Baylor campus

Through a Tuesday night writ of mandamus filed to the 5th U.S. Circuit Court of Appeals, Baylor University has exhausted its final effort to protect educational records of about 6,200 current and former students extending back to 2003.

Some 6,200 current and former Baylor University students could soon receive letters in the mail containing some surprising news: Under court order, your college records must be submitted within a Title IX lawsuit Baylor faces, and the university needs your permission to comply under federal privacy laws.

If you object, the court will review your records and determine whether they should be produced.

“You may, if you wish, hire an attorney, but you do not need to do so in order to register an objection ...” the letter states.

Baylor will send those letters if a petition it filed with the 5th U.S. Circuit Court of Appeals to block the action late Tuesday is rejected. It is unclear whether a three-judge panel on the circuit court will even consider the petition, which argues the information the court seeks is irrelevant to the claims of 10 women who allege they were sexually assaulted at Baylor.

The records in question include any student record since 2003 related to “sex” or “sexual conduct generally.” According to Baylor’s filing, they could include a decade-old student complaint to a dorm supervisor regarding a roommate’s sexual activity, or a student’s disclosure of childhood sexual abuse to a professor.

Additionally, a written reference to a college couple’s consensual sexual activity would yield letters to both persons, up to 14 years after the fact, according to the filing.

Submitted records would only be available for attorneys to view, and names would be redacted.

People who dealt with longtime Baylor judicial affairs administrator Bethany McCraw would most likely receive the letters, as the students’ names were generated from a search of her records. She possessed the largest number of documents that the law firm Pepper Hamilton LLP reviewed in its investigation into how the university responded to reports of sexual violence, the university has said in a legal filing.

McCraw, chief of the school’s disciplinary branch, has been accused of not properly responding to several women who accused former football player Tevin Elliott of rape.

The Tuesday filing showcases the university’s stance that U.S. District Judge Robert Pitman has acted outside of the law in a ruling that ordered Baylor to produce all records related to Pepper Hamilton’s investigation, and in another ordering production of several years’ worth of pieces of student medical and counseling records where sexual assault was reported.

The university declined to comment outside of the filing, a spokesman said, but the school has long fought to maintain student privacy.

“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,” a university statement said last month.

Karen Bitar, a partner in the New York office of Seyfarth Shaw LLP and former sex crime prosecutor, said she could not think of any such document request that demanded so broad of a time frame. She is also co-chair of the firm’s White Collar, Internal Investigations and False Claims team.

Though the Tuesday brief is Baylor’s last chance to prevent a massive production of student records and a barrage of questions from new lawyers, it does not come without risk.

“They get to wear the white hat for a change,” Bitar said of Baylor’s attorneys. “They’re being deferential to the safety and well-being of these students by basically taking up their cause in a mandamus action, which, if they lose, creates some risk in engendering the ill will of the court.”

Bitar, who has also represented religious and higher education institutions in Title IX-related cases, said the action to protect student privacy notably contrasts with the language of Title IX, where plaintiffs must prove a university was “deliberately indifferent” to student claims of gender discrimination.

Jim Dunnam, a Waco attorney representing the 10 plaintiffs, called Baylor’s fight to protect student privacy “a made-up issue.”

“We’re not trying to reveal student identity or identifying information,” he said. “As the judge showed by his order on Monday morning, we’re not getting that information. Our response on Monday suggested that Baylor redact identifying information.”

Dunnam pointed to a filing this week that included pieces from a Thursday deposition of former Baylor Title IX investigator Gabrielle Lyons, who said she encountered 100 rape cases within one year.

“It’s clear that Baylor will do anything to conceal the magnitude of the sexual assault crisis that’s been going on for years,” he said.

Pitman’s Monday ruling about the counseling and medical records rejected the arguments of university officials who oversee those areas.

Counseling Center Executive Director Jim Marsh wrote in an August legal declaration that “confidentiality is absolutely critical to the services we provide.” He pointed to a “significant chilling effect” to current and former students if such records were not confidential. Sharon Stern, medical director of Baylor’s Health Center, presented similar concerns.

But those are unfounded, Dunnam said Wednesday.

“The information is necessary for there to be an understanding of the magnitude of the problem,” he said. “They don’t want us to get the data so that it can be made known how many hundreds of assaults there have been at Baylor University.”

If the circuit court does not consider Baylor’s Tuesday filing, or if it rules against the university, harms created by the mere delivery of notices asking students to allow release of their education records could not be undone, Baylor argued, saying the notices “may traumatize the recipient.”

Bitar commented on the letter’s vague wording regarding whether or not the recipient should hire a lawyer. Those who ignore the notice are objecting to the letter, the notice states.

“To say you don’t need a lawyer — you can just object — essentially bypasses a knowing and voluntary waiver,” she said. “In other words, people should really speak to a lawyer about what their rights might be in this regard. By telling them you should object, then the court will look at it. Once the court looks at it, some level of confidentiality is already gone because records are now removed and they’re in somebody else’s hands.”

Phillip Ericksen joined the Tribune-Herald in March 2015 as a sports copy editor. That November, he joined the news team. He has covered higher education, city hall, politics and crime.

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