The Volokh Conspiracy
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Discovery of Comparator Incidents Available in Title IX Wrongful-Discipline Cases
A good illustration of how this principle can work.
From Smith v. Brown University, decided today by Chief Judge John J. McConnell, Jr. (D.R.I.):
Plaintiff David Smith has moved to compel discovery from Defendant Brown University ("Brown") related to six prior cases in which Brown adjudicated allegations of nonconsensual sexual activity involving other students. He is seeking third-party "education records" as defined by the Family Educational Rights and Privacy Act …. Because the Court finds that the request is relevant and proportional and can be disclosed in compliance with FERPA …, the Court GRANTS the motion subject to a stipulated agreement as to third-party notice….
Mr. Smith alleges that he was wrongly accused of sexual assault and improperly disciplined based on gender. He has filed a Title IX claim challenging numerous aspects of Brown's internal investigation process. Mr. Smith served an interrogatory request seeking "comparator discovery" regarding other sexual misconduct cases to which Brown objected, stating that disclosure would violate the privacy of third parties under FERPA. Instead, Brown referred him to a public report and provided a chart outlining key comparators, including the gender of the parties involved, charges, sanctions, and outcomes of appeals for the 2017-18 academic year. This chart was provided as a confidential document subject to the parties' Stipulated Protective Order. Mr. Smith reviewed the chart and served a follow-up request seeking "[t]he investigation report, adjudication decision, and appeal decision … with student names redacted, but genders indicated," for four misconduct matters identified in the chart, as well as any "related" matters.
Of thirty total cases, six were deemed by Brown to be responsive to his request. Brown objected to disclosing this information, citing relevance, proportionality, and privacy obligations under FERPA. Brown stressed that even with redaction, there remains "a significant risk that [the identities of third parties] could be discernable or known," noting that investigation reports and decisions would likely reveal "details of private, sexual encounters between non-parties to this litigation." Brown indicated that under FERPA, it was required to make a reasonable effort to notify student parties "and possibly numerous student witnesses" before disclosing this material….
The requested discovery is broadly relevant to Mr. Smith's Title IX claim, which proceeds under twin theories of "erroneous outcome" and "selective enforcement." Under an erroneous outcome theory, a plaintiff must cast doubt on the accuracy of the disciplinary proceeding and then "allege particular circumstances" showing gender bias, including, inter alia, "patterns of decision-making." Under a 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 the proceeding was affected by the student's gender."
As this Court has previously held, proving selective enforcement requires a comparator who is "similarly situated in material respects." Mr. Smith argues, persuasively, that Brown's summary chart is insufficient to investigate whether a pattern of bias exists or whether any females at Brown are similarly situated for the purposes of establishing appropriate comparators. He further argues that Brown's refusal to disclose prior case information precludes him from evaluating Brown's internal decision-making, its rationale for findings of fact, its process for evaluating credibility contests, the procedural history of these claims, and its treatment of evidence generally-all areas of inquiry that go to the heart of his Title IX claim….
As Mr. Smith notes, these files remain in Brown's exclusive possession, and "it would be inappropriate to require [him] to predict all the ways bias might manifest itself in Brown's conduct given the disparity of access to information between the parties." The Court finds this reasoning to be persuasive. Mr. Smith is entitled to explore Brown's decision-making process without having to guess at what is behind the curtain….
The key issue, as Brown rightly identifies, is the privacy interest of third parties implicated by disclosure of these files. FERPA prohibits educational institutions from disclosing "personally identifiable information" in a student's records without prior consent. As Brown notes, even redacted disclosure poses a risk to third parties given the detail and volume of information that is likely to be in these files.
Other courts have noted that FERPA establishes a "higher burden" for the party seeking discovery of educational records. Mr. Smith has met this burden for the reasons outlined above. It is paramount that in allowing him to fully litigate his claims, the parties take reasonable steps to protect the interests of individuals not party to this case.
Luckily, FERPA provides a statutory framework to navigate this issue. FERPA's "litigation exception" permits disclosure without prior consent if disclosure is pursuant to a judicial order or a lawfully issued subpoena, provided the institution (here, Brown) make a reasonable effort to notify the parent or student in advance so they may seek a protective order…. [P]ersonal information will already be redacted, and further concerns may be addressed through a Motion to Seal ….
