Is An Academic Pet Project Worth Destroying A Kid’s Life?

When a private party, and his private law firm, are engaged in motion practice, one of the concerns that influences their tactics is that every motion comes with a cost. Lawyers have to work on it, and they want to get paid because of that whole “kids wanna eat dinner again tonight” problem. That means litigants have to pay their lawyers, and they don’t come cheap. In deciding whether to pursue a case, the cost of doing so is one of the most serious considerations.

Not so for prawfs. They can throw a skunk into whatever garden party catches their eye without worrying for a moment that they won’t get that sweet university paycheck. They win, they get paid. They lose, they get paid.

That their effort are causing a burden on a litigant, and his law firm, who is constrained to take time and attention away from the underlying cause of action to deal with whatever collateral mental masturbation the prawf is indulging in for his own pet interests is of no concern. While the prawf is playing for shits and giggles, real lives are at stake for real people from academics with no skin in the game.

And as Eugene Volokh explains, it’s all about vague, generic nonsense that could destroy the lives of innocent students over nothing.

In Doe v. U.N.C. Sys. (W.D.N.C.), a case challenging the expulsion of plaintiff Jacob Doe for alleged sexual assault, the court issued a quite remarkable TRO last week: It, among other things,

1. required defendants “to direct all individuals”—including UNC students—”over whom they exercise control to refrain from publishing or disclosing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings,” and
2. required defendants “to inform any media outlet, or any other third party, that receives information concerning the Plaintiff’s disciplinary outcome about the filing of this motion for a temporary restraining order and preliminary injunction, and notifying such media outlets or other third party, that they are prohibited from publishing any information concerning the Plaintiff, the disciplinary proceedings, or the outcomes of such proceedings.”

This strikes me as likely unconstitutional, because of its substantive scope, because it was entered as an ex parte TRO with no opportunity for the defendants to be heard, and because it purports to restrict the free speech rights of third parties who also had no opportunity to be heard. But when I tried to figure out why the court entered such a broad restriction, I couldn’t, because the motion for the TRO and the supporting memorandum were sealed. And when I tried to figure out the basis for the sealing, I couldn’t, because there was no official sealing order authorizing and explaining the sealing (even though the W.D.N.C. local rules seem to require such sealing orders).

The underlying case is a Title IX and § 1983 case brought by the pseudonymous plaintiff  against the University of North Carolina for his expulsion. No clue what the underlying Title IX claim was about, and no clue what UNC did to the plaintiff. But for plaintiff to seek, and for this court to grant, a TRO is highly unusual, Whatever is at risk here, it must have been extremely egregious or this wouldn’t have happened.

Is it possible the “fix was in” and the judge is really the plaintiff’s uncle and violated the law and his oath by granted a baseless of improper TRO? It’s possible. So are space aliens living amongst us. But the presumption of regularity prevails, and so we presume the basis for the relief as extreme enough to justify an extreme remedy such as a TRO, and that there is grave risk of irreparable harm to this student without this relief.

Does Volokh care?

In this case, records that this Court relied upon to fix the substantive rights of the parties—and of non-parties whose constitutional rights are burdened by the temporary restraining order (TRO)—remain secret. If “unusual circumstances” exist to justify this deviation from the norm of transparency, these circumstances have not been disclosed to the public. There is no publicly available order explaining why certain judicial records are currently under seal. Accordingly, Intervenors respectfully move to unseal [the motion for the TRO and supporting memorandum, and any papers related to sealing] …. Unsealing is necessary to protect Intervenors’, and the public’s, right to “judge the product of the courts in [this] case.” Columbus–America Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 303 (4th Cir. 2000).

Cause the very harm that the relief was granted to prevent for the earth-shattering purpose of allowing Volokh to “judge the product of the courts” and make sure it meets Eugene’s approval? There is a judge who was nominated by a president and confirmed by the Senate who gets to decide whether the petition for the TRO has merit, and then there are more judges nominated by presidents and confirmed by the Senate who review the decision on appeal. And there is another party, in this case UNC, who can challenge the ruling if it finds it improper, although the university may have some inkling of what it did to give rise to such extreme relief and think better of doing further harm to an innocent student.

But to fight this motion which seeks to air all the things that are both now under seal and whose purpose is to prevent the very damage that public airing will do to an innocent student, will suck up an enormous amount of scare resources from the plaintiff, who didn’t ask to be falsely accused, unfairly “convicted” and have his life destroyed by a baseless expulsion, and then have some dilettante law prof from the left coast decide to make the case one of his causes célèbre for kicks.

Did you care about this case beforehand? Would you care about this case otherwise? Will you be better of knowing what happened at the cost of wreaking havoc with an innocent plaintiff’s only opportunity to undo the damage by this outrageously prejudiced subconstitutional campus inquisition? But hey, who gives a shit about some innocent kid whose life is ruined when a prawf can indulge his academic pet project?