This year’s overhaul of the state’s open government laws may have an unintended consequence—upending a 19-year precedent requiring Georgia universities to make student disciplinary hearings open to the public.
Lawyers for the University of Georgia and Georgia Attorney General Sam Olens are trying to determine whether the new law allows the school to close student disciplinary hearings from the public, said Nels Peterson, solicitor-general for the Law Department.
An article last week in The Red & Black, a student-run newspaper in Athens, reported the university’s Office of Student Conduct cited the new Open Meetings and Open Records acts as justification to close its hearings for students charged with violating conduct regulations.
Arthur Leed, associate director of Legal Affairs at UGA, would not confirm whether the university has closed its student disciplinary hearings but wrote in an email that the university is “consulting with the attorney general on whether they should be open.”
“We have made no final decisions and are consulting with the AG on the proper course of action on all the open meetings issues,” he added.
Student disciplinary hearings have been open to the public since March 1993, when the state Supreme Court ruled in Red & Black Publishing Co. v. Board of Regents, 262 Ga. 848, that the university’s student court was subject to the state Open Meetings Act and that its records were subject to the Open Records Act.
“This ruling forced the doors and files open to the public, not only on the campus of the University of Georgia, but also on campuses all over the state,” according to a history of the University Judiciary on the Office of Student Conduct website.
Olens this year successfully lobbied state lawmakers to overhaul the state’s open government laws to reorganize and clarify the laws pertaining to records and meetings by eliminating duplications and contradictions, as well as codifying recent case law. The new laws also heightened financial penalties against public officials or bodies that violate the laws.
But the interaction between federal law and the state’s new Open Meetings Act has changed in such a way that may allow UGA student disciplinary hearings to be closed despite the state’s high court ruling.
Under O.C.G.A. § 50-14-3(b)(4), the new state law allows a government agency to close portions of meetings in which officials are discussing a document that is exempt from public disclosure under the Open Records Act, and “there are no reasonable means by which the agency can consider the record without disclosing the exempt portions if the meeting were not closed.”
The state Open Records Act exempts a slew of documents from public inspection. O.C.G.A. § 50-18-72(a)(37) exempts documents that are exempt under certain federal programs, including the federal Family Education Rights and Privacy Act (FERPA), which generally protects the privacy of student educational records.
A congressional amendment to FERPA in 1998 clarified that student disciplinary records are exempt. But Congress added that postsecondary institutions may disclose the final results of any disciplinary proceedings in which they find a student has committed a crime or nonforcible sex offense.
Administrators with UGA’s Office of Student Conduct declined to discuss the reported closure of disciplinary hearings with the Daily Report and referred all questions to Leed with Legal Affairs.
Leed, who is an attorney, did not return calls for comment but did say via email: “The University of Georgia works very closely with the Office of the Attorney General and we will follow their guidance on all issues related to the new state Open Meetings and Open Records acts (House Bill 397). Clearly HB 397 does not specifically ‘overturn’ any case. In regard to release of records we agree with the AG that HB 397 means that UGA must follow FERPA. Concerning Open Meetings, we are in the process of discussing with the AG the implications of the new act on student disciplinary hearings at UGA.”
Peterson said the AG’s office and UGA see “eye to eye on the records issue” but added that the AG’s office has not taken a position on whether disciplinary hearings should be open or closed to the public.
Frank LoMonte, executive director of the Student Press Law Center, said the disciplinary hearings should remain open.
“At times, very serious crimes are being funneled into [universities'] disciplinary systems that would be treated as felonies and handled in open court if they had happened at any other place,” LoMonte said. “It’s dangerous to public safety and public accountability to maintain a system of secret courts where crimes can be whitewashed without a paper trail.”
LoMonte, a UGA law graduate who practiced at Sutherland, Asbill & Brennan, also said the original intent of FERPA was to protect students from profiling by restricting the sharing of school records with other government agencies.
“In the 1970s, students were subjected to psychological and aptitude tests and those types of records might fall into the hands of law enforcement and be used to the child’s detriment,” LoMonte said. There was also growing concern that records of students’ college activities “might result in their being profiled by law enforcement as potentially dangerous people. That’s why it’s so ironic that FERPA has been manipulated over the years to be an anti-public disclosure statute.”
However, LoMonte said there is not debate that disciplinary records are FERPA-protected records.
“But FERPA does not negate the necessity of open meetings,” LoMonte cautioned. “Until there is a clear overruling of the Red & Black [high court] decision, the university is disobeying the decision at their grave peril.”