Wednesday featured oral argument before the Third Circuit in an appeal brought by an accused student at Princeton. A week before the proceedings, and after the panel (Hardiman, Porter, Matey) was named, Princeton filed a motion (not opposed by the accused student’s lawyer) to seal the oral argument audio. The court took no action—but the audio’s posting to the Third Circuit’s website essentially mooted the motion. The court’s preference for transparency is appreciated, and there was nothing in the 61-minute oral argument (both accused and accuser were pseudonymous) that would have justified sealing.

The background: two Princeton students (identified in the record as John Doe and Jane Roe) had a consensual (at least initially) BDSM relationship involving very rough sex. The relationship appears to have been deeply unhealthy—at one point, Doe’s mother (who also knew his accuser) expressed concerns about violence against her son.

The relationship ended when Roe told Doe she had cheated on him—but shortly thereafter, Roe learned that Doe had also cheated on her. Distressed by Roe spreading what he claimed to be false rumors on campus that he had assaulted her, Doe met with a Princeton RA saying he felt unsafe and believed Roe was harassing him. The RA urged him to get counseling but did not refer the matter to the Title IX office. Roe, meanwhile, filed a Title IX report, claiming that in multiple encounters, Doe had attacked her without her consent. She included photos of her bruises and after-incident texts from Doe implying guilt. Doe then filed a counter-claim alleging abuse by Roe.

Princeton commenced an investigation and imposed a no-contact order, which both students allegedly violated. The university (which has been sued multiple times for unfairness in Title IX proceedings) used a modified form of the single-investigator model—a three-person “panel” that collected statements and evidence from witnesses and then produced a report. Under Princeton procedures, Doe couldn’t cross-examine witnesses, and no hearing occurred. The panel generated a 25-page report that found Doe guilty; Princeton denied his appeal.

Doe sued, arguing gender bias and an unfair procedure in violation of New Jersey state law. He claimed that the Princeton process was biased against him, that it had failed to consider exculpatory evidence (including tweets from Roe), and didn’t adhere to standards of fairness because it denied him a hearing with the right to cross-examination. In an opinion from Judge Brian Martinotti, an Obama nominee who has generally been unfavorably inclined toward accused students, the court granted Princeton’s motion to dismiss—in a rather cramped reading of the Third Circuit’s recent USciences opinion. Doe changed lawyers and appealed. Both parties requested that the Third Circuit seal their briefs in the case, a request the court (provisionally) granted despite the availability of the briefs before the district court.

In the USciences oral argument, Judge Matey dominated proceedings, with Judge Porter also asking repeated, tough questions of the school. Wednesday’s oral argument, by contrast, was dominated by Judge Hardiman, whose first question of Michael Bowen, Doe’s lawyer, came only 30 seconds into Bowen’s presentation.

It soon was clear that Hardiman (1) thought that Doe almost certainly was guilty, based on what he termed Doe’s “admissions against interest” detailed in the Princeton investigative report; and (2) felt that Doe’s original (sealed) complaint didn’t match up to some of the briefing before the Third Circuit.

Hardiman also expressed his concern—as in the exchange below—that Doe was basically arguing that anytime a Title IX investigator made credibility judgments in favor of the accuser, a university would open itself up to a Title IX violation.

Hardiman came back to this point in Bowen’s (extended) rebuttal, in what was clearly the best exchange of the hearing for Princeton.

The exchange with Hardiman wasn’t the only portion of the rebuttal that went poorly for Doe. Judge Porter pressed Bowen on how Doe’s complaint handled two tweets by the accuser that seemed to suggest she had made things up—was he claiming that Princeton officials had considered the tweets but improperly downplayed them, or was he claiming that Princeton officials had ignored them? “I don’t know what your allegation is,” Porter observed. And Judge Matey seemed skeptical of Doe’s state law claims, eventually getting Bowen to concede that no New Jersey state decision had required colleges to hold hearings in disciplinary matters.

Judge Hardiman, meanwhile, seemed wholly unsympathetic to the state law claims. He repeatedly pressed Bowen on whether Doe wanted the court to impose trial-like procedures on colleges and universities, and seemed unpersuaded by Bowen’s response that the court needed to ensure more robust procedural protections only in “these kinds of cases.”  

