffs’ request for the identified records in its custody, UNC-
CH interpreted the Family Educational Rights and Privacy Act—codified at 20
United States Code Section 1232g—to permit UNC-CH the ability to deny access to
the records at issue, based upon its obligation to comply with Title IX of the Education
Amendments of 1972, found in 20 U.S.C. §§ 1681–88. Pertinent provisions of FERPA
regarding the parties’ respective positions, the trial court’s order and final judgment,
2 N.C.G.S. § 7A-38.3E governs the mediation of public records disputes.
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the Court of Appeals decision, and this Court’s determination include salient
segments of:
 20 U.S.C. § 1232g(a)(4)(A): “For the purposes of this
section, the term ‘education records’ means . . . 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 agency or
institution”;
 20 U.S.C. § 1232g(b)(1): “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 other than directory information . . .) of students
without the written consent of their parents . . .”;
 20 U.S.C. § 1232g(b)(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 . . . except . . . such
information is furnished in compliance with judicial
order . . . upon condition that parents and the students
are notified of all such orders . . . in advance of the
compliance therewith by the educational institution or
agency . . .”;
 20 U.S.C. § 1232g(b)(6)(B): “Nothing in this section
shall be construed to prohibit an institution of
postsecondary education from disclosing the final
results of any disciplinary proceeding conducted by
such institution against a student who is an alleged
perpetrator of any crime of violence . . . or a nonforcible
sex offense, if the institution determines as a result of
that disciplinary proceeding that the student
committed a violation of the institution’s rules or
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policies with respect to such crime or offense”;
 20 U.S.C. § 1232g(b)(6)(C): “For the purpose of this
paragraph, the final results of any disciplinary
proceeding[ ] (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 student, such as a victim
or witness, only with the written consent of that other
student”; and
 20 U.S.C § 1681(a): “No person in the United States
shall, on the basis of sex, be excluded from participation
in, be denied the benefits of, or be subjected to
discrimination under any education program or activity
receiving Federal financial assistance . . . .”
B. Consideration and application of the Public Records Act and the
Family Educational Rights and Privacy Act
This Court reviews issues of statutory interpretation de novo. “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 cardinal principle of
statutory construction is that the intent of the legislature is controlling. In
ascertaining the legislative intent courts should consider the language of the statute,
the spirit of the statute, and what it seeks to accomplish.” State ex rel. Util. Comm’n
v. Public Staff, 309 N.C. 195, 210, 306 S.E.2d 435, 443-44 (1983) (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). “When multiple statutes address a single matter or subject, they must be
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construed together, in pari materia, to determine the legislature’s intent.” Carter-
Hubbard Publ’g Co., Inc. v. WRMC Hosp. Operating Corp., 178 N.C. App. 621, 624,
633 S.E.2d 682, 684 (2006), aff’d, 361 N.C. 233, 641 S.E.2d 301 (2007). “Statutes in
pari materia must be harmonized, ‘to give effect, if possible, to all provisions without
destroying the meaning of the statutes involved.’ ” Id (citation omitted). As we said
in Empire Power Co. v. N.C. Dept. of E.H.N.R., 337 N.C. 569, 447 S.E.2d 768 (1994),
a case upon which both parties rely to support their respective views here regarding
statutory construction and its in pari materia component:
as in any area of law, the primary function of a court is to
ensure that the purpose of the Legislature in enacting the
law, sometimes referred to as legislative intent, is
accomplished . . . We should be guided by the rules of
construction that statutes in pari materia, and all parts
thereof, should be construed together and compared with
each other. Such statutes should be reconciled with each
other when possible.
Id. at 591, 447 S.E.2d at 781.
In the present case, the state’s legislative body—the North Carolina General
Assembly—has clearly expressed its intent through the Public Records Act to make
public records readily accessible as “the property of the people,” as described in
N.C.G.S. § 132-1(b). There is no dispute between plaintiffs and defendants before this
Court that the student disciplinary records meet the definition of “public records”
under N.C.G.S. § 132-1, that UNC-CH comes within the purview of the Public Records
Act, and that said records are within the custody and control of UNC-CH. The Public
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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). The Act is intended to be liberally construed to ensure that
governmental records be open and made available to the public, subject only to a few
limited exceptions. The Public Records Act thus allows 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 added). “Exceptions and exemptions to the Public Records Act must be
construed narrowly.” Carter-Hubbard Publ’g Co., 178 N.C. App. at 624, 633 S.E.2d at
684.
