Baylor campus

Baylor University will ask the 5th U.S. Circuit Court of Appeals to decide whether certain student medical and counseling records are discoverable in one of the Title IX lawsuits the school faces. 

Staff photo — Rod Aydelotte

Baylor University has asked a federal judge to pause the discovery process in an ongoing Title IX lawsuit filed by 10 women who say they were sexually assaulted while attending Baylor in order to prevent the disclosure of medical and counseling records presenting “a grave threat to the privacy of thousands of former and current Baylor students,” according to a motion filed late Monday by the school.

Because U.S. District Judge Robert Pitman has not yet clarified whether those records unconnected from the 10 plaintiffs’ cases are discoverable, university attorneys hope a higher court — the 5th U.S. Circuit Court of Appeals — will choose to make the call.

Baylor will file a mandamus brief to the circuit court next week, a school spokesman said. Judge Jennifer Walker Elrod, a Baylor regent, serves on that court.

“Baylor University continues to maintain our position of keeping discovery in this case focused on the claims of the plaintiffs who have sued and preventing the disclosure of nonparty student records, such as confidential medical and counseling records,” a university statement said. “We will remain steadfast in protecting the privacy of thousands of our students who are not involved and who may have no knowledge of this legal matter.

“Baylor’s intent with this filing is to expedite discovery in an attempt to advance the litigation process on behalf of the plaintiffs and the university. The court of appeals has authority to decide whether the records are protected from discovery.”

The Monday night filing comes after two of Pitman’s rulings have vexed Baylor attorneys due to federal privacy laws universities must follow.

In July, Pitman ordered Baylor to produce original documents of sexual violence and harassment reports from all Baylor students since 2003. Weeks later, he told the university to produce interview recordings, notes, summaries and evidence from the 2015-2016 Pepper Hamilton LLP investigation into how sexual violence reports were handled at Baylor.

Bethany McCraw, a longtime Baylor administrator who has been publicly accused of failing to assist women who reported sexual assaults, possessed the most documents related to Pepper Hamilton’s investigation, according to Baylor’s motion. McCraw has more than 45,000 such documents, and about 32,000 are flagged due to federal privacy concerns, the motion said.

The discovery contains records of at least 6,200 students, and some of those records are unrelated to sexual assault, according to the motion. McCraw oversees Baylor’s student conduct administration.

The lawsuit is one of six Title IX lawsuits Baylor faces. The university has settled four other lawsuits in the wake of a sexual assault scandal that led to the 2016 firings of Ken Starr as president and Art Briles as head football coach. Athletics Director Ian McCaw later resigned.

The university has also settled out of court with several alleged victims.

Waco lawyer Jim Dunnam, who represents the plaintiffs with Houston lawyer Chad Dunn, said the filing shows Baylor’s continued victimization of his clients.

“It’s just more of Baylor trying to hide information,” Dunnam said. “The information is supposedly what Pepper Hamilton relied upon in coming up with what ended up being the regents’ findings. So, I don’t know how it’s not relevant if they gave it to Pepper Hamilton for them to make their investigation. ... I don’t understand why they persist in victimizing these young women. The hypocrisy is very disturbing.”

Phillip has covered higher education for the Tribune-Herald since November 2015.

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