The panel did not ask about the degree to which federal pressure or pressure from Princeton students, activists, or professors might have created an atmosphere of gender bias on campus.

Judge Hardiman asked tough questions of Doe, and seemed extremely unsympathetic to Doe’s claims of innocence. Unlike in the USciences oral argument, Judges Porter and Matey also had some concerns for the accused student—Porter with the quality of the pleadings, Matey with the state-law argument.

It is, in short, not at all difficult to envision a 3-0 win for Princeton, with a Title IX section holding that the university made appropriate credibility determinations in a case where the accused student was likely guilty; and a breach of contract section holding that New Jersey law (unlike Pennsylvania) doesn’t require colleges to hold hearings, no matter how serious the charges.

That said, in his 30 minutes at the podium, Princeton’s lawyer, Stephen Kastenberg, didn’t fare any better than Bowen. His core arguments were that (a) Princeton handled the case with more than enough procedural protections; and (b) a victory for Doe would mean that “every person will be able to plead a Title IX” count. His implicit argument, detected by Judge Hardiman, was that Doe was clearly guilty and the court shouldn’t call that finding into question.

Princeton encountered trouble with the panel in three primary areas.

First: All three members of the panel essentially wondered whether the facts of this case satisfied what would have been a selective enforcement claim if the Third Circuit still used the Yusuf standard, since it seemed as if Princeton took the female’s allegation of violence against her a lot more seriously than it took the male’s allegation of violence against him, even though there was evidence in the record that each of these students might have committed violence against the other.

Here was Hardiman on that point:

And here was Matey:

And here was Porter:

Second: Two members of the panel—Matey and, especially, Hardiman—worried that the Princeton arguments relied inappropriately on summary judgment standards. Matey, for instance, pushed back when Kastenberg tried to explain away the selective enforcement issue by claiming that the record showed how Roe’s allegations were more serious than Doe’s:

Third: In what was the most interesting section of not only this oral argument but perhaps any of the other 35 oral arguments in this area before Appeals Courts, for around eight minutes Hardiman (joined at one point by Matey) pondered the appropriate standard at the most abstract level for handling Title IX motions to dismiss. This period began by Hardiman conceding the Princeton argument about a win for Doe opening the floodgates to other accused students, only to then observe, “I wonder if that’s…the necessary implication of the law.”

Hardiman’s point that a court might also need to consider the biases of witnesses seemed to take by surprise Princeton’s lawyer, Kastenberg, who countered that possible witness bias had nothing to do with university bias. When Hardiman noted that such bias might be relevant, Kastenberg retorted, “Why?”

Inviting judges to make an argument on Doe’s behalf was an . . . unusual . . . argument tactic. Both Matey and Hardiman chose to answer the question.

Here was Matey’s reply:

And here was Hardiman’s (who by this point had concluded that he, rather than Princeton’s lawyer, had asked the question):

It goes without saying that any opinion that even partially includes language about the structural shortcomings of Title IX “regimes” would be pathbreaking. Hardiman seemed to acknowledge as much later in the exchange, especially since he seemed wary of blessing a legal standard that would allow students like Doe to have viable lawsuits. “I can’t unring the bell of what’s in that report,” he told Princeton’s lawyer.

There was, finally, one Princeton admission that hung unexplored, both by the other members of the panel and then by Bowen during rebuttal. Judge Porter, as he had in the USciences case, asked a great question: what, exactly, did the state law requirement that the accused student get access to the evidence against him mean?

So Princeton was conceding that it had set up a system in which accused students not only couldn’t cross-examine adverse witnesses or observe them testifying before the panel—but they couldn’t even read the statements of the witnesses. This admission seemed to reinforce the concerns with premature dismissal expressed by Judges Hardiman and Matey—if, in fact, Princeton officials were biased on basis of gender, selectively summarizing witness statements in the investigative report would be exactly the type of behavior that could be expected, and evidence for this could only be obtained through discovery.

An opinion stressing the importance of discovery—that the district court inappropriately made fact determinations that should have been reserved for the summary judgment stage—perhaps coupled with some commentary on selective enforcement as an indication of gender bias in this particular case seems to be the likeliest chance of victory for Doe.

