Justice Louis Brandeis famously said, regarding government procedures, “sunlight is the best disinfectant.” It’s hard to disagree with that when it comes to truly governmental procedures — but what about the quasi-governmental adjudications against students under Title IX? How much transparency is proper in those cases?
That’s the issue in a recent battle between UNC’s school paper, The Daily Tar Heel, and the University of North Carolina. Students at the paper wanted to know the identities of all students who had been found guilty of Title IX violations. The university declined, so the paper sued and in a 4-3 decision, the North Carolina Supreme Court sided with the DTH.
In today’s Martin Center article, professor KC Johnson, who has done more than anyone to shine light on the abuses of Title IX, looks into this case and finds the outcome troubling.
In criminal trials, the accused has a wide range of protections under the Constitution. But, Johnson writes, “In a campus tribunal, by contrast, the entire process occurs outside of public view. Before the implementation of the new Title IX regulations in August, perhaps the most meaningful protection for an accused student was the fact that guilty findings do not become public information. (There’s a reason why accused students who subsequently sue their schools almost always file as ‘John Doe.’) While such a finding will require even a wrongly accused student to notify any future school or employer who uses a background check, at least a Google search won’t reveal his name. Such protection isn’t much, but it’s better than nothing.”
At least it used to be.
The editors at the DTH are joyful about the opportunity to name names of students who were found to have committed violations. Alas, Johnson observes, “The idea that UNC procedures might have led to wrongful findings of guilt—including among those whose identities it now possesses—never seems to have crossed the minds of DTH editors, despite UNC using procedures during much of the period covered by the paper’s lawsuit that hardly could be deemed particularly fair.”
Johnson, a history professor who has so immersed himself in this aspect of the law that he knows it better than most lawyers, points out that the same issue arose in a case that was decided by the Sixth Circuit in 2002 (before the worst of the Title IX regulations came along), and that court chose not to require disclosure of names.
He concludes, “In the abstract, there’s nothing wrong with a system in which a university must identify guilty parties. But if identification is now part of the process in North Carolina—and, thanks to the state Supreme Court’s decision, it is—the university has an obligation to do everything it can to ensure that its decisions are correct.”