As for the Family Educational Rights and Privacy Act, the federal legislative
body—the United States Congress—has clearly expressed its intent through FERPA
that the ready accessibility of education records exhibited by an “educational agency
or institution which has a policy or practice of permitting the release of education
records (or personally identifiable information contained therein other than directory
information . . .) of students without the written consent of their parents . . .” shall
result in “[n]o funds . . . be[ing] made available under any applicable program” to such
an educational agency or institution, pursuant to 20 U.S.C. § 1232g(b)(1). Just as the
student disciplinary records at issue in the instant case are considered to be “public
records” under the state’s Public Records Act, they are also considered to be
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“education records” under FERPA; just as UNC-CH is deemed to be an “agency of
North Carolina government or its subdivisions” under the Public Records Act, it is
also deemed to be an “educational agency or institution” under FERPA.
Defendants have chosen to construe FERPA in such a manner that they have
considered UNC-CH to be prohibited “from disclosing ‘education records,’ including
records related to sexual assault investigations and adjudications governed by Title
IX.” Regarding “campus disciplinary adjudications of sexual assault,” UNC-CH
opines that “FERPA prohibits the disclosure of education records but grants
universities discretion to determine whether to disclose three items of information:
the name of the responsible student, the violation, and the sanction imposed.” In light
of its construction of FERPA and this federal law’s perceived concomitant
relationship with Title IX as embodied in 20 U.S.C. § 1681(a), et seq, UNC-CH
assumes the posture as to the release of the student disciplinary records which are
the focus of this legal controversy, that “the University has exercised its discretion
and has declined to disclose this information because the University has determined
that the release of this information would lead to the identification of victims,
jeopardize the safety of the University’s students, violate student privacy, and
undermine the University’s efforts to comply with Title IX.”
Defendants’ justification for its interpretation of FERPA in this subject matter
area is premised on its application of FERPA’s provision of 20 U.S.C. § 1232g(b)(6)(B),
from which it is surmised that UNC-CH has the discretion to determine whether to
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release information about a student disciplinary proceeding outcome, and FERPA’s
provision of 20 U.S.C. § 1232g(b)(6)(C)(i), which limits the divulgence of “the final
results of any disciplinary proceeding” to “the name of the student, the violation
committed, and any sanction imposed by the institution or that student . . . .”
Defendants discern that the phrase contained in 20 U.S.C. § 1232g(b)(6)(B), “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” (emphasis added) impliedly cloaks UNC-CH with the discretionary
authority to determine whether to release the outcome of a student disciplinary
proceeding in light of the introductory portion of the provision that “[n]othing in this
section shall be construed to prohibit an institution of postsecondary education from
disclosing the final results of any disciplinary proceeding conducted by such
institution against a student who is an alleged perpetrator of any crime of violence
. . . or a nonforcible sex offense . . . .” It is compelling in light of the Court’s duty to
observe and to implement the aforementioned canons of statutory construction, that
there is no express provision in FERPA that reposes the authority in UNC-CH to
exercise the discretion that it purports to have. On the other hand, plaintiffs assert
that there is no conflict between the state’s Public Records Act and the federal law,
FERPA, that the Public Records Act and its underlying legislative intent support
liberal access to the records at issue here, and that the Court of Appeals is correct in
its determination that the two legislative enactments which govern these records can
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and should be construed in pari materia so as to afford plaintiffs the access to the
student disciplinary records which is sought.
We conclude that the Court of Appeals correctly held that 20 U.S.C.
§ 1232g(b)(6)(B) did not grant implied discretion to UNC-CH to determine whether
to release the results of a student disciplinary proceeding emanating from rape,
sexual assault, or sexual misconduct charges in absence of language expressly
granting such discretion. We also note that the lower appellate court properly
recognized that “[p]laintiffs’ 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.” DTH v. Folt, 259 N.C. App.
at 69, 816 S.E.2d at 524 (citing 20 U.S.C. § 1232g(b)(6)(B)). Since FERPA contains no
such language, but instead specifies that the categories of records sought here are
public records subject to disclosure—“Nothing in this section shall be construed to
prohibit an institution of postsecondary education from disclosing . . .”—we see no
conflict between the federal statute and the state Public Records Act. This North
Carolina law has been interpreted consistently by our state courts as intended for
liberal construction affording ready access to public records, subject to limited
exceptions. See Carter-Hubbard Publ’g Co., 178 N.C. App. at 624, 633 S.E.2d at 684.
Accordingly, we conclude, as did the Court of Appeals, that defendants’ contended
interpretation of the two statutes “conflicts with both the Public Records Act’s
mandatory disclosure requirements and the plain meaning of FERPA’s
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§ 1232g(b)(6)(B), which allows disclosure.” Id. at 70–71, 816 S.E.2d at 525. This result
reconciles and harmonizes the Public Records Act and the Family Educational Rights
and Privacy Act, while preserving the integrity of the well-established doctrines
which guide proper statutory construction. It also reinforces that the Public Records
Act may be available to compel disclosure through judicial process if necessary, in the
face of a denial of access to such records.
