Read the decision:
Order to Disclose Campus Advisor Records
The US District Court for the Northern District of New York has just ordered Syracuse University to hand over the records of a campus “advisor” who gave procedural advice to the complainant in its Title IX proceedings after the judge found that portions showed the disciplinary proceedings were “procedurally unfair and biased against male students.”
The plaintiff, “John Doe,” is represented by attorney Michael Thad Allen of Allen Law LLC.
Syracuse expelled John Doe after a campus court hearing in which he was not allowed to know what his accuser said about him and was never allowed to cross-examine her — something that is now illegal under current Title IX regulations.
After suing Syracuse, John Doe’s attorneys uncovered evidence that Syracuse’s “counseling” office had worked with its Title IX Office to talk complainants into bringing cases against fellow students. In this role, they did not really act as counselors so much as recruiting officers for Title IX complaints.
If you believe you are a victim of sexual misconduct on campus, this should be alarming. Students who turn to the counseling office for support should expect their counselor to put their interests first and to address their psychological needs, not privilege Syracuse’s policy initiatives and the desire of its Title IX Office to increase prosecutions.
This undermines the role of therapy. Therapy should focus on helping and treating students. Instead, the therapists of Syracuse’s so-called Sexual and Relationship Violence Response Team apparently sought (and likely still seek) to influence students to bring complaints, meritorious or not. The “counselors” then turn around and do double duty as procedural “advisors” in the campus courts, telling the alleged victims this is all about “emotional support” when it is actually about helping Syracuse prosecute the accused.
Once in litigation, John Doe asked for the records of this “advisor,” but Syracuse refused. Syracuse first claimed that these records were protected by the Family Educational Rights and Privacy Act (FERPA). FERPA both ensures the privacy of student records from others but also guarantees students access to their own records. Since all disciplinary records directly concern each student involved, any advisor records concerning accusations against John Doe are as much his student records as anyone else’s. Syracuse quickly lost on this argument and abandoned it.
Syracuse next argued that the records were subject to HIPAA protections, the law similar to FERPA that applies to medical records. At the same time, however, Syracuse had to admit that campus treatment records are exempt from HIPAA, so this did not protect them either.
Undeterred, Syracuse next claimed the documents were protected by the New York Mental Hygiene Law, which protects the confidentiality of treatment records unless a court orders their disclosure after balancing their relevance to a party’s claims against the interest in patient privacy. Syracuse lost this argument too.
As Judge Brenda Sannes (an Obama appointee) pointed out, however, all of Syracuse’s flip-flopping avoided the federal law most relevant to the case: the federal psychotherapist-patient privilege. This did not matter to Syracuse, which continued to make the same argument that all of the records had to be kept secret from John Doe.
Syracuse lost on this argument and must now give John Doe the records.
Where a campus “advisor” apparently convinced the student to bring her complaint to the Title IX Office, any privilege was waived because the student intended to disclose the information to others, beyond therapy. Or the documents and notes oriented towards the quasi-criminal prosecution of John Doe were not “therapy” in the first place. Or both.
Although Judge Sannes ordered records purely related to therapy withheld, all other records must be handed over. The therapist privilege does not protect them. John Doe can now use them to prove that Syracuse is biased against male accused students.
Syracuse’s biased and unfair procedures have already given rise to a cascade of lawsuits. In June (in another case), Syracuse’s student newspaper The Daily Orange requested that the court unseal a spreadsheet prepared by Syracuse documenting its record of allegations and adjudications of sexual misconduct cases in its campus court, which Syracuse had been fighting to keep secret since October of last year. Syracuse has now lost that battle to keep its Title IX campus court record secret as well.
Throughout his case, John Doe made clear that he had no interest in the therapy records of his accuser. He just wanted the records of her campus advisor. Syracuse argued that this would forever interfere with the counseling of alleged victims on campus.
To the contrary, John Doe argued in court that Syracuse has wrongly muddled the roles of treatment and discipline on campus. This phenomenon has led to campus courts being overturned by the federal judiciary in other cases as well. Not only accused students but alleged victims should be very suspicious of counselors and administrators who are subordinated to the Title IX Office by schools like Syracuse. The Siren call of “we offer emotional support” often means “we will groom you for the Title IX Office prosecutors and investigators.”
Independent mental health care providers off campus can provide confidential therapy with far more robust protections of privilege and confidentiality (and they are less likely to be policy-driven by campus bureaucrats). Victims should also seek the advice of experienced attorneys, who can extend the attorney-client privilege over confidential communications as well.
It is ironic in John Doe’s case that Syracuse has always had access to his advisor’s records. Syracuse assigned a student conduct officer to serve as John Doe’s “advisor” rather than a “therapist.” Syracuse does not recognize John Doe’s advisor records as somehow privileged or confidential (his “advisor” was neither a lawyer nor a therapist). For Syracuse, the argument that “therapists” can shield university records in its campus courts from the eyes of the law is an argument that only counts for complainants. But Syracuse will clearly use whatever evidence from John Doe’s advisor, its own employee in the Title IX Office, against him.
So this is also a lesson for accused students. Anyone involved in a campus disciplinary proceeding who relies on college officialdom does so at his or her peril.
The attorney-client privilege can shield confidential communications from discovery, if necessary, in a court of law, but more immediately students need to keep their communications from the prying eyes of the biased campus bureaucracy.