Judge rules against UNC-CH in media’s lawsuit (updated with Thorp’s statements) (2nd update with legal analysis)


Full article.

During the last month or so, the decision was made that our UNC-CH football scandal coverage would yield the field in favor of more important things.  Now that the basketball coaching situation has been settled and spring football practice is over, however, you can expect SFN to jump back on the UNC-CH football story.  Included will be some recap articles covering things that broke during the dark period.

Today we learned that:

The University of North Carolina-Chapel Hill withheld documents that should have been provided to The News & Observer in response to an open-records lawsuit filed by a consortium of media groups led by The N&O and The Charlotte Observer against the university, Wake County Superior Court Judge Howard Manning ruled Tuesday.


Still to be decided is one major area of the lawsuit, which is the request for all documents relating to investigations into the UNC football program. Manning and the lawyers for both sides agreed at Friday’s hearing that it was necessary first to decide the three other areas of dispute — phone records, parking tickets and tutor identities.

For you legal types, here is the complaint.

WRAL posted a story with additional detail that included quotes from UNC-CH chancellor Holden Thorp.

“We are disappointed with the court’s apparent interpretation of the Family Educational Rights and Privacy Act (FERPA) as it applies to student records related to phone numbers and parking tickets,” said UNC chancellor Holden Thorp. “This has far-reaching implications for all of our students and their records that we believe federal law protects. When the judge’s instructions are finalized in an order, the University will review the ruling and evaluate its options for appeal.”


In trying to educate myself on this FERPA issue, I ran across some very interesting sources of information. You absolutely must read this PDF of a Ferpa-related discussion by The Student Press Law Center. This paper is dead on point on discusses the rather lengthy expose done The Columbus Dispatch regarding Ohio State’s circumvention of Public Information Requests via FERPA. You absolutely should read the whole paper as it specifically addresses the application, or rather misapplication, of FERPA to athletic-related investigations.

Some excerpts from the above-linked Student Press Law Center paper to peak your interest:

When FERPA has been raised as an obstruction to journalists’
requests for public records, the courts have overwhelmingly applied a
narrow, common-sense reading of FERPA that covers only academic
and disciplinary records, or records of that nature, that directly identify
students. Nonetheless, many schools and colleges continue operating
under the oversimplified shorthand that if a document names or
refers to a student, it is a FERPA record, without exception.

In an award-winning 2009 investigative series,61 reporters Jill Ripenhoff
and Todd Jones of the Columbus Dispatch documented the
misuse of FERPA by college athletic departments to withhold records
that fall well outside the Senate sponsors’ definition of records “used
by the institution in making decisions that affect the life of the student.”
The reporters encountered dozens of instances in which public
universities refused to release – or released only in heavily redacted
form – such documents as the passenger lists of football team flights,
recipients of complementary football tickets, and correspondence
with the NCAA regarding potential compliance violations.
The long history of well-documented excesses has led to calls for
FERPA reform. Following the Columbus Dispatch series, U.S. Sen.
Sherrod Brown, D-Ohio, wrote to the Department of Education urging
the agency to issue rules clarifying and narrowing the scope of
FERPA secrecy. “It is important that the public have confidence in the
integrity of our higher education system, which requires a measure of
transparency in reporting violations of the rules,” Brown wrote.62 As
of September 2010, neither the Department nor Congress has moved
to narrow or clarify FERPA, and the abuses continue.

My take on the information shared in the above-linked paper is pretty simple. That link is interesting in that most of the courts cited have significantly limited the scope of protection of FERPA. The OTHER interesting thing is that schools are not mandated to withhold releasing information, but rather the Feds can withdraw funding if they violate the terms. In other words, a university can release anything they want if they don’t mind possibly losing out on federal funding. So FERPA is not a mandate on school, it’s akin to the Feds using funding to dictate drinking ages, BAC levels on state DWI statutes, etc. Essentially, this the Federal government using money to override state laws (Freedom of Information Act) for whatever federal govenment interest.

It appears that over time schools have morphed the law into a shield when information could be detrimental… a la the UNC/FSU athletic scandals.