Unfortunately, the dissent subscribes to UNC-CH’s depiction of the
University’s discretion “to produce the records at issue upon request by a third party
if it chooses to do so in the exercise of its independent judgment.” In embracing the
position of UNC-CH that the institution possesses such pervasive discretion in light
of the federal law, the dissent strives to justify its acceptance of this representation
by combining the open-ended, non-prohibitive beginning phrase of 20 U.S.C.
§ 1232g(b)(6)(B), “Nothing in this section shall be construed to prohibit an institution
of postsecondary education from disclosing the final results of any disciplinary
proceeding conducted by such institution against a student . . .” (emphasis added)
with the permissive introductory language of 34 C.F.R. § 99.31(a), “An educational
agency or institution may disclose personally identifiable information from an
education record of a student . . .” (emphasis added) so as to allow this tandem of
federal law provisions to operate as though the state’s Public Records Act does not
exist. Indeed, it is a fairly elementary deduction, in neatly configuring these two
separate segments of federal enactments into the single determinant which the
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dissent declares, that “Nothing in this section [20 U.S.C. § 1232g(b)(6)(B)] shall be
construed to prohibit an institution of postsecondary education from disclosing the
final results of any disciplinary proceeding conducted by such institution against a
student . . . [such that] [a]n educational agency or institution may disclose personally
identifiable information from an education record of a student . . . .” We agree that,
standing alone, a postsecondary educational institution possesses such discretion to
disclose. However, when such a postsecondary educational institution is a public
postsecondary educational institution such as UNC-CH, operating as an undisputed
“agency of North Carolina” under the Public Records Act and therefore subject to
comply with requests for public records when asserted under N.C.G.S. § 132-1, then
“[n]othing in this section [20 U.S.C. § 1232g(b)(6)(B)] shall be construed to prohibit
an institution of postsecondary education from disclosing the final results of any
disciplinary proceeding conducted by such institution against a student.”
Therefore, in properly applying the foundational principles of statutory
construction so as to reconcile multiple legislative enactments in an effort to
harmonize their joint and mutual operation, the established methodology to be
applied here would be an examination, in the first instance, of the state law’s
mandatory Public Records Act provision and the federal law’s permissive Code of
Federal Regulations language which supplements FERPA’s open-ended and non-
prohibitive language, instead of the dissent’s employment of the erroneous
methodology of initially combining the two federal provisions, thus developing in a
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vacuum the flawed conclusion consistent with UNC-CH’s view that the University
commands discretion over the release of the public records, and only then secondarily
considering the operation of the Public Records Act after having prematurely
succumbed to the conclusions that “a university has the authority to produce the
records at issue upon request by a third party if it chooses to do so in the exercise of
its independent judgment” and “the doctrine of conflict preemption is directly
applicable” which would preclude the operation of the Public Records Act in the
present case. Plaintiffs submitted their request for the records at issue to the
University pursuant to the Public Records Act because of the educational institution’s
status as an “agency of North Carolina.” It is therefore appropriate, due to the
mandatory nature of the state law and the liberal construction which our state courts
have given it, to look initially at the application of the Public Records Act in light of
plaintiffs’ request, then assess whether there are any other legislative provisions of
any sort which present potential conflict with the operation of the Public Records Act,
and then implement the established principles of statutory construction to reconcile
such provisions. See Times-News, 124 N.C. App. at 177, 476 S.E.2d at 452 (The Public
Records Act allows 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.”
(emphasis added)). In the present case, however, the dissent elects to ignore the
logical inception of the analysis by vaulting the state’s Public Records Act, grasping
the federal nature of FERPA and the cited provision from the Code of Federal
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Regulations, and concluding that an opening assessment of the applicability of the
state law upon which plaintiffs’ records request is expressly premised leads to a “look
to North Carolina law to determine congressional intent.” The dissent’s depiction and
conclusion are both inaccurate. This defective approach by the dissent miscalculates
the authority of 20 U.S.C. § 1232g(b)(6)(B) and 34 C.F.R. § 99.31 in the face of
N.C.G.S. §132-1, by erroneously elevating the authority of the federal law’s
application here while wrongfully subjugating the authority of the state law’s express
mandates which require that the public records at issue be released in the dearth of
any federal law express mandates which require that these public records be
withheld.
Consistent with the rule of statutory construction to regard the plain meaning
of the words of a statute, 20 U.S.C. § 1232g(b)(6)(C) allows only the disclosure of the
name of the student, the violation committed, and any sanction imposed by the
institution on that student upon the release of the final results of any disciplinary
proceeding. We agree with the Court of Appeals that the dates of offenses which were
requested by plaintiffs pursuant to the Public Records Act are not subject to
disclosure under FERPA; therefore, UNC-CH is only required to disclose to plaintiffs,
pursuant to the operation of the Public Records Act, the name of the student, the
violation committed, and any sanction imposed by UNC-CH on that student upon the
release of the final results of any disciplinary proceeding.
