Will High Court Allow 'Double Secret Probation'?

By Corey Friedman

October 10, 2020 5 min read

Should public colleges be able to keep records from their secretive Title IX tribunals under lock and key, or do students have a right to know when their classmates are found responsible for sexual misconduct?

The U.S. Supreme Court could answer that question once and for all if justices agree to hear the University of North Carolina's appeal of a state high court ruling that forced school officials to name names.

UNC petitioned the Supreme Court to review the case Sept. 28, the Daily Tar Heel student newspaper reported. University officials framed the issue as a conflict between state public records law and the federal Family Educational Rights and Privacy Act, or FERPA. Yet FERPA expressly allows schools to identify students disciplined for sexual misconduct and describe the punishments they received.

If colleges have discretion, university attorneys argue, administrators should be able to refuse requests. But as a state university, UNC is subject to North Carolina's public records law. The North Carolina Supreme Court ruled that colleges can meet their confidentiality obligations under FERPA and their disclosure obligations under state statutes.

In August, the university released records on 15 student disciplinary cases: 10 involving sexual assault or sexual violence, four involving sexual misconduct and one case of nonconsensual groping. The Daily Tar Heel reported on those cases and their outcomes, but so far, it has withheld most students' names.

"One of the big questions that we had going into the lawsuit was, 'Is UNC holding anyone accountable?' and I think the answer that we got yesterday was 'Hardly anyone in all these years,'" Jane Wester, a former DTH editor-in-chief, told the independent student paper.

Only one student was expelled. The other 14 received suspensions of varying lengths and other intermediate punishments.

Without a valid legal argument to hide the records, UNC is relying primarily on a public policy pitch. The Supreme Court should weigh in, the university says, because confidentiality may encourage victims and witnesses to participate in the Title IX process, and naming those found responsible could inadvertently identify survivors.

Those reasons, or excuses, are irrelevant to a case that turns on the interplay between state and federal law.

"Even though one of the courts ruled against us and two ruled in our favor, they all unanimously agreed that why the university wanted to withhold this information was of no importance here," Hugh Stevens, an attorney for the Daily Tar Heel, told the newspaper. "The only question was, 'Can they legally do it?'"

UNC is wasting taxpayer money on endless appeals because some survivor advocacy groups are sympathetic to college officials' desire for secrecy. But the public might be inclined to ask why administrators are passing judgment on sexual assault claims to begin with.

Notice that students are found "responsible" rather than "guilty." That's because universities are not courts and lack the authority to issue criminal or civil judgments. The harshest punishment a college can mete out is expulsion, and most campus discipline falls far short of that.

Following misguided federal guidance on Title IX, American colleges are in over their heads where sexual misconduct is concerned. Panels are tasked with weighing allegations without forensic evidence, subpoena powers or perjury penalties. Many cases hinge on testimony. It's largely a he-said, she-said affair.

The result is sham trials overseen by kangaroo courts where the innocent can be judged "responsible" and those guilty of serious crimes are let off with a slap on the wrist — a suspension, a switched class, academic probation. If a student really is a rapist, such lenient consequences are a mockery of justice.

Title IX hearings can run parallel to law enforcement investigations, but colleges that want to keep their crime statistics low have an obvious incentive to stress the former process over the latter, discouraging victims from calling police.

Releasing records of these often-farcical campus hearings will rally victims and advocates against insufficient punishments and give the wrongfully accused more motivation to clear their names in a real courtroom when their due process rights are violated.

Sunshine is the best disinfectant, and it could be the saving grace that leads to increased criminal prosecutions for college sexual assault.

Corey Friedman is an opinion journalist who explores solutions to political conflicts from an independent perspective. Follow him on Twitter @coreywrites. To find out more about Corey Friedman and read features by other Creators writers and cartoonists, visit the Creators webpage at www.creators.com.

Photo credit: andrew_t8 at Pixabay

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