UO lawyers want to out anonymous plaintiff in sexual misconduct case

I’m posting this for the record, I don’t pretend to understand it all. Like many universities, UO’s GCO pulls out FERPA when they want to avoid disclosing unpleasant info, for example when athletes are accused of assaults. But in this case UO’s hired attorneys are in favor of transparency and naming names.

The gist is that UO is being sued by John Doe, a student who was suspended by UO for alleged sexual misconduct with student Jane Roe. He prevailed in Lane County court on the argument that UO didn’t follow its student discipline procedures and/or that those procedures were flawed. Now it’s a federal case.

There’s something about herpes too. He wants a protective order from the court allowing him to sue UO anonymously. UO lawyers Amanda M. Walkup and Lillian Marshall-Bass have responded with this argument, which if accepted by the court will obviously make that more difficult, and discourage other such lawsuits:

On August 22, 2017, Plaintiff John Doe filed his Motion to Proceed Under Pseudonym and Incorporated Memorandum of Law (“Motion”). To the extent Plaintiff’s Motion also “seeks a protective order in aid of the Court’s ruling that would prohibit Defendants and their agents from disclosing the identities of John Doe or Jane Roe, except as may be necessary to defend this lawsuit[,]” (Motion at 2.)

Defendants respond that Plaintiff must file an appropriate motion for protective order pursuant to Fed. R. Civ. P. 26(c) and Local Rule 26-4 “show[ing] with respect to each particular material or category of materials that specific prejudice or harm will result if no order is granted” (LR 26-4). Further, a protective order “that would prohibit defendants from disclosing John Doe’s or Jane Roe’s identities to third parties, except as may be necessary to defend this suit” (Motion at 10) would be overly broad to the extent it purports to restrict Defendants’ lawful disclosures of information outside the context of this lawsuit. See, e.g., 34 C.F.R. 99.31 (certain disclosures exempt from FERPA consent requirements).

The docket with links to the complaint and arguments etc is here.

And for contrast, in the unrelated federal case filed by former UO Ed School Professor Chixapkaid Donald Michael Pavel against UO, where he alleges UO didn’t follow its faculty discipline procedures regarding his employment termination for alleged sexual misconduct, and/or that those procedures were flawed, Amanda M. Walkup’s successful argument in favor of a protective order for the student is here, with the complete docket here.

There’s also Jane Doe’s successful lawsuit against Duck basketball coach Dana Altman, docket here. Her lawyers also asked for a protective order allowing her to proceed anonymously. Apparently UO lawyers on that case did not object, and federal Judge Michael McShane approved the order the next day. As I recall one of Altman’s players’ attorneys did disclose Jane Doe’s identity during their sequent lawsuit against UO, but that was quickly purged from the record, with the cooperation of UO.

Judge tells UO to cease and desist using FERPA to hide documents

UO’s Public Records Office has argued that the Federal Educational Records Protection Act (FERPA) requires them to redact the names of students from public records they release – even when the names are already public, such as lists of committee members. The Student Press Law Center has fought this sort of practice for years, and has a good guide to the law here.

UO also claims that FERPA prevents them from releasing the names of students and details of the complaint, when complaints by students are used against faculty and staff. Here is an example of the redacted report provided to a professor by AAEO Director Penny Daugherty, about a complaint filed against them (which was determined to be unfounded). The green redactions indicate parts UO redacted under its interpretation of FERPA:

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Last year UO’s SEIU staff union filed an unfair labor practice complaint against UO over this use of FERPA in staff discipline cases. SEIU took the cases to arbitration, and UO refused to show the union all the documents related to the student complaints. Last month Oregon Administrative Law Judge Martin Kehoe ruled against UO. The full ruling (which has to go through another step before becoming final) is here. The gist is after the break: UO’s definition of “an educational record” is too broad.

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