C. Examination of the federal preemption doctrine
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Opinion of the Court
Defendants invoke the doctrine of federal preemption in contending that
“[e]ven if the [state’s] Public Records Act mandated disclosure, FERPA would
preempt the Act through conflict preemption[,]” and “FERPA also preempts the
Public Records Act because mandating disclosure frustrates the purposes of federal
law, which allocates to the University the ability to decide whether disclosure best
promotes the prevention of sexual assaults and misconduct on a campus.”
Additionally, defendants posit that “FERPA’s discretion also conflicts with the Public
Records Act’s purported disclosure mandate.” These federal preemption theories,
which are posited by defendants, are all based on the faulty premise that UNC-CH
has the discretion to determine whether to release the final results of any student
disciplinary proceeding—a postulation which we have already nullified in our earlier
analysis. While defendants claim that “[c]onflict preemption applies because
compliance with both FERPA and the Public Records Act is impossible here,” we have
already determined in this case that such compliance is possible. Although
defendants argue that “FERPA and the Public Records Act conflict because the
University cannot both exercise discretion about releasing information and be forced
to release records containing that information,” we have heretofore established in this
case that the two Acts do not conflict under these circumstances as well as held in
this case that UNC-CH does not have the discretion regarding the release of the
information at issue. Nonetheless, since our learned colleagues who are in the dissent
have addressed their view of the role of the doctrine of federal preemption in this case
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Opinion of the Court
and since the lower appellate court addressed the subject of the applicability of the
federal preemption doctrine in notable detail in its opinion, we elect to examine the
principle to a warranted degree.
Generally, if a state law conflicts with a federal law that regulates the same
conduct, the federal law prevails under the doctrine of preemption. “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); see also Hillsborough Cty. v. Automated Med.
Labs., Inc., 471 U.S. 707, 715 (1985). The presumption is grounded in the fact that a
finding of federal preemption intrudes upon and diminishes the sovereignty accorded
to states under our federal system. Indeed, in Wyeth v. Levine, the United States
Supreme Court explained that “[i]n all [preemption] cases, and particularly those in
which Congress has ‘legislated . . . in a field which the States have traditionally
occupied’ . . . we ‘start with the assumption that the historic police powers of the
States were not to be superseded by the Federal Act unless that was the clear and
manifest purpose of Congress.’ ” 555 U.S. 555, 565 (2009) (alterations in original)
(quoting Medtronic, Inc. v. Lovr, 518 U.S. 470, 485 (1996)). The exercise of such
authority by the United States Congress, where shown clearly and manifestly by the
federal legislative body, is known as “express preemption”; however, Congress may
also achieve such a result through “implicit preemption.” Congress may consequently
preempt, i.e. invalidate, a state law through federal legislation. It may do so through
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Opinion of the Court
express language in a statute. But even where a statute does not refer expressly to
preemption, Congress may implicitly preempt a state law, rule, or other state action.
Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 376 (2015). Congress may implement
implicit preemption either through conflict or field preemption. Id. “Conflict
preemption exists where ‘compliance with both state and federal law is impossible’ or
where ‘the state law stands as an obstacle to the accomplishment and execution of
the full purposes and objectives of Congress.’ ” Id. at 377 (citing California v. AR
Calmenica Corp., 490 U.S. 93, 100–01 (1989)). As to field preemption, “Congress has
forbidden the State to take action in the field that the federal statute preempts.” Id.The Court of Appeals, in the present case, considered both types of the conflict
preemption aspect of the federal preemption doctrine and determined that there was
no conflict between the federal law, FERPA, and the state’s Public Records Act,
because compliance by UNC-CH with both of them is possible. As the lower tribunal
noted in considering the first type, “[d]efendants would not violate § 1232g(b)(6)(B)
by disclosing and releasing the records Plaintiffs requested in order to comply with
the Public Records Act.” DTH v. Folt, 259 N.C. App. at 74, 816 S.E.2d at 527. With
regard to the second type, the Court of Appeals reasoned that “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,’ ” in that “[t]he plain text of
§ 1232g(b)(6)(B) permits Defendants’ disclosure of the limited information specifically
listed therein.” Id. (quoting Oneok, 575 U.S. at 377). Although in our view the Court
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Opinion of the Court
of Appeals analyzed conflict preemption unnecessarily as explained above, it
nonetheless applied the doctrine correctly in general, and Oneok in particular.
