The Complexity of Transparency

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We talk about transparency as if disclosure is always a good thing. Of course, that isn’t true. The problem of disclosure is vastly more nuanced than that and three recent examples suffice to show vast complexity of the issues. Once the nuances are recognized, we are see that solutions are not one size fits all. And, it all starts with recognizing WHY we want transparency. And we can then be better evaluators of when and how to apply transparency.

Here’s the basic “why for transparency and the values that undergird it. Start here: We want consumers to be able to make wise choices. We want them to understand that for which they are paying to make sure pricing is fair and not rigged or otherwise the subject of collusion. Think airlines when the person next to you could have paid $175 dollars less than you (or more than you). We want to know if something we purchase is dangerous. We want companies who do not hide risks (think Boeing) or who intentionally subvert the truth (Colleges that overstate their graduation or employment rates).

We also want to protect, on the other side, personal privacy. Privacy matters for individuals in a myriad of situations — healthcare, criminal situations like rape and incest, domestic abuse, victim statements and whistleblowing. On the other hand, we are willing to abandon personal privacy if it puts others at risk; think about the lists of those who are pedophiles.

Now three examples that show this complexity in action.

First, there was a recent effort by a company called EDMIT (and supported apparently by InsideHigherEducation in terms of willingness to publish their work) that wanted to disseminate a list of colleges that faced closing and the anticipated date of closure. They were relying on data that is publicly available but resoundingly criticized and incomplete. IPEDs (the source of much of what is on their to be released list) is dated, lacks certain key information on students (including whether they transferred and graduated from elsewhere and whether transfer students entered a school) and fails to account for items like quality. It is a numerical calculation — without more. But, what numbers appear present an incomplete picture. Then, there is this reality: the proposed list would inhibit changes, innovation and creativity and management changes — because once the prediction is out there, the death bell has rung for the listed colleges. And what a consequence that has on individuals and communities. And who pray tell can predict the future — five or ten years down the road? It is almost reckless to try that in any field, let alone survival of a college (or a person). Do doctors predict the year you will die of cancer?

See this article for reference:https://bryanalexander.org/future-of-education/the-most-dangerous-report-in-higher-education/

Second, there was an article in the Wall Street Journal (among other publications) describing the effort of the Trump administration to get hospitals to disclose the “secret” (non-transparent) rates they negotiate and then contractually have with insurers. And what a kerfuffle that suggestion has had. What would the disclosure accomplish?

Well, it is unclear what it would do for patients but among hospitals, it would allow them to see what their competitors negotiated with insurers and enable those institutions with higher rates to try to get a better rate. And, the question is whether the reductions (let’s not hope increases) would trickle down. A professor at Yale has argued that it would narrow the band of prices but not necessarily lead to the same results in all locations. Whatever the value of this rule, still debatable in my mind, it is NOT going to harm patient well being and hospital survival. If anything, smaller hospitals may be able to get better rates as I see it. Hospitals fighting this may be those with a competitive advantage. Time will tell.

See this article for reference: https://www.cnbc.com/2019/11/15/trump-releases-rule-requiring-hospitals-and-insurers-to-disclose-negotiated-rates.html

Third example has to do with the rights of victims and the accused on campuses, particularly in the context of sexual abuse. We know that victim right statements read in an open courtroom can be done anonymously — with the real victim not disclosing her/his name. In a recent example, a woman who had not disclosed her identity when giving her statement at sentencing to the court has now disclosed her name: Chanel Miller. But, the reason for the disclosure is NOT because a court or the accused demanded it. It is because she wanted to own her past and share her experience, as evidenced in a book she wrote aptly titled, Know My Name.

In the context of campus assaults, some accused of sexual violence have asked that their names be kept secret until they are adjudicated, given the negative impact on them of being accused. Some accused want to know and see and confront their victims at a hearing on campus (consider who sits on these disciplinary hearings, another topic altogether). Sports figures who are accused of sexual abuse face similar issues: their name is associated with a bad set of acts and even if innocent, they cannot get their reputation back. This remains a controversial issue, particularly when protecting accusers on campus may silence victims even more than they are already silenced. Yes, we need to give Due Process but how much transparency does that require?

See this article for reference: https://www.latimes.com/local/education/la-me-california-universities-title-ix-20190215-story.html

Here’s my point: these three examples show the complexity of transparency, and they ways in which it plays out in vastly different contexts. To say we favor transparency is a vapid statement. It matters when transparency is sought and for what reason. We need to think carefully before we say that what justifies a particular law or rule or procedure is protection of transparency and that is enough. It isn’t that simple. It never was and with social media, it is even harder now.

But here’s a rule of thumb as one wrestles with these issues: ponder what rule protects those who need protection the most and consider who is most damaged by transparency. If needed, balance the two. If you ask and then answer these questions, one can get closer to rules that have justification, quality application and fairness. And, particularize the examples…. if my daughter, my son, my husband, my wife, my professor, my student, my patient, my doctor…..

Bottom line: just saying “Be Transparent” isn’t a slogan with meaning.

Written by

Author, Educator & Commentator; Former President, Southern Vermont College; Former Senior Policy Advisor, US Dept. of Education; Former Law Professor

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