Using ‘Transparency’ to Obscure: The Daily Tar Heel and UNC’s Title IX Records

“Sunlight,” Justice Louis Brandeis once wrote, “is said to be the best of disinfectants; electric light the most efficient policeman.” Few aspects of the contemporary academy more need enhanced sunlight than the Title IX adjudication process, which operates almost entirely in the dark—even going as far as not publicizing the training materials that adjudicators used before the adoption of the new Title IX regulations.

Providing only a beam of sunlight, however, can obscure as much as it reveals—as seen in recent litigation involving the University of North Carolina’s Title IX adjudication process.

In 2016, the Charlotte Observer, the Herald-Sun, WRAL, and the Daily Tar Heel (the UNC campus newspaper) filed a public records request seeking the identity of students the university had found guilty of sexual misconduct. Citing FERPA, the federal student privacy law, UNC denied the request, leading to litigation.

Wrongful findings of guilt obviously occur—too frequently—in the criminal justice process. That said, in a criminal trial, the identity of a guilty party is already a public record, since the proceedings of the trial also are public. Moreover, the defendant at least has a process in which he can claim a full range of constitutional rights.

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.

In these university “tribunals” there’s not even a pretense of due process. The accused, especially if truly innocent, typically may have no idea who the accuser is, or even if it’s a real person at all. The accused is not allowed to bring a lawyer or counsel to the proceedings (they might be able to bring an academic advisor in some situations). Even if there is an accuser, who may remain anonymous, the proceedings run as if the accused is already guilty — no presumption of innocence.

If the accused is really innocent, it doesn’t matter. The university will want to railroad that person out and avoid controversy. All the university can do is expel the student: they can’t convict them of a crime and jail them.

Most truly innocent students going through this process likely have little to no idea what their options are, what their rights are or how the process works and how it’s not true justice. By the time the university’s decision is reached and the student’s out, it’s too late and they think that they have little recourse, which is true by and large. Sure, they can sue the school, but most students when they begin to figure out what that means are probably going to opt for finding a way to put this all behind them and not seek justice in real courts.

Of course, if someone did commit a crime, then the case should be brought to a court of law, not to a university tribunal. In that case we can only hope that justice prevails and that a person found guilty of a crime in a court of law will be appropriately punished.

But in the case of a falsely accused person, the university tribunals indeed are the kangaroo courts of no law.

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