The dissent unequivocally views FERPA as preventing the operation of the
Public Records Act in the present case, opining that “[a] federal law that grants
discretion is fundamentally irreconcilable with a state law that seeks to override that
discretion.” In this analytical exercise, the dissent again begins with the fundamental
misstep that the FERPA provision of 20 U.S.C. § 1232g(b)(6)(B) is buttressed by 34
C.F.R. § 99.31 so as to establish a federally entrenched discretion for a public
postsecondary educational institution like UNC-CH which is mandatorily subject to
the Public Records Act as a state agency before the dissent is inclined to include the
state law in its contemplation. This misstep, in turn, leads to the dissent’s logical—
though erroneous due to the faulty original premise—sequential misstep that “the
federal law and state law fundamentally conflict.” Consequently, instead of utilizing
the aforementioned established tenets of statutory construction “that statutes in pari
materia, and all parts thereof, should be construed together and compared with each
other [because] [s]uch statutes should be reconciled with each other when possible,”
Empire Power, 337 N.C. at 591, 447 S.E.2d at 781, the dissent chooses to construe the
cited principles in Oneok to support the applicability of the doctrine of conflict
preemption in the instant case. Ultimately, as a result of the misapprehended
precursors, the dissent arrives at its conclusion that conflict preemption exists here,
as the principle is explained in Oneok.
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Opinion of the Court
Oneok presented an opportunity for the Supreme Court of the United States to
address the issue of whether the federal Natural Gas Act preempted state antitrust
lawsuits against interstate pipelines which would be based upon non-federally
regulated retail natural gas prices. Oneok, 575 U.S. at 376. In holding that the state’s
antitrust claims were not preempted by the federal Natural Gas Act, the high court
explained that an examination of the applicability of preemption must “emphasize
the importance of considering the target at which the state law aims in determining
whether that law is preempted.” Id. at 377. Just as the United States Supreme Court
determined in Oneok that it would not find the operation of the principle of conflict
preemption as appropriate in construing the federal law and the state law, we agree
with the overarching principle enunciated in Oneok and therefore apply it here. While
conflict preemption exists where compliance with both state and federal law is
impossible or where the state law stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress, conflict preemption does not
exist in the present case because compliance with both the Public Records Act and
FERPA is possible, and the Public Records Act does not stand as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress
regarding the governance of education under Title 20 of the Unites States Code.
Lastly, defendants’ reliance on United States v. Miami University, 294 F.3d
797 (6th Cir. 2002) to establish the existence of the field preemption aspect of the
federal preemption doctrine to this Court’s satisfaction is unpersuasive. While we
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Opinion of the Court
reiterate that the analysis which this Court elects to engage is arguably superfluous
due to defendants’ illustrated misassumptions, we choose to evaluate this remaining
feature of the federal preemption doctrine in order to address defendants’ contention
that in Miami University, “[t]he court rejected claims that the Ohio public records
law was broad and required disclosure.” However, while the Sixth Circuit Court of
Appeals acknowledged that FERPA generally shields student disciplinary records
from release, the exception to the Act’s disclosure prohibitions in Miami University
which has direct application to the instant case was viewed by the federal appellate
court in the following manner:
Congress balanced the privacy interests of an alleged
perpetrator of any crime of violence or nonforcible sex
offense with the rights of the alleged victim of such a crime
and concluded that the right of an alleged victim to know
the outcome of a student disciplinary proceeding,
regardless of the result, outweighed the alleged
perpetrator’s privacy interest in that proceeding. Congress
also determined that, if the institution determines that an
alleged perpetrator violated the institution’s rules with
respect to any crime of violence or nonforcible sex offense,
then the alleged perpetrator’s privacy interests are trumped
by the public’s right to know about such violations.
294 F.3d 797, 812-813 (2002) (emphasis added).
The federal appellate court’s ruling in Miami University clearly demonstrates
that the principle of field preemption does not apply to this case and that defendants’
dependence on its operation here is misplaced. Although FERPA is a legislative
enactment of Congress, nevertheless the public records law of Ohio was deemed to be
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Opinion of the Court
the prevailing authority where the access to information about the result of a student
disciplinary proceeding regarding any allegation of a crime of violence or nonforcible
sex offense outweighed the alleged student perpetrator’s privacy interests which are
generally protected by FERPA. In light of the strong parallels between the state
public records laws of Ohio and North Carolina, the subject matter of the disclosure
of the outcomes of the types of student disciplinary proceedings of educational
institutions located in each of the two states, and each university’s respective reliance
on the applicability of the field preemption doctrine based on a contention that
FERPA preempts the operation of such a state public records law, we embrace the
logic of the Sixth Circuit Court of Appeals. In enacting FERPA, Congress has not
forbidden North Carolina’s legislative body from taking action in the field of
education where the disclosure of the result of a student disciplinary proceeding
conducted at a public postsecondary educational institution which operates as an
agency of North Carolina is mandated by the state’s Public Records Act.
Consequently, defendants’ reliance on the principle of field preemption fails.
In the instant case, the federal preemption doctrine does not apply; therefore,
the Family Educational Rights and Privacy Act does not preempt the Public Records
Act so as to prohibit UNC-CH from disclosing the final results of any disciplinary
proceeding as requested by plaintiffs.
