Professional Documents
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Harvards Board of Overseers, also named as a Defendant, is not itself a corporate entity with any legal status. The
parties anticipate jointly filing a stipulation of dismissal as to that Defendant.
Throughout the Complaint, Leader discusses and relies upon the Final Report of the
investigation into Leaders complaints, issued by Harvards Office for Sexual and Gender Based
Dispute Resolution (ODR). See, e.g., id. 98, 100, 107, 112, 121. The Final Report contains
sensitive nonpublic information about Leader, John Doe, and other Harvard College student
witnesses provided to Harvard in connection with a process for which Harvard commits to taking
reasonable steps to protect the privacy of all involved, see Sexual and Gender-Based
Harassment Policy and Procedures for the Faculty of Arts and Sciences, Harvard University
C(v) (Confidentiality).2 Harvard moves now to file the Report under seal.
ARGUMENT
Harvard intends to file a Motion to Dismiss the Complaint pursuant to Fed. R. Civ. P.
12(b)(6), together with a Memorandum in Support of that Motion (Memorandum). The
Memorandum attaches ODRs Final Report, which Leader cites throughout the Complaint.
I. The Final Report Should Be Filed Under Seal Because It Contains Intimate
Personal and Confidential Information About Parties and Non-Parties.
Pursuant to District of Massachusetts Local Rule 7.2, confidential information or
materials submitted with court filings may be sealed or otherwise restricted from public access
upon a showing of good cause. Good cause exists in this matter because the Final Report
repeatedly identifies John Doe by name and reveals highly personal, confidential, and sensitive
information about Leader, John Doe, and other witnesses who were interviewed or involved with
the investigation that led to the Report.
The instant litigation places the content of and the process leading to the Final Report at
issue, with the result that ODRs Final Report and its contents are crucial to Harvards defense of
Leaders claims. The interests of both parties, John Doe, and third-party witnesses are aligned in
2
Available at http://www.fas.harvard.edu/files/fas/files/sexual_and_genderbased_harassment_policy_and_procedures_for_the_fas_.pdf.
respect to the principle that the Report should not be made available for public viewing. See
United States v. Miami Univ., 294 F.3d 797, 818 (6th Cir. 2002) (noting that release of
disciplinary records clearly will injure the reputations of the students involved, including the
perpetrator, the victim and any witnesses).
Likewise, the privacy interests of the Harvard students who participated in the
investigation and are named in the 79-page Final Report are straightforward: the Report
describes and assesses Leaders allegations and contains personal and private information about
parties to the ODR complaint as well as non-parties, including intimate details about sexual
interactions and events. The exhibits attached to the Report contain hundreds of pages of highly
personal and private text messages, emails, chat messages, and photographs of Harvard College
students and Leaders private journal. Harvards interests in confidentiality relate to the integrity
and functioning of its ODR process, and through that process, to the ultimate success of its
efforts to maintain a secure campus. Harvards policies emphasize confidentiality in the
investigation and reporting of sexual harassment and assault. See Compl. 59.
Also of concern in this case is the identity of John Doe, the individual accused by Leader
of sexual assault and found not responsible following ODRs investigation. Disclosure of John
Does name is unnecessary and unwarranted. See Contra Doe v. Word of Life Fellowship, Inc.,
2011 WL 2968912, at *2 (D. Mass. July 18, 2011). Once personally identifiable information
has been made public, the harm cannot be undone. Miami Univ., 294 F.3d at 818 (noting
release of disciplinary records clearly will injure the reputations of the students involved,
including the perpetrator, the victim and any witnesses).
Moreover, revealing personally identifiable information of any of the students named in
the Final Report may have a chilling effect on student and other witness participation in the Title
names of non-party Harvard College students as well as other information sufficient to identify
non-party Harvard College students. These student names and identities are confidential as a
matter of law, and Harvard should be permitted to redact all names, even when filing the Final
Report under seal.
Generally speaking, FERPA protects from public disclosure a students personally
identifiable information contained in his or her education records, absent the students consent.
FERPA regulations also make clear that witnesses and respondents in school disciplinary
proceedings have a privacy interest in the records of the proceedings. 34 C.F.R. 99.31(a)(14)
(emphasis added) provides:
(i) The institution must not disclose the final results of the disciplinary proceeding unless
it determines that
(A) The student is an alleged perpetrator of a crime of violence or non-forcible sex
offense; and
(B) With respect to the allegations made against him or her, the student has
committed a violation of the institutions rules or policies.
(ii) The institution may not disclose the name of any other student, including a victim or
witness, without the prior written consent of the student.
The Sixth Circuit Court of Appeals has held that FERPAs restrictions on the disclosure of
information from student disciplinary proceedings apply notwithstanding state public records
laws and the First Amendment interests of press entities seeking to access information about
criminal conduct at universities. See Miami Univ., 294 F.3d at 811, 834. Several exceptions to
this principle are available under FERPA and its supporting regulations in 34 C.F.R. pt. 99. One
such exception entitles an institution to disclose to the court the students education records that
are relevant for the . . . institution to defend itself in a civil action brought by that student. 34
C.F.R. 99.31(9)(iii)(B) (emphasis added). This exception does not extend to disclosing to the
court or to the public information of other College students who are named or are identifiable in
the Final Report but are not parties to this litigation. Id.
Reconciling Harvards entitlement to defend itself in this case with its privacy obligations
to John Doe and its witnesses requires that the Final Report be sealed from public view in its
entirety. Because FERPA protects not just personally identifying information, but personally
identifiable information, redacting the names of students from a public-facing Report would be
insufficient to comply with FERPA regulations. The Family Policy Compliance Office
(FPCO), the division of the U.S. Department of Education that administers and interprets
FERPA and its regulations, has opined that schools must protect from disclosure any information
that would render a non-consenting students identity easily traceable, even after removal or
redaction of nominally identifying information from the records.3 Once personally identifiable
information has been made public, the harm cannot be undone. Miami Univ., 294 F.3d at 818.
As such, consistent with FERPA, the Final Report should be filed under seal in redacted form.
CONCLUSION
For the reasons set forth above, Harvard respectfully requests that this Court issue an
Order permitting the Final Report, including exhibits, to be filed under seal and with redactions
to omit all references to the names and personally identifying information about any student
other than Plaintiff referenced in the Final Report and any witness interviewed in connection
with Plaintiffs ODR complaint.
Respectfully submitted,
DATED:
CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
and paper copies will be sent to those indicated as non-registered participants on June 10, 2016.
/s/ Victoria L. Steinberg
Victoria Steinberg