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DTH Media Corp. v. Folt: No More Implied Conflict Preemption in North Carolina?

This case will draw much media attention as it requires the University of North Carolina at Chapel Hill (“UNC”) to release records of students who were found to have violated the university’s sexual assault policy. This post will not discuss any of those real-world effects; instead, it will describe both the majority’s and the dissent’s approach to preemption analysis and how the majority’s narrow approach to federal preemption may bear on future cases. This opinion accords with the trend at the United States Supreme Court to significantly narrow the doctrine of conflict preemption—after Folt, application of conflict preemption in North Carolina state court requires that it be impossible to simultaneously comply with both state and federal law. 

At issue here was the interplay between the Family Educational Rights and Privacy Act (“FERPA”), its accompanying federal regulations, and the North Carolina Public Records Act (“Public Records Act”). There was no dispute that the records at issue meet the definition of “public records” contained in the Public Records Act and “education records” under FERPA. It was also undisputed that the Public Records Act mandated disclosure, so only preemption of the application of the Public Records Act by FERPA could prevent disclosure. 

UNC’s position was that FERPA gave it sole discretion over whether to release the requested records and that UNC is prohibited from doing so under its obligations under Title IX. The statutory basis for this discretion is 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 (as that term is defined in section 16 of title 18 [18 USCS § 16], United States Code), 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." 20 U.S.C. § 1232g(b)(6)(B) (emphasis added). See also 34 C.F.R. § 99.31(a)(14)(i) (2019) (“An educational agency or institution may disclose personally identifiable information from an education record of a student . . .”) (emphasis added). Since nothing in FERPA prohibited UNC from disclosing particular records, so the argument went, FERPA implicitly endowed UNC with discretion as to disclosure. Under UNC’s reading of Title IX, disclosure would violate those statutory obligations so UNC chose not to disclose the records and the operation of the Public Records Act could not overcome the discretion endowed by Congress in FERPA. 

The media plaintiff-appellees recognized that FERPA gives educational institutions discretion over whether to disclose records such as those implicated here. But for the media, the Public Records Act entered into the equation at that point to require UNC, as an agency of the state, to disclose the records (the same argument could not be used to compel the production of the same categories of records from a private educational institution). 

The Court sided with the media and ruled in favor of disclosure. The Court’s analysis began with reading the statutes together and determining whether they could interlock and function side-by-side. The Court accepted UNC’s position that the federal statute confers discretion upon it, but rejected the assertion that that discretion was inviolate—the Public Records Act dictates how UNC must exercise its discretion. For the Court, its statutory interpretation to allow both to function obviated the need for any preemption analysis, but it still conducted one. 

The Court adopted a narrow framing of conflict, obstacle, and field preemption. As to conflict preemption, the Court would require compliance with both state and federal law to be impossible for preemption to apply. As to obstacle preemption, the Court determined that application of the Public Records Act would not interfere with the execution of the purposes and objectives of FERPA as it interpreted those objectives. The majority also cited a Sixth Circuit opinion in rejecting field preemption on the basis that FERPA allows disclosure under certain circumstances. Under a strong reading of the Court’s opinion, conflict preemption is a shell of its former self at it only occurs when it is impossible to comply with the mandates of both state and federal law and obstacle preemption requires a similar degree of discordance, effectively rendering it null and void. 

The dissent offered a much more expansive vision of federal preemption doctrines. For the dissent, if FERPA confers discretion over the release of the records at issue then state law may not compel the exercise of that discretion in a particular manner. The analysis first looks to federal law, and only after federal law is interpreted should the court turn to state law to assess if there is a conflict. This contrasts with the majority’s approach to first see if the statutes can be read together and only then assessing potential conflict. 

For the dissent, conflict preemption should have prevented application of the Public Records Act here—“[a] federal law that grants discretion to universities is fundamentally irreconcilable with a state law that seeks to override that discretion.” The dissent cited two United States Supreme Court opinions, Barnett Bank of Marion Cty., N.A. v. Nelson, 517 U.S. 25 (1996) and Fidelity Fed. Sav. and Loan Ass’n v. de la Cuesta, 458 U.S. 141 (1982), for the proposition that states may not forbid or impair the exercise of a power Congress explicitly conferred (note that these opinions are both more than two decades old as more recent opinions tilt towards the majority’s approach). Applying that principle to this case, the dissent would hold that the Public Records Act cannot be permitted to override the discretion conferred upon UNC by FERPA. 

This case is fundamentally about what is required for conflict preemption to apply. For the majority, conflict preemption requires that compliance with both state and federal law be impossible. Here, where federal law provides three options and state law mandates one, no conflict exists and there is no preemption. This is a much narrower vision for the doctrine than the dissent espouses, which says that if federal law provides options, then state law cannot limit those options. This narrower reading of conflict preemption is a victory for textualism (and arguably federalism too), as ardent textualists like Justice Thomas have railed against conflict preemption for years as it requires divining Congressional intent from sources independent of the text of federal statutes. The voting breakdown was 4-3, so it may be unwise to draw sweeping conclusions, but the outcome does not bode well for future claims of conflict preemption in North Carolina state courts.  

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