Conclusion
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Opinion of the Court
We hold that officials of The University of North Carolina at Chapel Hill are
required to release as public records certain disciplinary records of its students who
have been found to have violated UNC-CH’s sexual assault policy. The University
does not have discretion to withhold the information sought here, which is authorized
by, and specified in, the federal Family Educational Rights and Privacy Act as subject
to release. Accordingly, as an agency of the state, UNC-CH must comply with the
North Carolina Public Records Act and allow plaintiffs to have access to the name of
the student, the violation committed, and any sanction imposed by the University on
that student in response to plaintiffs’ records request.
AFFIRMED.
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Justice DAVIS, dissenting.
I respectfully dissent. The majority’s analysis fundamentally misapplies the
federal preemption doctrine. As discussed more fully below, the dispositive issue in
this case is whether FERPA confers discretion upon universities regarding whether
to release the category of records at issue. If FERPA does so, then the doctrine of
preemption precludes states from mandating that universities exercise that
discretion in a certain way.
The threshold question of whether such discretion exists must be resolved
solely by examining the relevant federal law, which in this case consists of FERPA
and its accompanying federal regulations. The majority goes astray in this inquiry by
instead looking to state law to determine whether discretion has been conferred. In
doing so, the majority turns the preemption analysis on its head. It simply makes no
sense to examine a provision of state law to determine whether Congress has
conferred discretion upon universities.
The essence of the preemption doctrine is that state law cannot conflict with
federal law. In this case, the specific question is whether the application of the North
Carolina Public Records Act—which, in the absence of FERPA, would require
defendants to produce these records—would be inconsistent with how Congress has
authorized universities to treat such records. Therefore, because this inquiry solely
concerns the intent of Congress, it is illogical to look to North Carolina law to
determine congressional intent. It is only once a determination has been made as to
DTH MEDIA CORP. V. FOLT
Davis, J., dissenting
whether federal law confers such discretion that it then becomes appropriate to
examine state law to ascertain whether a conflict exists between state and federal
law on the issue. But state law has no bearing on the issue of whether such discretion
exists in the first place. It is this basic error that infects the majority’s entire analysis
and causes it to reach a result that is legally incorrect.
The specific provision of FERPA relevant to this case is 20 U.S.C.
§ 1232g(b)(6)(B) (2018), which provides, in pertinent part, as follows:
Nothing in this section shall be construed to prohibit an institution of
postsecondary education from disclosing the final results of any
disciplinary proceeding conducted by such institution against a student
who is an alleged perpetrator of any crime of violence . . . or a nonforcible
sex offense, 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.
Id. (emphasis added). This statutory provision is supplemented by the following
pertinent provisions contained in regulations promulgated by the United States
Department of Education and codified in the Code of Federal Regulations:
(a) An educational agency or institution may disclose personally
identifiable information from an education record of a student . . . if the
disclosure meets one or more of the following conditions:
....
(14)
(i) The disclosure . . . is in connection with a disciplinary
proceeding at an institution of postsecondary education. The
institution must not disclose the final results of the disciplinary
proceeding unless it determines that—
(A) The student is an alleged perpetrator of a crime of
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Davis, J., dissenting
violence or non-forcible sex offense; and
(B) With respect to the allegation made against him or
her, the student has committed a violation of the
institution’s rules or policies.
34 C.F.R. § 99.31(a)(14)(i) (2019) (emphasis added).
The regulations then proceed to clarify that “paragraph[ ] (a) . . . of this section
do[es] not require an educational agency or institution . . . to disclose education
records or information from education records to any party, except for parties under
paragraph (a)(12) of this section.” 34 C.F.R. § 99.31(d) (emphasis added). Paragraph
(a)(12), in turn, applies only to the disclosure of information “to the parent of a
student . . . or to the student.” 34 C.F.R. § 99.31(a)(12).
Thus, FERPA’s grant of discretion to universities regarding the release of these
records to third parties such as plaintiffs is evidenced by the pertinent language of
the statute itself read in conjunction with the language of the accompanying federal
regulations. As quoted above, the applicable provision of FERPA states that
“[n]othing in this section shall be construed to prohibit” disclosure—language that
neither prohibits nor requires the release by universities of the category of records
sought by plaintiffs. 20 U.S.C. § 1232g(b)(6)(B). This permissive language is then
reinforced by the language of the accompanying federal regulations, which remove
any doubt on this issue. These regulations plainly and unambiguously state that a
university “may”—but is “not require[d]” to— disclose such records to parties other
than the students themselves and their parents. 34 C.F.R. § 99.31(a), (d). Thus, the
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combined effect of 20 U.S.C. § 1232g(b)(6)(B) and 34 C.F.R. § 99.31 serves to make
clear that a university has the authority to produce the records at issue upon request
by a third party if it chooses to do so in the exercise of its independent judgment.
