Doe v. Syracuse University, 2020 WL 1443023 (N.D. NY 2020)
Recently, courts in the Second Circuit have rendered some influential decisions related to Title IX liability in a number of areas, including investigation, resolution,and training. This case is another potential gamechanger. Moving forward, colleges and universities will need to reevaluate the dual roles many administrators fill, particularly when those overlapping roles result in interaction with the Title IX process in distinct but related functions.
Facts and Background:
A fellow Syracuse student accused John Doe of sexual misconductin 2016.1The Reporting Party (RP) filed a report with the Syracuse Police Department but decided not to pursue criminal action. Like many students who allege they have been sexually assaulted, RP went to the Syracuse University Counseling Center where she had regular sessions with Tekara Watson, M.A., LMFT. During RP’s counseling sessionsthey discussed her options to file a complaintand the resolution process. When RP decided file a complaint with the university, she asked Watson to beher advisor. Watsonattended process related meetings with RP while serving as her therapist.The complaint resolution processculminated in Doe beingfound responsible for violating the university’s policy and he was expelled. Doe filed a lawsuit against Syracuse and claims, among other things,that the university persuaded RP to file a complaint,that itsprocess is procedurally unfair,and is biased against men.2
The Court’s Analysis:
In the process of gathering evidence to support his claim, DoerequestedRP’s counseling records. Syracuse resisted disclosingRP’s recordsbecause the universitybelievedthe records maycontain confidential treatment informationthat isprotected from disclosure under New York Mental Hygiene Law.3However, Syracuse acknowledgedthat:“Ms. Watson’s records may also include “intertwined” records relating to Ms. Watson’s “support” or “advocacy” role. . .which included advising RP of her reportingoptions; explaining the different processes involved with each reportingoption . . . andproviding support by accompanying her to instigation interviews and administrative hearings.”4Syracuse was also concerned that releasing those records would keep studentswho experience sexual misconduct from coming to the counseling center and reporting.
Doe claimed he didnot want to RP’s mental health therapy records. However, Doe alleged there is informationin the records with respect to Watson’s dual rolesthat is highly relevant to Doe’s claims. Doe believes Watson influenced RP to file the sexual misconduct claim with the school after RP decided not to file charges with the Syracuse Police Department.5Doe acknowledgedthat disclosing the records may prevent some students from reporting alleged sexual misconduct. Syracuse, however, created that risk when Watson assumed both a therapeutic and procedural role.6
After hearing both sides,reviewingletter briefs from the parties, and examiningRP’s records7, the Court decided “the interests of justice substantially outweigh the need for confidentiality.”8The court carefully redacted the parts of the records that relate to RP’s mental health treatment and released the records to the parties.
•Students who experience sexual misconduct often seek counseling. A familiarity and comfort develop that makes it natural for a student to want their counselor to be their advisor in a complaint resolution process. However, as illustrated inthis case, serving in dual capacities can be problematic. In addition to creating circumstancesrequiring the institutionto release confidential records, the optics are bad. It can create the appearance of bias and impropriety.
•In a situationlike this, once the campus community learnsthat a counselor was court-ordered to disclose confidential records, the institution risks losingcommunitytrust in the counseling center and the Title IX office. Even with a transparent process for redacting records, the informal communication network will allege those offices cannot be trusted. That may result in fewer reports and fewer people seeking help. It will not result in fewer problems and issues. In other words, serving those dual roles may actually increase harm.
•The counseling center should be a resource for all parties and Title IX administrators should encourage all parties toaccess the counseling center as a resource. Seeing a counselor serving as an advisor can have the effect of eliminating thecounseling center as a resourcefor the other party. Institutions that do not have an active process advisor program should consider implementing one.
1See Doe v. Syracuse University,US Dist. Ct., N.D. NY (5:19-cv-190 (BKS/ATB) 2019).2Id.3Doe v. Syracuse University, 2020 WL 1443023 (N.D. NY 2020) at 1.4Id. 5Id. at 2.6Id.7The magistrate judge reviewed RP’s records in camera.8Id.at 1.