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Ke v. Drexel University

United States District Court, Eastern District of Pennsylvania

March 20, 2014

LEI KE, Plaintiff,
v.
DREXEL UNIVERSITY, et al., Defendants.

OPINION

JOEL H. SLOMSKY, J.

I. INTRODUCTION

In the instant case, Plaintiff asserts claims of discrimination and retaliation because of his Chinese ethnicity by Drexel College of Medicine (“DCM” or “Defendant”) and other Defendants involved in his dismissal as a medical student. (Doc. No. 135 at ¶1.) In support of his claims, Plaintiff contends that he received disparate treatment when compared to similarly situated medical students who had a different ethnicity. He argues that he needs information about the personal identity of these students and their student files in order to prove his case. He also argues that he should be permitted at scheduled depositions to ask questions about the students, some of whom are specifically named in his Third Amended Complaint or he knew when he attended DCM. Defendants have objected to the release of the student files and information about their personal identity relying on the provisions of the Federal Educational Rights and Privacy Act (“FERPA”), 20 U.S.C. § 1232g. In addition, they claim that at the depositions Plaintiff should be precluded from asking questions that would reveal the identity of the medical student, again relying on the privacy provisions in FERPA.

II. BACKGROUND

In the fall of 2008, Plaintiff began medical school at DCM. Sometime after his second year, he was dismissed from school and then readmitted on a conditional status to retake his second year. (Doc. No. 29-4 at 45.) On January 3, 2011, during Plaintiff’s third year of medical school, Plaintiff was notified that he had failed both the Family Medicine rotation and the Family Medicine shelf exam.[1] (Doc. No. 29 ¶29.) Plaintiff also failed the Step 1 exam.[2] On February 10, 2011, Plaintiff took the Step 1 exam for a second time and failed. (Id. ¶45.) On February 14, 2011, Plaintiff received a letter from DCM placing certain conditions on Plaintiff’s continued enrollment, including receipt of at least a “Satisfactory” grade on all required exams. (Doc. No. 29-4 at 45.) Plaintiff then received a grade of “Marginal Unsatisfactory” on his OB/GYN shelf exam and was dismissed from DCM in accordance with the February 14, 2011 letter. (Id. at 46.)

On October 26, 2011, Plaintiff commenced the instant action. (Doc. No. 1.) In his Third Amended Complaint, Plaintiff asserts claims of discrimination and retaliation by DCM and others. (Doc. No. 135 at ¶1.) Plaintiff claims that in order to prove his case he needs to compare himself to other students. In his Third Amended Complaint, Plaintiff identifies three students he claims were similarly situated to him but, he alleges, were treated more favorably: (1) Cyrus Hadadi (Id. at ¶ 27); (2) Shannon Toccio (Id. at ¶¶ 47, 83); and (3) Heidi Baer (Id. at ¶ 97).

On August 27, 2013, Plaintiff filed his First Set of Interrogatories and Requests for Production of Documents, seeking the identities of additional students and their student files. (Doc. Nos. 162, 163.) Plaintiff contends that he can only prove his case by obtaining identifying information about students who he claims were treated differently from him and their medical school files. Specifically, Plaintiff seeks the identity of students who: (1) completed their Family Medicine clerkship in Monmouth, New Jersey; (2) were required to repeat Academic Years 1 or 2; (3) were brought back to Philadelphia to complete their clerkships; (4) appeared before the Promotions committee on June 9, 2009; (5) failed the Step 1 examination; (6) were given more than nineteen months or three attempts to pass the Step 1 exam; (7) failed three or more courses in the same year; (8) received Marginal Unsatisfactory grades in their Third and Fourth years; (9) failed Clinical Rotations; or (10) were permitted to take make-up shelf examinations. (Doc. No. 163.)

Defendants objected to providing the identities of such students in response to these requests on the basis of FERPA and its implementing regulations, 34 C.F.R. §§ 99.1 et seq. (Doc. No. 164.) The following provisions of FERPA are relevant here:

(b) Release of education records; parental consent requirement; exceptions; compliance with judicial orders and subpoenas; audit and evaluation of federally-supported education programs; recordkeeping.
(1) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of permitting the release of education records (or personally identifiable information contained therein other than directory information, as defined in paragraph (5) of subsection (a) of this section) of students without the written consent of their parents to any individual, agency, or organization, other than to the following . . .
* * *
(2) No funds shall be made available under any applicable program to any educational agency or institution which has a policy or practice of releasing, or providing access to, any personally identifiable information in education records other than directory information, or as permitted under paragraph (1) of this subsection, unless –
(A) there is written consent from the student’s parents specifying records to be released, the reasons for such release, and to whom, and with a copy of the records to be released to the student’s parents and the student if desired by the parents, or
(B) except as provided in paragraph (1)(J), such information is furnished in compliance with judicial order, or pursuant to any lawfully issued subpoena . . .

20 U.S.C. § 1232g(b)(1), (b)(2)(A) and (B). “Personally identifiable information, ” is defined in 34 C.F.R. § 99.3 as follows:

Personally identifiable information.
The term includes, but is not limited to –
(a) the student’s name;
(b) the name of the student’s parent or other ...

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