Jauregui Law Firm Quora Answer: During a Sexual Misconduct Investigation and Adjudication the School will Likely Publish the Respondent’s use of Controlled Medication unless he Lawyers-up.
Consider this hypothetical:
Peter, a male NCAA-star athlete, has told his school he has been diagnosed with ADHD (1) and Oppositional Defiant Disorder (2) since age 12. Not only that, Peter requests and receives testing accommodations as well as a controlled medicine—“Adderall” (3)—from Peter’s school’s psychiatrist who visits the Student Health Center to treat him.
Peter then faces an accusation that a female student who invited him to her dorm did not mean for the rest of the sexual events of that night to happen. Peter responds to this complaint denying lack of consent, and also tries to change schools in order to safeguard some of his NCAA career. Peter does not want anyone to know, or at least wants to prevent most people from knowing, that he’s on adderall. That said, Peter does feel that his oppositional defiance played an exonerating role in his relationship with the school’s sexual misconduct policy which demands the exact compliance best suited for a theorem; a position that inherently discriminates against a person with ODD.
This totally relatable situation where a male respondent to sexual assault wants to use his medical condition and treatment as an explanation for why some may find his behavior generally aggressive, while at the same time trying to keep that condition and related medications confidential to improve his chances in the job market, has a complex legal solution that requires a legal team working on the respondent’s behalf.
The short answer is that Peter’s use of adderall will be disclosed, unless his legal team closely educates his college’s Title IX staff about the risk involved in such a disclosure.
The long answer is that Peter’s rights to keep his information about using adderall private exist in a web of laws—HIPAA (4), FERPA (5)—and contractual agreements—those his school extended to all students. Thus, given this complexity, most likely Peter is at the mercy of the Title IX staff at his school. To help Peter’s legal team out of this mess, there is new guidance from both the U.S. Department of Health and Human Services and the U.S. Department of Education which can be found here:
https://www.hhs.gov/sites/default/files/2019-hipaa-ferpa-joint-guidance-508.pdf
The guidance makes clear why Peter will lose his privacy absent some heavy lawyering. Generally speaking, you would think that HIPAA prevents Peter’s school from disclosing anything about his adderall use and prescription because that is clearly a medical issue (6). Not so. Under the new guidance, all this matter comes under FERPA, not HIPAA. (7). The HIPAA Privacy Rule specifically excludes from its coverage those records that are protected by FERPA by excluding such records from the definition of “protected health information.” See 45 CFR § 160.103 (definition of “protected health information” ¶¶ (2)(i), (ii)).
The guidance makes clear that this kind of medical information is part of what the school has compiled as Peter’s “education record” as defined FERPA, specifically in 20 U.S.C. § 1232g(a)(4)(A); 34 CFR § 99.3, which includes “treatment records” when the treatment happens at the school:
“For instance, a student’s health records, including immunization records, maintained by an educational agency or institution (such as by an elementary or secondary school nurse) would generally constitute education records subject to FERPA.” (See Guidance, id, at page 4).
Generally speaking, then, Peter might think FERPA prevents the disclosure of his ADHD, his ODD, and his adderall use. Not so. Students at Colleges and Universities grow up in the FERPA mind-set that encourages the flawed belief that a student’s school record is confidential. While FERPA requires the adult student’s authorization for disclosure of personally identifiable information (PII), exceptions apply. See 34 CFR Part 99, Subparts B, C, and D. (8). The exceptions carve an enormous hole on the notion of “student privacy.” FERPA contains several exceptions to the general consent requirement which are set forth in 20 U.S.C. §§ 1232g(b)(1), (b)(2), (b)(3), (b)(5), (b)(6), (h), (i), and (j), and 34 CFR § 99.31. Peter’s use of adderall, as any other part of his educational record, could easily be considered to fall into the FERPA exceptions.
The sticky point requires identifying whether Peter’s school is allowed to consider this part of his educational record—a prescription for a medication that is, fundamentally, a stimulant—as important enough to fall into the FERPA disclosure exceptions OR important enough to become a confidential explanation as to why Peter might have angered his complainant. That is, can Peter defend his name and keep his privacy? Peter will always object to the disclosure of his medical information at his school’s health center except as needed to respond to the sexual misconduct complaint. So why would the Title IX staff feel that this information should be made public?
