As it currently stands, basically all of the records involving SA’s Judicial Council are confidential. Section 7 of the Judicial Procedure states that “The proceedings, minutes, and other documents of the Judicial Council shall be considered confidential property of the Judicial Council, and cannot be released.”
In practice, this means that judicial hearings are closed to anyone not directly connected to a case and that those who know about it can’t say anything except for the outcome. By outcome, I do not mean the opinion.
For instance, Jeffery Bacon, a representative for TU for Bernie Sanders, was able to tell the club’s members that the Judicial Council did not rule in their favor, but he couldn’t share any part of the one or two page opinion that explained why the Judicial Council ruled the way that it did.
Such a strict policy should require a compelling justification. However, I couldn’t find one. In contrast, there are several good reasons to have an open court system.
One of the reasons cited for the confidentiality is the desire to uphold the reputation both of SA and of the parties involved. Keeping the proceedings confidential would keep any sort of defaming statements made during the hearing from becoming public. Also, since the Judicial Council has the power to review elections, it could become the theatre in a political food fight.
While SA has a legitimate interest in addressing these issues, they are hardly compelling reasons for a universal gag rule. If an SA official does something in violation of SA’s governing documents, it’s only right that it be known publicly. If the violation was done maliciously or recklessly, he deserves to have a hit to his reputation.
I’m not convinced that defamation would be a major issue, though. While the Judicial Procedure is extremely broad, it still only covers the actual judicial process. It doesn’t prevent someone from talking about the case before the hearing. I find pre-hearing rumors far more likely to occur than someone doing so at the hearing itself.
Even if one is concerned about defamation at the hearing though, changing the policy would allow the victim to respond better. It would bring light into the process that would better enable the recognition of a bad actor.
For a similar reason, fear of political food fights is misguided. An open process would provide a greater incentive not to bring petty or frivolous suits. As it stands, someone can do so in secret, but an open process would mean that someone could face ridicule from the student body for bringing such a suit.
The fear of political food fights also ignores that many of the cases of the Judicial Council are institutional in nature. SA President Whitney House said that, of the cases she’s aware, there were cases involving elections, the power of the Vice President to reschedule a Senate meeting, the President’s line-item veto and a club charter. The latter three all relate directly to the institutional workings of SA. Their nature rises above mere personal battles in that the student body has a tremendous interest in knowing how its student government operates.
A totally different reason for the confidentiality is concern about FERPA requirements. FERPA is a law that requires universities to keep student academic records, which include things like transcripts, enrollment and disciplinary actions, to be kept private. This would be a compelling reason if SA was involved with FERPA issues, but it isn’t.
Yolanda Taylor, the Dean of Students, provided The Collegian with this statement: “Student Association proceedings generally are not considered academic records… The Student Association can implement specific policies governing judicial cases but, again, the proceedings are not protected by FERPA. As it stands, no party in the case can talk about the decision or the proceedings. However, this is not a FERPA requirement.”
In contrast to the inadequate reasons for the confidentiality, there are many good reasons to support more transparency. One of them is for the benefit of the Judicial Council itself. By not having the opinion be public, people are left to guess at the Judicial Council’s motives. It’s unable to explain itself. If someone suspects ill-motives as to an opinion, there is no way to see if perhaps the Judicial Council had some good points.
Another reason is for the benefit of Senate and the President. Each year the President appoints justices and the Senate confirms. While one can infer the outcome of many proceedings, one can’t actually know how the justices voted. If one justice consistently offers absurd or malicious legal opinions, there would be no way to know.
Theoretically, a justice could have written an opinion based solely on personal reasons, and neither Senate nor the President would know.
Ryan Lane, an associate justice, wrote, “If we expect Senate to make an informed decision when justices are up for re-confirmation every year, how can they do so if they aren’t privy to the decisions that the Judicial Council makes? I think shrouding the workings and decisions of the Judicial Council in needless secrecy serves to benefit no one and is a disservice to the idea of a transparent Student Association.”
Another reason, already touched upon, is for the benefit of students. Students deserve to know how their government functions. For instance, in the TU for Bernie Sanders case, there were mentions of IRS policy as a justification for the decision.
The only mention of the IRS in any of SA’s governing documents has to do with “the IRS standard mileage rate.” Must organizations now familiarize themselves with the tax code? Not totally. The IRS justification was about TU retaining its non-profit status.
Institutions can lose it if they do anything that could be interpreted as supporting a particular candidate. Still, if this is a new standard, albeit one that has no basis in SA’s governing documents, students should be aware that they now have to look at both SOC and some IRS guidelines.
One more reason for more transparency is that the judicial procedure appears to be partly unenforceable. People involved in a hearing do not sign a confidentiality agreement. When asked if SA would take any action against a non-SA official who violated the Procedure, Whitney House said no. Rules that remain on the books but that have no potency serve no real purpose and unnecessarily threaten students.
TU for Bernie Sanders representative Morgan Krueger (full disclosure: she is also The Collegian’s Editor in Chief) said, “it was strange that I wasn’t allowed to tell my club members most of what happened. That I wasn’t able to talk about what I witnessed and said in the meeting was very strange, and made me rather uncomfortable.”
Secret courts with confidential proceedings have a tendency to make people feel uncomfortable.
GOC will consider changing the Judicial Procedure soon. Ideally, almost all of the confidentiality rules would be repealed. A good reform would be to allow hearings to be open to other students and The Collegian.
The most important thing, though, is that judicial opinions and proceedings be open to discussion. If GOC does believe that confidentiality might be needed in the future, it could always make it possible to conceal the opinion after a request is made by one of the parties involved and if a majority of the justices agree to concealing it. Transparency should be the default, though.