Unfortunate Sealing Motion in Third Circuit

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

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