Lawsuit Alleging Campus Rape May Be Unsealed

By Anne Lowe

A sealed civil case involving the alleged rape of a student at the University of the Pacific in Stockton may soon see the light of day, if a federal judge changes his mind.

Nearly all of the records of the lawsuit were sealed by U.S. District Judge Frank C. Damrell on the request of both sides of the case. The student, who is known in the suit as Jane Doe, filed suit against the University of the Pacific in 2009 after she was allegedly raped by three university basketball players.

As the Sacramento Bee reports:

The judge, who sided with the university in September and threw out the lawsuit, was set to hear arguments Friday on whether the young woman should pay UOP's attorneys' fees, reported to be in the six figures. The judge also planned to consider the university's motion to punish the woman's lawyers with sanctions, an extreme measure reserved for the most frivolous lawsuits.

That hearing has been postponed to Dec. 3.

The Bee reported (a week ago) Sunday that Damrell agreed to seal every substantive document in the civil damages lawsuit after the woman filed her complaint in 2009 and the university replied. Legal experts told The Bee that such wholesale sealing of court records is unlawful and allows the parties to essentially litigate their disputes in private.

Damrell's latest order puts the issue back on the parties' shoulders, saying that both sides wanted the records closed but that Jane Doe's attorney now had "conflicting positions." The judge ordered them to clarify their positions in supplemental briefs, to be filed under seal by Nov. 24.

However, one First Amendment expert emphasized that the decision to seal records is not up to the parties. In civil matters, case law requires that the judge support his decision with detailed legal and factual analysis.

Damrell did neither, signing sealing orders drafted by the attorneys, consisting of a few lines and citing "good cause."

"This doesn't appear to have been handled in the normal way," said Douglas Lee, an attorney in Dixon, Ill., and nationally recognized First Amendment scholar. "The judge needs to provide a relatively detailed factual basis (for sealing records)."

The lawsuit was filed in March 2009 by a female student and full-scholarship player for the women's basketball team at UOP in Stockton. A year earlier, the woman, then 19, said she had been raped in campus housing by three players for the men's basketball team following a night of partying. She did not pursue criminal charges.

After conducting its own investigation, the university determined that the men were guilty of "sexual misconduct" and expelled one. The other two were suspended, one for a single semester and the other for two semesters. The university also banned unchaperoned socializing between the men's and women's basketball teams.

In her suit, the woman said university officials had been indifferent to her case and retaliated against her with the ban, which she claimed contributed to "the hostile educational environment." In its answer to her complaint, the university stated that it had acted properly and had not retaliated in any way.

After that, virtually every substantive document – 34 so far – have been sealed by the judge, mostly at UOP's urging.

The plaintiff's Colorado-based attorney, John Clune, acknowledged that he sought permission at the outset for his client to proceed under a pseudonym, Jane Doe. And, he said, he agreed to a protective order that university officials had requested before they would turn over materials in discovery.

After that, Clune said, it became a "slippery slope" with the university stretching the protective order to seal everything.

"In hindsight, I wouldn't do that again," he said.

In its motions to close the records, UOP repeatedly stated that the material was of a "highly sensitive, personal nature." And, the university contended, public release of students' education records would violate FERPA, the Family Educational Rights and Privacy Act.

But some experts say that in lawsuits such as this, FERPA protects only students' identities. It does not appear that the judge considered less-drastic means to assure that privacy, such as redacting names and other identifying data, as most often happens.

After The Bee began asking questions about the case, university officials said they now believed "there is merit" to opening a small portion of the proceedings – the judge's ruling ending the case in their favor – so long as the plaintiff agreed.

Clune told The Bee he could not agree to such a narrow proposal. Rather than pick and choose, he said, the whole case should be opened.

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