Unsympathetic plaintiffs very, very rarely get favorable decisions in Title IX lawsuits. And the Princeton plaintiff is unsympathetic. Moreover, while the panel seemed to be leaning toward Doe for most of the oral argument, the rebuttal went very poorly for him. On the other hand, each judge had serious reservations with at least some of Princeton’s arguments.

A Princeton win probably would be narrow—it seems rather unlikely that two members of the USciences panel would sign onto an opinion that effectively nullifies it. By contrast, given some of the points raised by the panel, a Doe win almost certainly would yield a decision of considerable importance.

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.”

This is a case, it’s worth reiterating, in which the plaintiff is John Doe, the accuser Jane Roe, student witnesses are not identified by name—and both parties’ district court briefs and the district court hearing transcript are already publicly available.

It’s certainly true that this case—like the 400-plus other federal lawsuits in this area, and the 35 appellate cases that have featured oral arguments—involves sensitive issues. But appellate arguments rarely if ever cover specific, identifying items about students. After all, as universities always maintain in these matters, federal courts ought not review the merits of the university’s decision, no matter how illogical the school’s rationale, and instead must confine themselves to analyzing whether the university’s actions might have been unfair or might have constituted gender discrimination. The fact that all 35 of the Appeals Courts to have oral arguments in this area have managed to address these matters without revealing needless private details about students involved in the Title IX process counsels strongly against Princeton’s motion.

The Third Circuit has yet to rule on the university’s motion—though it did consent (provisionally) to sealing the briefs; and given that the accused student didn’t oppose Princeton’s motion, it seems likely the oral argument audio likewise will be sealed.

Perhaps Princeton’s most troubling assertion is that “no less restrictive alternative is available” than permanently sealing the audio of the entire oral argument. This statement is, to be blunt, absurd. I’ve spent years working with the LBJ presidential recordings. There are routinely short portions of these recordings excised out (in the case of presidential tapes, with a beep) for national security or personal privacy reasons. Even if Princeton’s belief is true—that unlike the other 35 oral arguments in this area, there’s no way that oral argument in this case can occur without revealing protected private information—that problem could easily be remedied by the “less restrictive alternative” of beeping out any revealing information, rather than sealing the entire oral argument. Given that the redactions in the lower court briefs and opinion came in tiny percentages of the overall filings, it seems likely that the bulk of the oral argument—and, more critically, the questions that judges ask—would remain open.

Princeton made its request to seal the audio only after the panel—Hardiman, Porter, Matey—was revealed. Two of these judges were on the USciences panel—where the oral argument featured both Judges Porter and Matey asking detailed, impressive questions of the university’s lawyer. (I posted key excerpts from that oral argument.) A cynical person might wonder if Princeton’s last-minute desire for sealing audio relates to the possibility of avoiding embarrassment to the university.

At the end of the day, the court’s final opinion (presumably) will be made public. But recordings of the oral argument provide a helpful way both of educating the public and identifying precise concerns the judges have. In some circumstances, moreover, oral arguments seem critical to understanding the final resolution—as in the critical Doe v. Baum decision in the Title IX realm, where the university lawyer’s alienation of Judge Gibbons might explain her surprising decision to join Judge Thapar in the strongly pro-due process opinion.

In an era where federal policymakers, Congress, and the public will be debating new Title IX regulations, and as new OCR head Catherine Lhamon redeems the President’s promise to dismantle the DeVos-era regulations, it’s all the more important to prioritize the public’s right to open judicial proceedings over the potential to embarrass universities about how they have mishandled Title IX allegations. It would be distressing for the Third Circuit to move in the opposite direction.

List of accused student oral arguments before Appeals Courts

CA1 (5): BC1, BC2, UMass, Harvard, Brown

CA2 (2): Columbia, Colgate

CA3 (1): USciences

CA4 (2): UMaryland, VA State

CA5 (2): UHouston, UT-Arlington

CA6 (9): UCincinnati (2), UMichigan, Miami, Case Western Reserve, Oberlin, Denison, UKentucky, Michigan State

CA7 (3): Purdue, Columbia College-Chicago, Marian

CA8 (4): UArkansas, UMinnesota, UMissouri, Drake

CA9 (3): UOregon, Arizona State, UCLA

CA10 (2) UDenver (2)

CA11 (1): Valencia Comm. College