by Mitch Kokai
Senior Political Analyst, John Locke Foundation
KC Johnson writes for the Martin Center about misuse of transparency in UNC Chapel Hill’s dealings with the campus newspaper.
“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.
Such protection isn’t much, but it’s better than nothing.
In the end, the North Carolina Supreme Court, on a 4-3 vote, required UNC to reveal the names of those students it had found guilty in Title IX cases.