By: W. Scott Lewis, J.D., Managing Partner, TNG & Advisory Board Member, ATIXA, and Brett A. Sokolow, J.D., Chair TNG & President, ATIXA
Q: Is there any guidance or best practices concerning sharing information about reports that involve the same respondent? For example, two students have reported being sexually assaulted by the same respondent. Would it be reasonable to share with both complainants that the respondent has been reported on another occasion so that they can make an informed decision about filing a formal complaint?
Brett A. Sokolow responds:
Yes, you have three options:
- Take the approach of “FERPA, Shmerpa”, as we like to call it. Don’t let FERPA interfere with Title IX obligations Introduce the complainants and share the information because there is a potential pattern and Title IX trumps FERPA in such situations; or
- Ask each complainant for consent (“if there were another alleged victim of respondent, would you want to be placed into contact with them?) and then introduce the complainants to each other if you get consent from both. If nothing else, this will pique their curiosity, but in our experience, they almost always say yes. Once written consents are executed, specific to the record information to be shared, you can introduce the complainants to each other.
- Introduce the complainants (physically or virtually), and tell them that as a Title IX Officer, it occurred to you that they might want to know each other, as you think they may have a lot in common. Don’t tell them specifics about each other, but they will likely figure it out. That really doesn’t release any record information at all.
That third approach releases no record information, and they’ll connect the dots. It’s probably safest, for those who have the FERPA Fear Factor! Other ideas to consider: the FERPA Emergency Health and Safety exception might be applicable in some cases. And one more for the FERPA mavens out there. If each complainant has visited with the Title IX Coordinator for intake, and those meetings involved conversations rather than an exchange of documents, the conversations between each complainant and the Title IX Coordinator are not protected by FERPA at all, because they are not records in a written or recorded medium. Even if the Coordinator writes up a written complaint or meeting notes, as long as what the Coordinator releases to each complainant is from their own personal knowledge of those conversations, and not sourced from any written record, FERPA does not govern that release.
Response from Scott Lewis:
I agree that Title IX supersedes FERPA; but know that the conversations the complainants have with each other may affect their testimonial weight. The fact that they met and talked will inevitably come up in the hearing, so things that are similar will certainly be raised by the respondent and their advisor as potential collusion, and the Coordinator’s introduction of the complainants may be raised (in a hearing, OCR complaint, etc.) as a challenge to impartiality and/or result in the Coordinator being called as a witness.
Of course, the type of complaint it is matters a lot. Sexual assault (and the circumstances surrounding it) is different than a verbal harassment complaint against a professor, which is also different than a stalking complaint, and so on.
If you have complainant 1 who identifies the same respondent as complainant 2, and either complainant is reluctant to proceed with a formal grievance process, you could ask them how they might respond if they knew there was another complainant. If they say that they would definitely move forward if there was another (VERY DIFFERENT then they would only move forward if another went forward–-that is a whole different dance), then you can share that there is another complainant without identifying them. But, if you’re going to have a conjoined hearing eventually, because there is a pattern, then consider that the complainants are going to know about each other eventually no matter what, because they are witnesses to each others’ pattern, even if they are not eye-witnesses to each others’ incidents.
If you go the consent route, if one wants to know who the other is, make sure BOTH are ok with their information being shared and inform them BOTH that their conversations with each other may come up in a hearing. The need to be informed consumers and making decisions knowing the potential ramifications is critical. You can’t tell them what to do, but you can tell them the pros and cons.
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