KC Johnson (Academic Wonderland) reported Sunday:
For the past six years, every United States Court of Appeals (outside of DC and the Federal Circuit) has filed at least one oral discussion of an accused student in a Title IX case. The Sixth Circuit – with nine oral arguments – led the way; there were a total of 35 oral arguments.
These arguments did not occur in a vacuum. Before 2012, this had been a sleepy area of the law: two Second Circuit decisions, one Sixth, a handful of district court decisions. But the 2011 Dear Colleague letter revolutionized Title IX policy, prompting colleges to tilt their procedures in favor of the prosecutors and producing a wave of litigation (457 federal lawsuits and counts) from accused students. The resulting legislative body eventually supported new federal regulations requiring colleges to provide accused students with stronger procedural protections.
Each of these cases concerned sensitive issues: allegations of sexual assault or other forms of misconduct, which often included additional evidence (texting, university investigative reports, student testimonies) that touched on other sensitive issues in the lives of both the accuser and the accused. . But in each of the 35 times a student accused of a Title IX case went before a Court of Appeals for oral debates, the courts respected the principle of judicial openness: oral pleadings and audio debates were open to the public.
Until now. On Wednesday, the Third Circuit will hear oral discussion in an appeal involving a Princeton University student. Little distinguishes this factual case from the many other accused student lawsuits, including many other lawsuits against Princeton. The university found the accused student guilty after a trial that denied cross-examination, between campus and national pressure for further finding guilty. The student, like John Doe, south. Slip in case I’m publicly available, with very minor revisions. The transcript of the oral discussion on the Princeton motion of rejection it is publicly available, with very minor revisions. And the opinion of the district court, which has a narrow view of how the third circuit is pioneering University of Sciences opinion defines what constitutes gender discrimination under Title IX and fairness under state law – it is publicly available.
The student filed an appeal. Contrary to the proceedings before the district court, the student requested that his or her opening letter be sealed, with no accompanying written notes. (The Third Circuit tentatively accepted the request, without explanation, subject to a final decision by the motions committee.) Princeton also requested that its letter be sealed, without a drafted version.
It is worth reiterating that the pleadings of both parties before the district court remain publicly available, in slightly obscured form. Of the 35 oral arguments of the students accused before the courts of appeal, none have had sealed pleadings. (Sealed exhibitions, of course, they’re routine in this industry.) It’s unclear why the Third Circuit – if it felt additional privacy beyond the John Doe designation was needed – simply didn’t require minor revisions in the memoirs.
Last week, Princeton went even further, submit an unchallenged request that the audio and transcription of the oral argument be permanently sealed – and that the court decision is provisionally sealed. The Princeton brief argued that “the forthcoming oral discussion may refer to certain information that this Court and the lower court have previously established should be kept confidential.” …
But like him noticed today, the audio of the oral discussion was published and unedited (read both posts for many more details).