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University’s student records discoverable

Nick Hurston//July 31, 2023

Medical staff performing CPR on dummy

University’s student records discoverable

Nick Hurston//July 31, 2023//

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A university must hand over educational records about other students to a former student so he can determine if they are valid comparators to prove his claims of racial and disability discrimination, according to a ruling from the Western District of Virginia.

Last year, U.S. District Judge Thomas T. Cullen denied the university’s motion to dismiss in “Student’s defamation claims against university survive dismissal” (VLW 022-3-283).

Now, U.S. Magistrate Judge Joel C. Hoppe has overruled the university’s objections to the plaintiff’s request for records of 14 students who were dismissed. Hoppe said the university’s comparator chart didn’t provide enough details and the request wasn’t overly burdensome.

“[The plaintiff] has shown the records belonging to students 2-11 and students 13-15 are discoverable because they contain nonprivileged, factual information relevant to [his] prima facie claims of racial or disability discrimination,” Hoppe wrote.

The opinion is Doe v. Shenandoah University (VLW 023-3-362).

The dismissals

John Doe was born in in Nigeria and is now a permanent U.S. resident. He enrolled in the Physician Assistant Studies Program, or PA program, at Shenandoah University, or SU, in July 2018.

When his GPA dropped below 3.0, Doe notified SU that he was disabled with social anxiety disorder. SU approved his requested accommodations for extra time to take exams in a quiet, distraction-free environment.

Two weeks later, Doe learned that SU dismissed him due to his GPA. Doe said dismissal was warranted under the student handbook only when a student earned a “D” or “F” or when their GPA was below 3.0 for two consecutive semesters. Neither applied, he contended.

SU allowed Doe to remain subject to automatic dismissal if he didn’t achieve a 3.0 GPA by the end of the semester. Doe’s GPA only reached 2.93; SU again dismissed him.

Doe argued that other students had been offered more extensive remediation, such as a non-African American student who he believed was reinstated and offered more support despite repeated academic difficulties.

SU granted Doe’s appeal on the condition that he receive a 3.0 GPA by the end of the semester. Doe’s GPA increased to 3.076 but SU dismissed him for failing a portion of the Objective Structured Clinical Exam, or OSCE, in November 2020.

Despite soon passing that OSCE portion, SU dismissed Doe anyway.

Doe appealed and was readmitted subject to automatic dismissal if he failed the OSCE. Rather than being held quiet and disturbance free, Doe said the February OSCE was conducted in a “non-standard testing environment.”

Specifically, the OSCE was held in an open lab segmented by curtains with live and remote evaluators; Doe characterized those distractions as debilitating.

Doe failed the February OSCE. He alleged that SU gave a better OSCE retake environment to a non-African American student who passed.

Doe appealed his dismissal and cited the university’s failure to provide testing accommodations, as well as unique challenges he faced.

SU denied his appeal based on “patient safety” concerns due to Doe’s performance on the OSCE.

Discovery battles

Doe sued SU for creating a racially hostile learning environment in violation of Title VI of the Civil Rights Act, disability discrimination and failure to accommodate under the Americans with Disabilities Act, and defamation.

SU objected to Doe’s discovery requests for information about students dismissed from the PA program or who failed the OSCE three times, as well as statistical and demographic information about the classes from 2017 to present.

According to SU, Doe’s requests were overly broad, unduly burdensome and sought irrelevant confidential information. SU answered that one other student had failed the OSCE three times and was dismissed but provided nothing more.

In July 2022, Hoppe overruled SU’s relevancy objections and ordered them to identify non-party students without using names. SU wasn’t required to produce any documents, but Doe could renew his requests for a limited number of students.

SU produced a comparator chart identifying 14 students, including Doe, with a generic reason for dismissal, race and disability status, and the outcome of any appeals for each student.

Claiming that SU’s comparator chart was inadequate because it “provides an incomplete context,” Doe argued that the student records would contain more details relevant to proving disparate treatment and pretext.

SU said the comparator chart contained all the information Doe needed, adding that “[o]f course, it reveals that no such comparators exist.” And even if the chart showed disparate treatment, SU asserted that Doe hadn’t provided a compelling reason to grant him access to student records.


Rather than show direct or indirect evidence of discrimination, Doe focused on the McDonnell Douglas “pretext framework” under which he would point to a similarly situated comparator who received better treatment.

“Accessing comparator information requires courts to examine specific facts about the nature, extent, and severity of the proposed comparator’s misconduct, as well as how they were treated compared to the plaintiff,” Hoppe pointed out.

Here, the judge agreed that SU’s comparator chart didn’t contain enough facts for Doe to determine if any students were valid comparators. He noted that the chart included more specific reasons for Doe’s dismissals compared to the other students.

“Those missing facts are relevant to whether Doe, despite being ‘similarly situated’ to Student 10 … ‘was treated differently’ than them when his OSCE grade ‘was up for discussion,’” Hoppe said, citing other disparate examples from the comparator chart.

“If these missing facts exist, they will be found in the student’s educational records themselves,” the judge said.

SU’s burden

The burden shifted to SU to show why the information was of such marginal relevance that the potential harm caused by granting Doe’s request would outweigh the ordinary presumption of broad discovery.

The judge said SU failed to do so.

“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,’” Hoppe wrote.

The judge said Doe was entitled to review the underlying records so he could decide whether any comparators exist and how to use them to prove his case. Hoppe added that SU didn’t explain why it would be burdensome to notify the 14 affected students or produce records.

The judge then rejected the argument that Doe provided no compelling reason to view the student records.

“[SU] cites no authority suggesting that Doe must make a heightened showing before he can obtain the Students’ otherwise discoverable records,” Hoppe wrote.

Waiting game

Richmond litigator Nicholas Simopoulos described Doe as a kind and thoughtful person who deserved better than how he was treated by SU.

“My client was there for years and the dismissals really hurt him,” he told Virginia Lawyers Weekly. “I deal with students all the time at different schools and when they ask whether they are facing discrimination, my first question is always, ‘Do you know anybody else who was treated differently?’”

Simopoulos hasn’t yet received any documents from SU, but said that’s to be expected.

“There are three 14-day periods, the first being to notify the students whose records have been requested and the second for those students to file objections,” he said. “Depending on the student responses, SU would then have 14 days to produce the records.”

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