Judge rules Baylor must release records from sexual assault investigation
A federal judge in Texas ruled Friday that Baylor University must release underlying documents in its investigation into the school's handling of sexual violence that led to the ouster of president Ken Starr and firing of head football coach Art Briles last year.
The ruling came in a Title IX gender equity lawsuit filed against the school on behalf of 10 women who attended Baylor and claimed that school officials failed to properly respond to and investigate their reports of assault.
"This is another very positive step in getting all the truth and information out there," attorney Jim Dunnam said. He said the judge's ruling compels Baylor to turn over the "information and the data" that the school gave Philadelphia law firm Pepper Hamilton, which was hired in 2015 to examine the school's response to sexual violence. "Now we can hopefully determine specifics about who did what and the specific failures."
The university is facing four other Title IX lawsuits, and disclosure of materials used in the Pepper Hamilton investigation is at issue in some of them.
In his 21-page order, U.S. District Court Judge Robert Pitman wrote that communications between Baylor and Pepper Hamilton were subject to attorney-client privilege. Such a determination would typically make them off-limits for release. However, Pitman also wrote that Baylor waived that privilege when it publicly released select details of the investigation, which it did in May 2016 when it issued a summary known as its "Findings of Fact," and in February 2017 in a regents' response to a defamation lawsuit that included specific text messages and details of interviews.
"Would it be fair to allow Baylor to protect remaining undisclosed details regarding the Pepper Hamilton investigation when it intentionally, publicly, and selectively released certain details of the investigation, including attorney-client communications?" Pitman wrote. "The Court concludes, with respect to materials covered by the attorney-client privilege, that it would not."
The judge, however, made some specific exemptions. Because the school's Findings of Fact, which broadly outlined the failures of the university and football program, did not include names or specific data sources, he wrote that the school "need not reveal which documents and interviews formed the bases for those documents." He also wrote that recordings of interviews conducted by Pepper Hamilton and interview notes "need not be produced."
On Friday, Baylor issued a statement in response to the ruling: "Baylor recognizes this is a complex order, and the university appreciates the court's ruling that attorney work product privileges continue to apply in this case. All of the work product and related materials prepared by Pepper Hamilton are currently protected from discovery, with the provision of the university being required to produce a detailed log of certain work product and to identify witnesses who were interviewed." The statement also noted, "Baylor continues to express concerns regarding the protection of students' personal records, specifically the desire of many students -- who are unrelated to this case -- that their identities remain anonymous and their information confidential."
Outside the courtroom, there has been a great deal of pressure on Baylor from alumni, donors, fans and others to release more details of the school's investigation, including from people who are critical of what they have described as an overemphasis on alleged sexual and physical assaults involving football players. Of the 10 women in the lawsuit at issue Friday, one claims she was assaulted by a football player.
"We've said all along this is not just some football rogue issue," Dunnam said. "This is an issue that permeated the entire university and a problem that was in the entire Baylor culture at the top. Baylor has tried to misdirect attention to say this was only a football program that was solved by the firing of a coach."
In addition to firing Briles in May 2016, Baylor demoted Starr and suspended athletic director Ian McCaw, both of whom would leave the university soon after. It also removed two other athletic department employees, including former football director of operations Colin Shillinglaw. In response to a defamation lawsuit that Shillinglaw filed but later withdrew earlier this year, three Baylor regents cited several examples of materials given to Pepper Hamilton and defended their decisions.
"Contrary to some people's belief, Briles was not a 'scapegoat' for the university's larger problems -- he was part of the larger problem. So was Shillinglaw. Coach Briles admitted that he was operating an internal disciplinary system outside Baylor's policies that left their team unaccountable under university procedures," according to the filing in the defamation case. "Baylor had no choice but to change leadership -- including parting ways with its prized football coach. There is no question that the regents, after a long self-imposed silence, had to respond with truthful statements to correct the record in an attempt to end the widespread misinformation."