Well, chances are Peter will lose his privacy because the Title IX staff will surely consist of women arguing on behalf of complainants who are themselves mostly women (9). In that lack of diversity, Title IX staff are going to work under either systemic (10) or personal (11) male bias and to Peter’s detriment which will lead to his loss of privacy (12). Thus, the likeliest scenario has the Title IX staff arguing that Peter’s adderall prescription must be disclosed and made public, even without his permission. To take just to examples of the many exceptions allowing them to disclose:
FIRST: When the Title IX staff kicks the sexual misconduct complaint out of Title IX and still expels the respondent claiming a disciplinary violation of some other provision of the student conduct rules, FERPA allows the publication of the underlying information, in this case Peter’s use of adderall, so long as the respondent is alleged to have perpetrated a “non-forcible sex offense” and that allegation is found to violate the school’s rules. See, e.g., 34 CFR § 99.31 - Under what conditions is prior consent not required to disclose information? (14)(i)(A)-(B) available here:
https://www.law.cornell.edu/cfr/text/34/99.31
SECOND: When the complainant transfers schools, which is exactly what Peter wants to do, the underlying medication prescription can be disclosed because it is a part of his educational record because a school doctor prescribed it:
“The disclosure is, subject to the requirements of § 99.34, to officials of another school, school system, or institution of postsecondary education where the student seeks or intends to enroll, or where the student is already enrolled so long as the disclosure is for purposes related to the student's enrollment or transfer.”
34 CFR § 99.31 - Under what conditions is prior consent not required to disclose information? (2).
To counter this expected disclosure because of the school’s inevitable male bias, Peter’s legal team will have to develop a strategy for dealing with the Title IX staff. The strategy will be case-specific and can be cooperative or competitive. It may well involve mutual promises, in a form of a confidentiality or protective agreement, that names in general will not be disclosed. It may also include an agreement for expungement. And, overall, it will require heavy legal work to educate all the parties as to the risk of their actions.
And why is the information about Peter’s adderall use relevant to exonerate him? Well, we published on that point here: https://www.studentmisconduct.com/news/jauregui-law-office-quora-answer-does-a-college-student-with-a-disability-like-adhd-or-one-on-the-spectrum-have-any-rights-during-a-sexual-misconduct-investigation-under-title-ix
Raul Jauregui
Jauregui Law Firm
I am an attorney and I defend mostly respondents of sexual misconduct in colleges or universities. This is absolutely not my legal opinion or my legal advice, but rather survey of the Title IX topic. If you’re in this situation, in any way, consult a lawyer now.
As published in Quora:
Endnotes:
1. https://www.addrc.org/dsm-5-criteria-for-adhd/
3. https://www.webmd.com/drugs/2/drug-63163/adderall-oral/details
4. https://en.wikipedia.org/wiki/Health_Insurance_Portability_and_Accountability_Act
5. https://en.wikipedia.org/wiki/Family_Educational_Rights_and_Privacy_Act
6. HIPAA grants patients privacy over their Patient Health Information “PHI” including the patient’s name, face, phone number, address and other identifiers. https://www.hipaajournal.com/hipaa-explained/.
7. FERPA grants students privacy over their educational records, Personal Identifiable Information “PII”. The term “education records” is defined to mean, with certain exceptions, those records that are: (1) directly related to a student, and (2) maintained by an educational agency or institution or by a party acting for the agency or institution. 20 U.S.C. § 1232g(a)(4)(A); 34 CFR § 99.3 (definition of “education records”). In contrast to HIPAA, a school can disclose PII—as indeed schools do all the time when they put out any number of publications like yearbooks—but must give the student a chance to opt out. That is the student can refuse permission to disclose. Unless of course the student falls into a FERPA exception and then the school can and will go ahead and disclose. https://www2.ed.gov/policy/gen/guid/fpco/ferpa/index.html
8. All of the FERPA exceptions that allow disclosure without the student’s consent are listed in 34 CFR § 99.31 and consist of disclosure to:
“School officials with legitimate educational interest;
Other schools to which a student is transferring;
Specified officials for audit or evaluation purposes;
Appropriate parties in connection with financial aid to a student;
Organizations conducting certain studies for or on behalf of the school;
Accrediting organizations;
To comply with a judicial order or lawfully issued subpoena;
Appropriate officials in cases of health and safety emergencies; and
State and local authorities, within a juvenile justice system, pursuant to specific State law.”
10. In a surprising turn of events, the USA Today Network’s anecdotal evidence of Title IX enforcement documents systemic evidence of anti-male bias. See, e.g., https://www.studentmisconduct.com/news/jauregui-law-office-quora-answer-of-course-ncaa-athletes-face-a-profound-anti-male-bias-when-it-comes-to-sexual-misconduct-and-title-ix footnote 9.
11. For a blatant example of allegations of personal anti-male bias consider the stories attached to Cynthia Cummings in Harnois v. UMass Dartmouth. See, e.g., https://www.studentmisconduct.com/news/quora-answer-how-can-you-best-tell-if-a-title-ix-investigation-is-using-techniques-that-are-based-on-science-and-evidence-of-effectiveness.
12. Preserving some form of privacy for the respondent to sexual misconduct allegations remains a paramount goal of any legal strategy. See, e.g., https://www.studentmisconduct.com/news/jauregui-law-office-petition-to-protect-the-privacy-of-title-ix-disciplinary-records-uploaded-to-third-party-database-sharing-vendors and see https://www.studentmisconduct.com/news/2016/6/29/blog-post-03-harris