The kicker…. and here’s the real kicker in these FERPA-related cup-and-ball street games being used by Universities with something to hide. Guess how many times the Federal government has withheld federal funding to a University for violation of FERPA?

No, no. Guess again.

That’s right: never. Never! Never not once. Upon information and belief, the Feds have only sent barely over a 100 letters to schools saying they violated FERPA. Based on what we can find, the worst damage ever incurred by a University via the heavy hand of the federal government is to receive a letter stating the potential violations and a request to correct policies to become compliant.


Another exception to FERPA’s general prohibition against disclosure authorizes campus personnel to share information from student education records with other “school officials” who have “legitimate educational interests” in the information. Again, the act poorly defines who qualifies as a “school official” and what constitutes a “legitimate educational interest.” Recent guidance from the Family Policy Compliance Office (FPCO) offers some clarity. According to the

FPCO model definition, a “school official” is:

1. A person employed by the University in an administrative, supervisory, academic or research, or support staff position (including law enforcement unit personnel and health staff);
2. A person or company with whom the University has contracted as its agent to provide a service instead of using University employees or officials (such as an attorney, auditor, or collection agent);
3. A person serving on the Board of Trustees; or
4. A student serving on an official committee, such as a disciplinary or grievance committee, or assisting another school official in performing his or her tasks.

Looks like to me if the BOT or the BOD asked for this information, UNC could NOT hide behind FERPA even as they have misconstrued the law. There is an exception for other “school officials” with a “legitimate educational interest.”

Why hasn’t the BOD made an effort to get to the bottom of this issue. Don’t they want all UNC system students to receive proper and equal access to benefits and advantages? Don’t they have a “legitimate educational interest” in seeing that all UNC System students are getting a proper education devoid of cheating, financial influence, etc?


When can campus administration or faculty have access to school police records?

If FERPA allows campus police and security to access student records, does it also allow school and college administrators and faculty to access campus police records? In fact it does: FERPA expressly does not apply to – and does not prohibit the disclosure of – records maintained by a school’s law enforcement unit. Like other terms in FERPA, which are defined broadly, “law enforcement unit” simply means the person, office or department authorized or designated to enforce laws or maintain the security and safety of the school.

While law enforcement records are accepted from FERPA’s reach, the exception only applies to records that (1) are created by a law enforcement unit, (2) are created for law enforcement purposes and (3) are actually maintained by the law enforcement unit. All these elements must be present in order for law enforcement records to be exempt from FERPA restrictions.


When Anson Dorance was sued by a former player for sexual harassment, Title IX violations, etc., UNC attempted to use FERPA to release certain documents and deposition statements “under seal”. The plaintiff in the matter failed to take a stance on Defendant UNC’s motion to seal certain documents, so the court addressed the matter on its own accord. The reading is legalese at its finest, but the point is UNC has been shot down on this issue before.

See Jennings v. UNC-CH, 340 F. Supp. 2d 679 (2004).

In a nutshell, the Federal court (U.S. District Court, MD NC) followed the nation-wide, longtime lean to err on the side of disclosure stating a dicta-like test of “reasonable expectations of confidentiality.” The important language to be taken therefrom discusses what is and what is not an “educational record.” The M.D.N.C, like most, narrowly defined that which is an “educational record.” This case ultimately got beaten all over the court system for several years before Plaintiff Jennings prevailed to the tune of something close to three hundred bills.

UNC Scandal

27 Responses to Judge rules against UNC-CH in media’s lawsuit (updated with Thorp’s statements) (2nd update with legal analysis)

  1. CannonballJunior 04/19/2011 at 3:07 PM #


    Still to be decided is one major area of the lawsuit, which is the request for all documents relating to investigations into the UNC football program. Manning and the lawyers for both sides agreed at Friday’s hearing that it was necessary first to decide the three other areas of dispute — phone records, parking tickets and tutor identities. ________________________________________________________________________

    Wonder how long this will take?

  2. Old MacDonald 04/19/2011 at 3:21 PM #

    Interesting, so far I don’t see anything up from WRAL on this. I guess the UNC SID has not written anything for them yet.

