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At Syracuse University, counselors on the counseling center’s Sexual and Relationship Violence Response Team play a dual role: they can provide therapy to a student who may have been sexually assaulted, while also serving as that student’s advisor in campus disciplinary proceedings. 

Attorneys for John Doe, a student suing Syracuse University for expelling him after an allegedly unfair disciplinary proceeding, believe that the complainant’s advisor, Tekhara Watson — a member of the Sexual and Relationship Violence Response Team — may have pressured her to file a university Title IX complaint even after she chose not to pursue the matter with police. Doe’s attorneys believe this information may be critical to proving their case that Syracuse’s treatment of Doe was biased and unfair, and they requested it be turned over as part of discovery in the case. 

Last week, a federal magistrate judge agreed, ordering that a limited number of “stringently redacted” records be turned over to Doe and his lawyers. The order came after the judge conducted an review of the documents and determined that “[p]ortions of Ms. Watson’s notes are relevant to plaintiff’s theories that Syracuse University’s disciplinary proceedings were procedurally unfair and biased against male students.”

These concerns, however, overstate the breadth of the judge’s ruling here, which is particular to the unique structure of Syracuse’s campus judicial system.

Yesterday, Inside Higher Ed the decision, focusing heavily on concerns expressed by college administrators and victims’ rights advocates that the ruling would “massively chill help-seeking,” with students not wanting to come forward if their records could possibly be turned over in litigation. These concerns, however, overstate the breadth of the judge’s ruling here, which is particular to the unique structure of Syracuse’s campus judicial system.

Syracuse, by its own admission, maintains a process in which a counselor’s role as a therapist can be “intertwined” with his or her role as an advocate in campus judicial proceedings. Were that not the case, Doe and his attorneys would not have been seeking her records. They have made clear throughout that they are “not asking for [the complainant’s] psychiatric or therapy records,” but rather are seeking information about whether, in her role as the complainant’s advisor in the disciplinary process, Watson may have “recruited the Complainant” to bring a Title IX action after she “had already expressed her wish not to pursue action against John Doe. “ 

Without actually reviewing the documents, Syracuse opposed the discovery request on the grounds that they were “confidential counseling records,” the production of which would chill victims from seeking therapy. As Doe’s attorney Michael Thad Allen pointed out, however, this is a problem of Syracuse’s own making: 

Syracuse could have, but did not, separate the therapeutic role of counselors from the procedural role of advisors. See e.g. Tubbs v. Stony Brook University, 343 F. Sup. 3d 292, 315 (S.D.N.Y. 2018) (“pursuant to … the Code, that Plaintiff could have her Advisor present within the Hearing, but not her therapist”). This would do more to protect hypothetical reporting parties than “intertwining” the role of counselor and advisor to recruit Complainants for Syracuse’s Title IX Office.

While Doe and his attorneys are not seeking records from the complainant’s therapy in this case, even confidential mental health records can be subject to discovery under New York law if “the interests of justice substantially outweigh the need for confidentiality.” So, as Allen noted,

[A] defendant in criminal proceedings can reach the treatment records of a witness. “Where … a defendant demonstrates that the witness’s psychiatric records might contain exculpatory information, the proper course of action is for the prosecution to provide those records for in camera inspection.… The prosecution is not to decide for the court what is admissible or for the defense what is useful.” People v. Velasquez, 49 Misc 3d 265, 269 (Crim. Ct., Bronx County 2015).

Discovery is critical for accused students seeking to prove that their university was impermissibly biased against them in campus disciplinary proceedings. As judges have noted in the past, virtually all of the information necessary to prove such a claim — training materials, email correspondence, and other records — is in the sole possession of the university, which rarely if ever will turn documents over voluntarily. 

In this case, because Syracuse argued that the requested records were confidential counseling records, the judge applied the stringent “interests of justice” standard from New York’s Mental Hygiene Law to determine whether Doe and his attorneys were entitled to the documents. He first ordered the documents to be produced for in camera review, so that he could see them and decide whether they needed to be turned over to Doe’s legal team. Only after conducting that review, and determining that “the interests of justice substantially outweigh the need for confidentiality” with regard to select documents relevant to Doe’s claim of bias, did he order those specific documents to be produced in discovery. 

Far from being a “broad” decision that suddenly makes therapy records fair game for accused-student plaintiffs and their attorneys, this is a narrow ruling based specifically on Syracuse’s choice to intertwine the roles of therapist and procedural advocate in sexual misconduct cases. Moreover, the judge followed a very thorough process, ordering a redacted production only after privately reviewing the documents and determining that they were so relevant to Doe’s claims of bias that the interests of justice demanded they be turned over. 

To paraphrase Justice Louis Brandeis, sunlight is the best disinfectant. Student plaintiffs must be able to engage in meaningful discovery in order for university malfeasance to be exposed and addressed. And Syracuse appears to be a particularly bad actor — in the past three years, it has been the subject of six lawsuits by students alleging they were denied a fair process in sexual misconduct cases. 

FIRE will keep you posted on developments in this case as it progresses.