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from Smith v. Brown Universitydecided today by Chief Justice John J. McConnell, Jr. (DRI):

Plaintiff David Smith moved to compel discovery from defendant Brown University (“Brown”) regarding six prior cases in which Brown adjudicated allegations of non-consensual sexual activity by other students. It seeks third-party “educational records” as defined in the Family Educational Rights and Privacy Act…. Because the court finds the request to be appropriate, proportionate, and discloseable pursuant to FERPA…, the court grants the request pursuant to a stipulated agreement Regarding third party notification….

Mr. Smith claims he was wrongly accused of sexual assault and was inappropriately disciplined on the basis of gender. He filed a Title IX claim challenging several aspects of Brown’s internal investigative process. Mr. Smith filed an interrogatory motion seeking “comparative discovery” with respect to other sexual misconduct cases to which Brown contested, stating that disclosure would violate third-party privacy under FERPA. Instead, Brown referred it to a general report and provided a chart showing key comparisons, including the gender of the parties involved, charges, penalties, and appeals outcomes for the 2017-18 school year. This chart is provided as a confidential document subject to a protective order stipulated by the parties. Mr. Smith reviewed the chart and made a follow-up request looking for “[t]Investigation Report, Adjudication Decision, and Appeal Decision…with student names redacted, indicating gender,” for four misconduct matters identified in the scheme, plus any “relevant” matters.

Of a total of thirty cases, Brown considered six to be compliant with his request. Brown objected to the disclosure of this information, citing appropriateness, proportionality, and privacy obligations under FERPA. Brown stressed that even with the revision, there is still “a significant risk that this could happen.” [the identities of third parties] “can be discerned or known,” noting that investigative reports and decisions are likely to reveal “details of private sexual encounters between non-parties to this proceeding.” Brown noted that under FERPA, a reasonable effort was required to notify the student parties “and possibly multiple student witnesses” before disclosing the material….

The requested discovery relates broadly to Mr. Smith’s Title IX claim, which is conducted under the dual theories of “wrongful finding” and “selective enforcement.” Under the theory of wrongful outcomes, a plaintiff must cast doubt on the accuracy of the disciplinary proceedings and then “allege that certain circumstances exist” that demonstrate sex bias, including, among other things, “patterns of decision-making.” Under the selective enforcement theory, a plaintiff must show that “regardless of the student’s guilt or innocence, the severity of the penalty and/or the decision to initiate proceedings was influenced by the student’s sex.”

As this Court has previously held, proof of selective enforcement requires a comparator “of similar standing in material respects.” Mr Smith argues, persuasively, that the summary chart prepared by Brown is insufficient to ascertain whether there is a pattern of bias or whether any females at Brown are similarly situated for the purposes of establishing appropriate comparisons. He also argues that Brown’s refusal to disclose prior case information prevents him from evaluating Brown’s internal decision-making process, the rationale for its findings of fact, its process for evaluating credibility contests, the procedural history of these allegations, and its treatment of evidence generally—all areas of investigation that are at the heart of his claim for dismissal. Ninth….

As Mr. Smith noted, these files remain in Brown’s exclusive possession, and “it would be inappropriate to request them [him] “To anticipate all the ways in which bias might manifest itself in Brown’s behavior given the disparity in access to information between the parties.” The Court found this reasoning persuasive. Mr. Smith is entitled to explore Brown’s decision-making without having to guess. What’s Behind the Curtain….

The key issue, as Brown rightly identifies, is the privacy interest of third parties involved in disclosing these files. FERPA prohibits educational institutions from disclosing “personally identifiable information” in a student’s records without prior consent. As Brown points out, even redacted disclosure poses a risk to third parties given the detail and volume of information potentially contained in these files.

Other courts have noted that FERPA places a “greater burden” on the party seeking discovery of educational records. Mr. Smith has shouldered this burden for the reasons stated above. It is important that the parties take reasonable steps, in order to allow full litigation, to protect the interests of individuals who are not a party to the case.

Fortunately, FERPA provides a legal framework to deal with this issue. FERPA’s “litigation exception” permits disclosure without prior consent if the disclosure is pursuant to a court order or lawful subpoena, provided that the institution (here, Brown) makes a reasonable effort to notify the parent or student in advance so that they can request a protective request…. [P]Personal information will already be redacted, and further concerns may be addressed by a motion to seal….

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