Baylor University’s petition to protect about 6,200 current and former students’ privacy regarding records related to “sex” or “sexual conduct generally” since 2003 has been denied, according to a Monday ruling by the 5th U.S. Circuit Court of Appeals.
The denial comes about a month after the university filed the petition to block a ruling made by U.S. District Judge Robert Pitman as part of an ongoing Title IX lawsuit filed by 10 former students. The ruling ordered Baylor to produce several years of student medical and counseling records and followed another ruling by Pitman for Baylor to produce all records related to the Pepper Hamilton LLP investigation, which examined how the school responded to reports of sexual violence.
“Baylor appreciates the court’s consideration of the university’s mandamus petition,” stated Lori Fogleman, the assistant vice president of media communications at Baylor, in an email to the Tribune-Herald on Tuesday morning. “Our ongoing objective has been to protect the confidential medical, counseling and student conduct records of students who were not involved in the Plaintiffs’ cases. We will continue to comply with the trial court’s orders regarding discovery.”
It’s unclear when current and former students will receive letters in the mail from the college, alerting them to the release of the documents.
In Baylor’s appeal of the judge’s orders, officials alleged Pitman’s rulings were a “clear abuse of discretion” regarding the possibility of more than 47,300 documents, including 32,000 FERPA-protected (Family Educational Rights and Privacy Act) records, the university’s filing stated.
The university asked for the court to delay the discovery of the records, limit the discovery of the records to summary information, or delay the discovery pending an appeal about the validity of the plaintiffs’ “heightened risk” reasoning behind the demand for the records.
The heightened risk was described as follows, according to a plaintiffs’ filing:
“Even prior to their initial reports of sexual assault, Baylor’s discriminatory practices in handling reports of sexual assault — discouraging victims from reporting their assaults and failing to investigate their claims or punish their assailants — constituted a policy of intentional discrimination that substantially increased plaintiffs’ risk of being sexually assaulted.”
At the time of his ruling, Pitman called the records “indisputably important,” to the claims of the 10 women suing Baylor who were allegedly denied educational opportunities after their assaults.
Waco attorney Jim Dunnam, who represents the plaintiffs, stated in an email Tuesday morning he was pleased, though not surprised, by the circuit court’s decision.
“We’ve said all along that the trial judge has been thoughtful, well-reasoned and fair,” Dunnam wrote. “It’s pretty disgusting, Baylor’s almost weekly misinformation to the public claiming to help victims and be transparent, when all they do in court is the exact opposite.”
Dunnam initially called Baylor’s efforts to block the judge’s orders a “made-up issue.”
“We’re not trying to reveal student identity or identifying information,” Dunnam said in November when Baylor filed the appeal to block the release of the records. “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.”
At the time, he pointed toward a deposition by former Baylor Title IX investigator Gabrielle Lyons, who said she encountered 100 rape cases in 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 at the time.