The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
KC Johnson (Academic Wonderland) reported Sunday:
Over the past six years, each U.S. Court of Appeals (outside of D.C. and the Federal Circuit) has featured at least one oral argument by an accused student in a Title IX case. The Sixth Circuit—with nine oral arguments—has led the way; there have been 35 oral arguments overall.
These arguments haven't occurred in a vacuum. Before 2012, this had been a sleepy area of the law—two decisions from the Second Circuit, one from the 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 accusers and producing a wave of litigation (457 federal lawsuits and counting) from accused students. The resulting body of law ultimately supported new federal regulations requiring colleges to give accused students more robust procedural protections.
Each of these cases dealt with sensitive issues—allegations of sexual assault or other forms of misconduct, often involving additional evidence (text messages, university investigative reports, student witness statements) touching on other sensitive issues in the lives of both accuser and accused. But in each of the 35 times an accused student Title IX case has gone before an Appeals Court for oral argument, courts have respected the principle of judicial openness: briefs and oral argument audio have been open to the public.
Until now. On Wednesday, the Third Circuit will hear oral argument in an appeal involving a student at Princeton University. Little distinguishes this case factually from the many other accused student lawsuits, including multiple other lawsuits against Princeton. The university found the accused student guilty after a process that denied cross-examination, amidst both campus and national pressure for more guilty findings. The student, as John Doe, sued. Briefs in the case are publicly available, with very minor redactions. The transcript of the oral argument on Princeton's motion to dismiss is publicly available, with very minor redactions. And the district court's opinion—taking a cramped view of how the Third Circuit's pathbreaking University of the Sciences opinion defines what constitutes gender discrimination under Title IX and fairness under state law—is publicly available.
The student appealed. In contrast to proceedings before the district court, the student requested that his opening brief be sealed, without any accompanying redacted brief. (The Third Circuit provisionally granted the request, without explanation, subject to a final decision by the motions panel.) Princeton likewise requested its brief be sealed, without a redacted version.
It's worth reiterating that both parties' briefs before the district court remain publicly available, in slightly redacted form. Of the 35 accused student oral arguments before Appeals Courts, none have featured sealed briefs. (Sealed exhibits, of course, are routine in this area.) It remains unclear why the Third Circuit—if it felt additional privacy was needed beyond the John Doe designation—did not simply request minor redactions in the briefs.
Last week, Princeton went even further, filing an unopposed request that the oral argument audio and transcript be permanently sealed—and that the court's decision be provisionally sealed. The Princeton brief maintained that the "forthcoming oral argument is likely to refer to certain information that this Court and the lower court previously determined should be kept confidential." …
But as he noted today, the oral argument audio was posted, and without redaction (read both posts for many more details).