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Our Opinion: Transparency, free speech win in NC Supreme Court battles

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The North Carolina Supreme Court supports transparency in higher education and free speech for motorists, two well-reasoned Friday rulings suggest.

A long-awaited decision in DTH Media Corp. v. Folt requires the University of North Carolina at Chapel Hill to release disciplinary records for students found responsible for sexual assault and misconduct. 

The 4-3 decision follows more than three years of legal wranglings since the Daily Tar Heel, UNC’s independent student newspaper, and the Durham Herald-Sun and Charlotte Observer sought information on the Title IX student discipline process under the N.C. Public Records Act. 

North Carolina’s flagship public university will now have to disclose which students its internal deliberative bodies have judged responsible for sexual misconduct and describe the punishments that were meted out. 

This information serves a dual purpose — it will show how seriously UNC is taking sexual assault (Are alleged violent offenders allowed to remain on campus after receiving a mere slap on the wrist?) and whether the university is providing fair hearings with meaningful due process (Are accused students disputing the decisions, and are students being exonerated in the criminal and civil justice systems only to be found responsible in campus proceedings?) 

Those questions can’t be answered without reviewing the records. Now, the public and press will have that opportunity. 

UNC argued that naming students found responsible of sexual assault or misconduct could undermine trust in the campus judicial system. But there’s already plenty of skepticism when college administrators without legal training or subpoena power pass judgment on whether a sex crime occurred. It’s long been our position that campus hearings should be subordinate to police investigations. Rapists belong in prison, not on academic probation. 

“Sunshine is the best disinfectant, and it could be the saving grace that leads to increased criminal prosecutions for college sexual assault,” the Times editorial page wrote in an April 2018 editorial about this case. 

The key dispute was whether the federal Family Educational Rights and Privacy Act, which allows disclosure of such disciplinary records, gave UNC the exclusive discretion to release or withhold them. The four-justice majority found that, notwithstanding FERPA, the university is bound by the public records law and doesn’t have discretion that the General Assembly didn’t choose to give it.

Justice Michael Morgan wrote the majority opinion and Chief Justice Cheri Beasley and Justices Paul Newby and Robin Hudson concurred. Justice Mark Davis dissented, with Justices Sam Ervin IV and Anita Earls joining his opinion. 

In a unanimous decision also released Friday, the Supreme Court found that a North Carolina state trooper didn’t have reasonable suspicion to stop a driver who gave him the middle finger on a Stanly County road in January 2017.

Trooper Paul Stevens was assisting a stranded motorist when Shawn Patrick Harris, a passenger in a passing SUV, made the rude gesture. Stevens left an Albermarle police officer to assist the stranded driver and pursued and pulled over the SUV in which Harris was riding. 

Harris was cited for resisting, delaying or obstructing an officer because he initially refused to provide his name and date of birth. At trial, he argued the trooper’s testimony should be suppressed because there was no reasonable suspicion to justify the stop. The trial court allowed Stevens’ testimony, Harris was found guilty and a divided three-judge N.C. Court of Appeals panel upheld the conviction. 

The high court found that Stevens lacked reasonable suspicion to stop Harris’ vehicle, which the state stipulated in its appellate brief. 

Federal appellate courts have ruled that raising the middle finger is protected speech under the First Amendment. North Carolina’s high court didn’t reach that issue, but its ruling doesn’t stray from those federal decisions. 

“Because we conclude that there was no reasonable suspicion for the stop, we need not address defendant’s First Amendment arguments,” Justice Robin Hudson wrote in a footnote to the unanimous opinion. 

Trooper Stevens testified that his justification for the stop was reasonable suspicion to believe Harris was committing disorderly conduct. By ruling that Stevens lacked reasonable suspicion, the high court established that this vague, catchall charge can no longer be applied to the “Bronx salute.” 

We don’t think it’s wise to flip off anyone, officer or civilian. But we acknowledge the gesture falls firmly within the bounds of free speech and can’t be subject to state punishment. 

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