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Students walk by the the UO's University Counseling & Testing Center, where a freshman known in court records as Jane Doe went for therapy after multiple alleged gang rapes by three Ducks basketball players on March 8, 2014. The U.S. Education Department has issued a national guidance letter directing schools not to release students' private medical records without their consent, as center director Shelly Kerr did in the case of the alleged rape victim.
(Mary Jane Schulte, for The Oregonian)
A federal official advised universities this week to not share a student's medical records without written consent, contradicting the University of Oregon's release of an alleged gang-rape victim's therapy records to the school's lawyers.
The six-page draft letter from Kathleen Styles, the U.S. Education Department's chief privacy officer, was issued this week after repeated inquiries by The Oregonian/Oregonlive and members of Oregon's congressional delegation.
In effect, the letter steamrolls a UO Counseling Center confidentiality policy weakened in March by center director Shelly Kerr, clinical director Joseph DeWitz and university associate general counsel Samantha Hill. The Oregon Board of Psychologist Examiners is investigating four UO psychologists, including the two center managers, after Kerr secretly gave the woman's records to university attorneys in December without seeking her permission or notifying her therapist, Jennifer Morlok.
Styles' letter of clarification and guidance does not mention UO by name, and the agency is not penalizing the school in any way. But the circumstances described by the letter clearly fit the incidents that have transpired at the school. The letter is technically a draft letter, because the Education Department is seeking public comment on it.
The letter of guidance interprets federal laws and regulations in a way that appears to give new impetus to an appeal filed recently by Morlok with the Oregon State Bar. The lawyers' professional organization dismissed complaints she lodged against UO attorneys Hill and Douglas Park, finding the lawyers violated no rule of professional conduct in handling the alleged rape victim's records.
John Clune -- a Colorado lawyer representing the woman, who recently won an $800,000 settlement and four years of free tuition, housing and fees for his client -- said in an email that the Education Department's letter "has to be in direct response" to the lawsuit he filed on her behalf against UO and Dana Altman, its basketball coach. Clune wrote in the email Wednesday to The Oregonian/Oregonlive that the letter mirrored his legal team's analysis of the privacy issue.
"I am so proud of our client, who pushed us to pursue this claim because it was of such importance to her," Clune wrote. "It will have such tremendous impact for students and faculty seeking campus services across the nation."
Paradoxically, the letter may force the University of Oregon in a manner against its will to become a leader in reform of campus sexual-misconduct policies nationwide.
UO officials have adamantly defended the release of the unidentified woman's private therapy records and the Counseling Center's subsequently diminished privacy policies. They say they have taken numerous steps to reduce campus sexual misconduct.
But Tobin Klinger, UO senior director of public affairs communications, said the letter reinforced the UO's policies.
"It is also completely consistent with how the university has always operated," Klinger said Thursday in an emailed statement.
Asked whether Styles' letter contradicted the UO Counseling Center's confidentiality policy, and whether the letter might support Morlok's Bar and Psychology Board complaints, Klinger said: "If those reviewing the approach taken by the university choose to apply the guidance, it will undoubtedly help to validate the actions that were taken."
Klinger did not respond to Clune's statements.
The issue stems from the alleged gang rape multiple times on March 8, 2014, of the unidentified woman by three Ducks basketball players. In the lawsuit filed Jan. 8, Clune and Eugene attorney Jennifer Middleton asserted Altman knew or should have known when he recruited the players that one of them, Brandon Austin, had been in disciplinary proceedings at his previous college for an alleged sexual assault.
As a prelude to the Aug. 3 settlement of the civil suit, the plaintiff dismissed Altman from the lawsuit. He had allowed the men's basketball team members to continue playing after the alleged gang rapes near UO's campus. Ultimately the school kicked the athletes off the team and expelled all three, who were never charged with crimes.
The settlement requires the university to make transfer applicants disclose any disciplinary records. But it makes no mention of the privacy issue despite campus outrage and months of national negative publicity.
A lawyer for Morlok and Karen Stokes, a former Counseling Center coworker, served notice on the university Aug. 11 that they intend to seek damages in a lawsuit for alleged discrimination, retaliation and violation of First Amendment and disability rights - accusations that Klinger has denied.
UO President Michael Schill said Aug. 4 in announcing the gang-rape case settlement that the university must put the divisive fallout behind it.
Schill, who took office July 1, has tried to shift the school's focus forward as administrators lead a $2 billion capital campaign amid reduced state funding. His administration continues the struggle to maintain UO membership in the elite Association of American Universities, despite trailing peer schools in research, graduation rates and student-faculty ratios.
This week Schill announced that Park, one of the UO attorneys targeted in Morlok's Oregon State Bar complaint, would not move from his position as the school's interim general counsel to attain the post permanently. Instead the university is hiring Kevin Reed -- vice chancellor and associate general counsel at the University of California Los Angeles, where Schill once worked -- as UO vice president and general counsel.
The university is also hiring a vice president for communications. Kyle Henley will move from Colorado State University to take the newly created position.
UO attorneys and publicists face challenges as fallout continues from the alleged-rape case.
A lawyer for Morlok and Karen Stokes, a former Counseling Center coworker, served notice on the university Aug. 11 that they intend to seek damages in a lawsuit for alleged discrimination, retaliation and violation of First Amendment and disability rights - accusations that Klinger has denied.
On Thursday, Morlok and Stokes emailed a statement concerning the draft guidance letter issued by Styles.
"We are pleased that our ethical instincts and duty to protect the confidentiality of private medical records were confirmed by the U.S. Departmnet of Education," Morlok and Stokes wrote. "We hope that the Department of Education's guidance will provide clarity for the ongoing investigations."
Styles letter
Styles' "Dear Colleague" letter, which she addressed Tuesday to all U.S. institutions of higher education, told them how to interpret and apply the Family Educational Rights and Privacy Act to protect student medical records. Sen. Ron Wyden and Rep. Suzanne Bonamici, both Oregon Democrats, had written the Education Department asking for legal clarifications in light of the UO rape case.
Reacting to the UO case during the last legislative session, state lawmakers partially tightened privacy provisions. But the federal agency's letter provides definitive national confidentiality mandates.
A UO committee that includes two of the psychologists under investigation, Counseling Center associate director Brooks Morse and university vice president for student life Robin Holmes, is preparing recommendations to amend campus privacy policies.
But the agency's letter will force sweeping revision of the panel's nascent proposals. To comply, the Counseling Center and university clinics nationwide will have to guarantee essentially the same privacy protections patients routinely receive at off-campus commercial clinics.
The UO center must reinstate a requirement for written consent to release patients' records. It must resume releasing therapy records only in response to court orders, not subpoenas, and close several other loopholes created by the revised policy.
In her letter, Styles said agency officials, "commend the many institutions that have made thoughtful and sensitive decisions that respect the private nature of students' medical records."
"The department recommends that institutions give great weight to the reasonable expectations of students that the records generally will not be shared, or will be shared only in the rarest of circumstances, and only to further important purposes such as assuring campus safety," Styles wrote. "Failure to meet those expectations could deter students from taking advantage of critical campus resources, and could undermine ... trust between students and the institution."
-- Richard Read
rread@oregonian.com, 503-294-5135
Follow on Twitter: @ReadOregonian