The Supreme Court of the United States—like this Court—has made clear that
when a statute says an actor “may” take certain action, such language constitutes a
grant of discretion to that actor. See, e.g., Halo Elecs., Inc. v. Pulse Elecs., Inc., 136
S. Ct. 1923, 1931 (2016) (“[W]e have emphasized that the word ‘may’ clearly connotes
discretion.”); Jama v. Immigration and Customs Enf’t, 543 U.S. 335, 346 (2005) (“The
word ‘may’ customarily connotes discretion.”); Fogerty v. Fantasy, Inc., 510 U.S. 517,
533 (1994) (“The word ‘may’ clearly connotes discretion.”); United States v. Rodgers,
461 U.S. 677, 706 (1983) (“The word ‘may,’ when used in a statute, usually implies
some degree of discretion.”); see also Silver v. Halifax Cty. Bd. of Comm’rs, 371 N.C.
855, 863–864, 821 S.E.2d 755, 760–762 (2018) (explaining that the word “ ‘may’ is
generally intended to convey that the power granted can be exercised in the actor’s
discretion”).
Indeed, both in its appellate brief to this Court and at oral argument, plaintiffs’
counsel expressly conceded that FERPA grants discretion to defendants regarding the
release of the records sought in this lawsuit. See Pl.’s Br. at 12–13 (“In their brief
defendants argue that . . . FERPA confers them with ‘discretion’ whether to release
or withhold the records at issue. Indeed, it does . . .”) (emphasis added).
This concession by plaintiffs’ counsel is not surprising. Given the absence of
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Davis, J., dissenting
any dispute that the category of documents sought by plaintiffs in this case is, in fact,
governed by 20 U.S.C. § 1232g(b)(6)(B), there are only three possible conclusions.
FERPA either (1) prohibits universities from producing the records at issue; (2)
requires that they produce the records; or (3) allows universities to exercise their own
independent judgment over whether to produce them. Given that the majority does
not take the position that Congress has either expressly required or expressly
prohibited such disclosure, the only remaining option is the third one—that is, the
conclusion that FERPA confers discretion on universities as to whether such records
should be produced to a third party in a particular case. Indeed, at one point in its
analysis, the majority appears to recognize that discretion exists under federal law,
stating that “standing alone, a postsecondary educational institution possesses such
discretion to disclose” these records.1
Because it is clear that such discretion exists under FERPA, the only
remaining question is whether a state law such as North Carolina’s Public Records
Act can lawfully require that a university exercise its discretion in favor of disclosure.
Under the doctrine of federal preemption, the answer is no. A university must be
1 The majority also acknowledges that it is only because UNC-CH is a public
institution that North Carolina’s Public Records Act applies and therefore private
educational institutions in this state unquestionably continue to possess the discretion
granted by FERPA to decide whether to release the requested information. If there was no
conflict between FERPA and the Public Records Act, then private and public institutions
would be in the same situation. However, it is precisely because of that conflict that the
majority’s opinion results in different rules for post-secondary educational institutions in the
state, depending on whether they are public or private.
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Davis, J., dissenting
allowed to exercise its federally mandated discretion unimpeded by a state law that
seeks to eliminate that discretion.
The Supremacy Clause of the United States Constitution provides that “the
Laws of the United States . . . shall be the supreme Law of the Land . . . [the] Laws
of any State to the Contrary notwithstanding.” Art. VI, cl. 2. As a result, “when federal
and state law conflict, federal law prevails and state law is preempted.” Murphy v.
Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476 (2018). The Supreme Court of
the United States has made clear that preemption can occur not only through a
federal statute but also based on federal regulations. See Fidelity Fed. Sav. and Loan
Ass’n v. de la Cuesta, 458 U.S. 141, 153 (1982) (“Federal regulations have no less pre-
emptive effect than federal statutes.”); see also City of New York v. F.C.C., 486 U.S.
57, 64 (1988) (“The statutorily authorized regulations of an agency will pre-empt any
state or local law that conflicts with such regulations or frustrates the purposes
thereof.”).
The Supreme Court has recognized three different forms of this doctrine: (1)
express preemption, (2) field preemption, and (3) conflict preemption. Murphy, 138
S. Ct. at 1480. Express preemption occurs when a federal statute uses explicit
language indicating its intent to override state law. See English v. Gen. Elec. Co., 496
U.S. 72, 78–79 (1990). Field preemption occurs when Congress passes comprehensive
legislation intending “to occupy an entire field of regulation,” acting as the exclusive
authority in that area and “leaving no room for the States to supplement federal law.”
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Nw. Cent. Pipeline Corp. v. State Corp. Comm’n of Kansas, 489 U.S. 493, 509 (1989).
