Virginia Lawyers Weekly//July 18, 2023
Virginia Lawyers Weekly//July 18, 2023//
Where a former student alleged his dismissal from a university was for discriminatory reasons, the university must produce educational records about misconduct of other students so that the court and plaintiff can determine if the other students are valid comparators against.
John Doe brings claims for racial discrimination, disability discrimination and defamation arising out of Doe’s enrollment in, and ultimate dismissal from, Shenandoah University’s Physician Assistant program. Before the court is Doe’s motion to compel discovery from Shenandoah University, or SU.
The crux of the parties’ dispute over the other students’ educational records is whether the comparator chart prepared and produced by SU contains enough information for Doe to fully develop his claims (and respond to SU’s asserted defenses) that SU discriminated him because he is African American and/or because he is disabled.
The court finds that the comparator chart does not contain enough facts about any student’s alleged misconduct, or SU’s response thereto, for Doe (or the court) to determine if the student is a valid comparator for Doe’s Title VI, ADA or § 504 disparate-treatment claims. If these missing facts exist, they will be found in the student’s educational records themselves. Thus, Doe has shown the records belonging to students 2-11 and students 13-15 are discoverable because they contain nonprivileged, factual information relevant to Doe’s prima facie claims of racial or disability discrimination.
SU does not explain why “[i]t would exceed the scope of Rule 26 to open up confidential student files under these circumstances, as such an intrusion would be neither relevant nor proportion[al] to the needs of the case.” That assertion seems to follow SU’s primary argument that Doe doesn’t need to review the other students’ records because the comparator chart that SU prepared for Doe contains “all the information,” he needs to determine if “any comparators exist” to support his claims that SU discriminated against him. The court has already rejected that argument.
Second, SU argues that Doe has provided “no compelling” reason for “unmasking student identities and pouring [sic] through their confidential education records” in this case. It cites no authority suggesting that Doe must make a heightened showing before he can obtain the students’ otherwise discoverable records.
Moreover, SU bears the burden to show why it should not have to produce those records, in a manner consistent with FERPA, in response to Doe’s request. Only 14 students’ records are at issue here. SU does not explain why it would be “burdensome [for] the University” to send FERPA notices to those students or to produce the records in SU’s custody.
Finally, SU urges the court to deny Doe’s motion because the students’ records will contain new “after-acquired” information that “would not be relevant or admissible” in evidence to prove Doe’s “hostile learning environment” theories of liability. But “relevancy in discovery is broader than relevancy for purposes of admissibility at trial” and “[i]nformation within this scope of discovery need not be admissible in evidence to be discoverable.” This is not a reason to deny Doe’s motion to compel SU’s response to RFP No. 23. Accordingly, Doe’s motion to compel will be granted with respect to students 2-11, 13-14 and 15.
Doe’s RFP No. 31 asked SU to produce “[a]ny and all audio and visual recordings of Doe taking the OSCE on (a) November 18, 2020[;] (b) November 20, 2020 and (c) February 19, 2021.” SU produced video of the Feb. 19, 2021, OSCE, but it did not produce a recording of Doe’s performance on either OSCE in November 2020. Doe now seeks a court order requiring SU “to produce the audio-video recording of Doe’s November 20, 2020, OSCE [or], if unable to do so, [to provide] detailed evidence as to its destruction.” SU responds that Doe’s retake of the OSCE on Nov. 20, 2020, was not recorded because that exam took place “in the lab, which was not outfitted with cameras.
The court agrees that SU cannot produce a video that never existed. But SU’s statements leave some questions about whether the Nov. 20, 2020, OSCE was recorded. Thus, for SU to properly and completely respond, it must supplement its response and state (1) how the four faculty members appeared remotely, (2) whether that remote appearance was recorded, (3) whether the recording exists or ever existed and (4) if the recording no longer exists, what happened to it.
Plaintiff’s motion to compel granted in part, denied in part.
Doe v. Shenandoah University, Case No. 5:21-cv-00073, June 26, 2023. WDVA at Harrisonburg (Hoppe). VLW 023-3-362. 25 pp.