  3. Rochester 04/19/2011 at 3:46 PM #

    The comments on the N&O site are funny. Poor Carolina fans. It’s so unfair. Boo hoo.

  4. bradleyb123 04/19/2011 at 5:08 PM #

    I bet the NCAA will hurry and render their decision (which will probably be a smack on their wrists) before anything new and relevant is exposed by this.

    The parking tickets thing… what is the relevance of that in all this? Are we interested in that because it could bring to light that Carolina players have been allowed to drive nice vehicles free of charge (most likely from a Michael Jordan dealership?)? And further, that would be an NCAA violation?

  5. bradleyb123 04/19/2011 at 5:09 PM #

    And if there are parking tickets, will they be tied to players? Or just to the vehicles that were ticketed? If that’s the case, it would seem to me that it would be hard to prove any monkey business was going on between the players and local dealerships.

  6. tuckerdorm1983 04/19/2011 at 5:15 PM #

    apparently the judge is not a UNX grad. Now the judge could be like me. B.S. NCSU 1987 J.D. UNC 1990 Ph.d UNC 1994. I love the school (UNC) but I hate the fans and the athletic department. Bunch of smug so and sos.

  7. mwcric 04/19/2011 at 5:32 PM #

    Can any of you with legal backgrounds enlighten me on these record request lawsuits? Every time I hear of something like this, I just wonder why the defendant doesn’t simply destroy all the records. Yes, I know that’s illegal, but if the defendant is already involved in an illegal activity, what’s to stop him – why would he care? And assuming he adequately destroyed all requested documents, what recourse would the plaintiff or court have? In this instance, shy couldn’t UNC’s athletic department pull an Enron and shred/incinerate everything, and then tell the judge “Gosh, we looked all over for the documents and darn it, we just can’t find them!”
    Am I just being naive and oversimplifying the situation? Any thoughts would be appreciated.

  8. ringo 04/19/2011 at 5:52 PM #

    ^I’ve wondered the same thing. I’d be willing to bet no damaging information that would really hurt their program would ever see the light of day. Can you imagine Thorp and Baddour just handing over the info knowing how far they’ve taken this charade already? What if there was some bball info there. IMO it’s a pipe dream to think there will be something devastating come from this.

  9. Pack78 04/19/2011 at 6:34 PM #

    ^The phone records should also exist with the provider and the tutor and parking tickets will reside in unx offices; if they get ‘lost’, then the ‘invisible cloak’ comment by Manning comes to the fore and, in the words of Sheriff Buford T. Justice, Manning will be lookin’ to barbecue somebody’s ass…

  10. bradleyb123 04/19/2011 at 6:56 PM #

    I’m not sure they want to compound their problems (which are not LEGAL problems) by adding an “Obstruction” charge to the list. Hopefully they wouldn’t be so brazen as to burn records that the court system has ordered them to release.

  11. 61Packer 04/19/2011 at 8:02 PM #

    If UNC football does get punished, we’ll all be old by the time it happens.

  12. Clarksa 04/19/2011 at 8:04 PM #

    The judge graduated from both a UNC-CHeat undergrad and law school…

  13. choppack1 04/19/2011 at 8:18 PM #

    Holden continues his scorched earth policy. They must really have something to hide.

  14. Wolfy__79 04/19/2011 at 8:23 PM #

    i don’t think unc will be punished that much at all! i’m most interested in what they are guilty of? i think they should shut the program down completely and take the basketball with them but i just don’t see it happening. please tell me it’s true that a mj dealership is so wise as to have their bball players riding for free.. sounds like a dream scenario to me!

    “The intent of the penalties is to ensure they are sufficient enough to deter schools from breaking the rules again. Unfortunately, some sanctions – like the ban on postseason competition – are deterrents but also negatively impact innocent student-athletes. While unfortunate, NCAA-imposed sanctions are meant to be punitive.”