The final type of preemption is conflict preemption (also known as implied
preemption), which occurs when federal law and state law fundamentally conflict.
Conflict preemption exists when (1) “compliance with both state and federal law is
impossible” or (2) when state law “stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress.” Oneok Inc. v. Learjet, Inc.,
575 U.S. 373, 377 (2015).
The present case involves conflict preemption. A university cannot
simultaneously (1) exercise its discretion conferred by FERPA regarding whether
these records should be produced to third parties upon request; and (2) be
automatically required by state law to produce those same records on demand. A
federal law that grants discretion to universities is fundamentally irreconcilable with
a state law that seeks to override that discretion. FERPA gives defendants a choice,
while the Public Records Act gives them a command. As a result, the doctrine of
conflict preemption is directly applicable.
In asserting that the doctrine of conflict preemption does not apply in this case,
the majority misapprehends the basic inquiry in which a court must engage when
faced with a federal preemption issue. If—as here—a conflict exists between state
and federal law, the federal law must prevail. Thus, the majority’s assertion that
application of the preemption doctrine would require “erroneously elevating” the
federal law while “wrongfully subjugating” the state law is, in reality, nothing less
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than a rejection of the preemption doctrine itself.
While its opinion is not entirely clear, the majority then appears to state its
belief that—even assuming discretion does exist under FERPA—the preemption
doctrine is not triggered simply because releasing the records as mandated by North
Carolina’s Public Records Act is one of the options available to defendants in the
exercise of their discretion. But this reasoning is antithetical to the very concept of
discretion. Black’s Law Dictionary defines discretion as “[w]ise conduct and
management exercised without constraint; the ability coupled with the tendency to
act with prudence and propriety . . . [f]reedom in the exercise of judgment; the power
of free decision-making.” Black’s Law Dictionary (11th ed. 2019) (emphasis added). It
is self-evident that a law that commands a single outcome necessarily conflicts with
a separate law that grants the power of unconstrained decision-making.
Moreover, the Supreme Court of the United States has expressly rejected the
very mode of reasoning engaged in by the majority. In Barnett Bank of Marion Cty.,
N.A. v. Nelson, 517 U.S. 25 (1996), a federal statute granted national banks the
authority to sell insurance, but Florida law prohibited such banks from doing so. Id.at 27–28. The Supreme Court first noted that “the two statutes do not impose directly
conflicting duties on national banks—as they would, for example, if the federal law
said ‘you must sell insurance,’ while the state law said, ‘you may not.’ ” Id. at 31.
Nevertheless, the Supreme Court determined that the federal statute preempted the
Florida law. Id. The Supreme Court characterized the conflict as involving a federal
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Davis, J., dissenting
statute that “authorizes national banks to engage in activities that the State Statute
expressly forbids.” Id. The Supreme Court concluded that when Congress grants an
entity “an authorization, permission, or power,” states may not “forbid, or [ ] impair
significantly, exercise of a power that Congress explicitly granted.” Id. at 33.
Similarly, in Fidelity Fed. Sav. and Loan Ass’n v. de la Cuesta, 458 U.S. 141(1982), a federal regulation permitted savings and loan associations to utilize due-on-
sale clauses in contracts, but California law limited the use of these clauses. Id. at
144–145. The Supreme Court held that the state law was preempted, explaining that
the “conflict [between the laws] does not evaporate because the [ ] regulation simply
permits, but does not compel” banks to include such clauses. Id. at 155. Just as in
Barnett, the Supreme Court found it immaterial that compliance with both laws “may
not be a physical impossibility,” reasoning that the state law impermissibly deprived
the banks of the “flexibility given it by the [federal regulation].” Id. See also Lawrence
Cty. v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 260–61 (1985) (holding that
a federal law providing that counties “may use [certain specified federal] payments
for any governmental purpose” preempted a state law requiring counties to allocate
those payments to school districts; rejecting as “seriously flawed” the state’s
argument that no preemption existed simply because the funding of school districts
constituted a governmental purpose).
The same principles apply here. FERPA and its accompanying regulations
gave defendants the discretion to decide whether release of the records sought by
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Davis, J., dissenting
plaintiffs was appropriate. The Public Records Act, conversely, would—if given
effect—make the release of such records mandatory, thereby completely eliminating
the discretion conferred by Congress. Therefore, the Public Records Act cannot be
given effect under these circumstances. In short, a federal law’s “may” cannot be
constrained by a state law’s “must.”
For these reasons, I would reverse the decision of the Court of Appeals.
Accordingly, I respectfully dissent. 2
Justices ERVIN and EARLS join in this dissenting opinion.
2 It is important to emphasize that this Court lacks the authority to determine
whether the release of the records sought by plaintiffs is wise or unwise as a matter of public
policy. Congress has expressly made that determination by conferring discretion upon
universities regarding the disclosure of such information.
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