Federal Court Requires University to Turn Over Records of Past Investigations in Title IX Case

The Family Educational Rights and Privacy Act (“FERPA”) is a federal law that protects education records.  FERPA generally prohibits a school or university from disclosing a student’s personally identifiable information in their education record without prior consent.  Recently, a university refused to disclose records related to its prior sexual misconduct investigations, arguing that doing so would violate the involved students’ right to privacy under FERPA. A federal district court has granted the plaintiff’s motion to compel, subject to a stipulated agreement by the parties addressing notice to third parties.

The plaintiff filed a Title IX suit against his private university in Rhode Island, alleging he had been improperly disciplined based on his gender after being falsely accused of sexual assault.  The plaintiff requested “comparator discovery” of other sexual misconduct cases during discovery.  The university objected based on FERPA.  The university provided the plaintiff with a summary chart of comparators that included gender, charges, sanctions, and appeal outcomes.  The plaintiff requested the investigation report and adjudication and appeal decisions of four of the matters included in the chart and any other “related” matters.  He requested that the names be redacted, but that the genders be included

The university determined six of thirty total cases were responsive, but it again objected.  The university argued that there was a significant risk the parties could be identified even with redaction.  It pointed out there would be details regarding those individuals and their “private, sexual encounters” in the reports and decisions.  The university stated FERPA required it to make a reasonable effort to notify the student parties and potentially witnesses before disclosure.

The court determined the requested information was “broadly relevant” to the plaintiff’s claims.  To prove selective enforcement, the plaintiff would need a similarly situated comparator.  To prove erroneous outcome, he would need to show gender bias, which may include decision-making patterns.  The plaintiff argued that the summary chart was not sufficient to allow him to identify similarly situated female students to establish comparators or to investigate the existence of a pattern of bias. He also argued the university’s refusal to provide information on other cases prevented him from evaluating its decision making, rationale, credibility evaluations, and procedural history.

The university argued each case involved “unique events and circumstances.” It also argued that the requested information involved different decision makers and policies that were not in effect anymore.

The plaintiff argued the university had exclusive possession of the information and it would not be fair to expect him to predict how bias might appear without access to that information.  The court agreed.

The court also determined the request was proportional.  The plaintiff sought six of the thirty records.  He limited the request to recent cases that involved female students.  He did not ask for the students’ identifies and in fact requested redacted records.  The court pointed out the “line of inquiry is essential to the Title IX claim.” The court also noted the parties had anticipated the request when they previously sought an extension to allow for notice and an objection period pursuant to FERPA.

Although FERPA imposes a high burden on a party requesting discovery of covered records, the court concluded the plaintiff met the burden.  The court noted that FERPA allows disclosure of education records without prior consent pursuant to a court order or subpoena, if the university makes a reasonable effort to give advance notice to allow the student to pursue a protective order.

The court acknowledged the university could not disclose the records without a court order or lawful subpoena and had therefore properly refused to provide the records.

The parties disputed the length of the notice period and the language that should be used in the notice letters, but the court suggested these issues could be resolved in an informal discovery conference.

The court granted the plaintiff’s motion to compel, subject to a stipulated agreement setting forth the timing and procedures related to the notice.  The parties have subsequently entered into a stipulated agreement.

FERPA provides important privacy protections for education records, but it can prevent schools from providing information that could be relevant in a Title IX case without a court order.  If you have been accused of sexual misconduct, a skilled Washington Title IX defense attorney can help you fight to protect your rights and your education.  Schedule a consultation with Blair & Kim, PLLC, at 206) 622-6562.


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