    ^have you all read the ncaa’s page on rules enforcement? it’s right here above! reading this gives me confidence that if there was any foul play..then these guys won’t be getting any special treatment.

    thank you sfn for your due diligence on this subject! i cannot stand what has been going on even beyond my young 31 years.. and certainly appreciate all you all due to keep the peeps informed!

  15. GAWolf 04/19/2011 at 8:43 PM #

    Judge Manning is as fair-minded and honorable as they come.

  16. timberwolf 04/19/2011 at 9:11 PM #

    Tucker here is looking to you

  17. MatSci94 04/19/2011 at 10:39 PM #

    If I remember correctly, the issue with the parking tickets was to find out if the cars were registered to the players, or to someone else (like a booster, or the dealership).

  18. bradleyb123 04/20/2011 at 7:27 AM #

    Thorp said (or wrote), “This has far-reaching implications for all of our students and their records that we believe federal law protects. When the judge’s instructions are finalized in an order, the University will review the ruling and evaluate its options for appeal.”

    To me, that is simply doublespeak for “we’re going to fight this tooth and nail with every ounce of our being.”

  19. Texpack 04/20/2011 at 8:13 AM #

    Tom Penders was essentially fired at Texas for a FERPA violation by one of his assistant coaches. They faxed out a player’s grade report, something clearly intended to be protected, after the kid had announced his intention to transfer to Kansas. That’s the worst violation of FERPA I’ve heard of in athletics.

    I will remind everyone again that the obstruct, delay, deny, and claim this is old news strategy is coming from Erskine Bowles playbook. It is how they handled scandals in the Clinton White House and he knows he can eventually get to the point where the masses are tired of hearing about it and will stop paying attention.

    Personal Rant – The FERPA law really pisses you off if you’re a parent paying your kid’s tuition and the kid has to sign a release in order for you to see any of their records.

  20. Sw0rdf1sh 04/20/2011 at 10:02 AM #

    Thorpe should want to fight it tooth and nail.

    There is a good chance once everything gets tossed on the table to peruse he will be left wanting.

    …..and without a job.

  21. Wufpacker 04/20/2011 at 11:18 AM #

    “It is important that the public have confidence in the
    integrity of our higher education system, which requires a measure of
    transparency in reporting violations of the rules,”

    Honorable goal, but hasn’t that ship pretty much sailed?

    And regarding the Thorp quote that bradley posted, that’s not even doublespeak. He is clearly saying that when the judge rules, rather than comply with the ruling we WILL appeal it. It’s not even a matter of “IF it’s unfavorable, then we’ll appeal it”. I know it’s their legal right to appeal whatever decision is handed down, but he is obviously anticipating an unfavorable (for them) ruling.

    To me, this speaks volumes.

    My question is how does this affect the NCAA investigation? Were any of these records (involved in the FERPA suit) available to the NCAA even though they haven’t yet been released as part of the public records request? I realize the NCAA has no legal standing per se, but they don’t usually like it when a school stone-walls them.

  22. Hungwolf 04/20/2011 at 11:33 AM #

    Hard to imagaine with a great chance at another Bball championship coming up that Woody Durham would choose now to retire. Since his retirement announcement coincides with the Judge’s ruling, makes one wonder why he stepping down now?

  23. golf76 04/20/2011 at 11:55 AM #

    If the news outlets win this case, you can bet when the information is released, someone at UNX, in an attempt to help out the media, will have highlighted all the relevant information. Of course they won’t realize until the job is finished, that they’ve used a black marker!

  24. PackerInRussia 04/20/2011 at 2:49 PM #

    “This has far-reaching implications for all of our students and their records that we believe federal law protects.”

    I bet it does Holden. Probably something along the lines of the truth seeing the light of day.

  25. Hungwolf 04/20/2011 at 2:51 PM #

    Any documents that are relevant will never be found. Erased, destroyed, stolen, or they don’t have staff to gather the documents. I’ll be amazed if anything relevant is ever relased/found. Either that or documents will be made available to media outlets that pay someone to find and gather them, and what you bet not one media outlet will pursue the documents. of course if will be months before the attorneys get an order in writing is my guess. Someone should change the law that allows attorneys to do judicial orders anyway.

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