Saturday, May 31, 2008

The Duke Motion to Dismiss

The Duke motion to dismiss was filed yesterday afternoon. The document is a curious one—reflecting the University’s twin, and perhaps irreconcilable, aims in the lawsuit.

On the one hand, the 50-page motion seems geared not for the court but for public opinion, describing the lacrosse players’ legal claims in a manner that anyone who has read the case file would recognize as ridiculous—but which might allow the University to score some public relations points. On the other hand, some of the legal claims in the brief might be valid—but they are devastating in terms of public relations, suggesting as they do that Duke administrators believe they have no legal obligation to uphold anti-harassment policies, the Faculty Handbook, or even federal law regarding the privacy of student records.

A summary of the filing:

The Banal

Duke’s motion to dismiss is riddled with statements to which no one could possibly object—and which have no bearing on the lacrosse players’ lawsuit.

For instance:

“Our system of justice encourages individuals to cooperate with the police, not to hinder them, and to provide information to prosecutors, not to stonewall them.”

Nothing in the lacrosse players’ lawsuit suggests otherwise.

“Nor did Duke have a legal obligation to publicly proclaim Plaintiffs’ innocence.”

No one, as far as I know, has ever claimed that Duke did have such a legal obligation. Certainly the lacrosse players’ lawsuit makes no such claim.

“[SANE nurse Tara] Levicy’s conduct was not, as a matter of law, ‘extreme and outrageous’ because under North Carolina law reporting a crime to the police and prosecutors—even if that report is false—is not ‘extreme and outrageous conduct.’”

No one, as far as I know, has ever claimed that Levicy engaged in improper conduct by simply “reporting a crime.” Certainly the lacrosse players’ lawsuit makes no such claim.

Only two possible explanations exist for the inclusion of these clauses, neither of which reflects favorably upon Duke. (1) The Duke attorneys included the passages above (and the “Creating Writing 101” paragraph) for public relations, rather than legal, reasons—a strategy that risks alienating the judge who is considering the motion. (2) The Duke attorneys are unaware of (a) their clients’ behavior over the past 28 months and (b) the substance of the lacrosse players’ lawsuit.

Given the high quality of the Duke attorneys, (1) is the most plausible explanation.

Revisionist History

Other passages in the Duke brief reflect events as Duke administrators doubtless wish they had occurred, rather than what actually happened.

For instance:

Duke waited for the investigation by the police and the prosecutor to run its course, and that is exactly what the criminal justice system expected it to do.”

Well, not exactly:

  • The president of Duke canceled the lacrosse season (without even hinting he was doing so to protect the players’ safety), an action almost unparalleled in the history of Division I athletics.
  • Duke opened a parallel investigation of the players’ conduct, in which the players had no right of cross-examining witnesses or even presence at witness interviews—which threatened (if, in fact, there had been any bad behavior by the players beyond the common college-age issue of underage drinking) to provide the police and prosecutor with additional evidence for their campaign against the team.
  • On April 5, 2006, president of Duke issued a public statement falsely asserting that the players had a history of racist comments.

Beyond these errors of commission were errors of omission, such as:

  • Eighty-eight Duke faculty members—violating, as we now know, at least two Duke rules (regarding university payment of political ads and the method through which departments formally endorse political ads)—published a statement that, among other things, thanked protesters who had urged the lacrosse players’ castration and had distributed wanted posters with the players’ photos around campus. The Duke administration did nothing in response.
  • Several Duke faculty members engaged in in-class harassment against the players—behavior that seemed to violate both the Faculty Handbook and Duke’s anti-harassment policies. The Duke administration did nothing in response.
  • At least three faculty members (Peter Wood, Grant Farred, and Karla Holloway) made public statements that clearly violated the Faculty Handbook. The Duke administration did nothing in response.
  • A Duke employee—Tara Levicy—appeared to violate multiple best practices for SANE nurse behavior, harming Duke students in the process. The Duke administration did nothing in response.

Can Duke attorneys credibly assert that the above behavior constituted “Duke wait[ing] for the investigation by the police and the prosecutor to run its course” before taking any action?

The Legal

Duke cites North Carolina rulings to claim that it had no legal obligation to enforce either the student bulletin or the Faculty Handbook: “Plaintiffs fail, however, to allege the essential elements of any valid contract—the mutual manifestation of an intent to be bound . . . The North Carolina courts have consistently held, however, that bulletins of this nature—including Duke’s own student bulletin—are not binding contracts.”

Even if the item were a binding contract, Duke’s attorneys continue, the players’ lawsuit should be dismissed, because the players “have not alleged that they suffered any physical injury as a result of Duke’s alleged failure to enforce that policy.”

And, in an implicit defense of the Group of 88’s conduct, the Duke brief maintains that “anti-harassment policies must be balanced against principles of academic freedom”—i.e., if professors engaged in race/class/gender pedagogy are harassing students through statements or actions that reflect the professors’ academic worldview, such harassment is fair game.

Perhaps more than any other item in Duke’s 50-page response, that passage demonstrates just how damaging to Duke this lawsuit could potentially be. Duke’s attorneys base their claim on a 1991 case, Love v. Duke University, which held that the student bulletin didn’t constitute a contract. Love, therefore, is seemingly on-point in terms of legal strategy, although the claims in Love were much narrower than those in this case.

Beyond the legalities, however, ponder exactly what this filing says: that despite stated anti-harassment policies in the student bulletin, and a specific obligation in the Faculty Handbook that all Duke professors treat all Duke students with “respect” as fellow members of the academic community, in Duke’s legal opinion, these documents are just words. Parents of prospective Duke students, therefore, should have no expectation that administrators, professors, and even other students will abide by the provisions in the codes, and should have no expectation that the Duke administration will enforce these codes. Such a statement is a public relations nightmare.

Moreover, as any Duke student ever caught in the web of Dean Bryan’s Judicial Affairs Office can attest, Duke generally has enforced the student bulletin as if the University were legally obligated to do so. And looking over past editions of the Chronicle, I haven’t encountered other cases in which professors harassed students and the administration did nothing.

This pattern of practice, therefore, raises a troubling question: if Duke normally enforces both the bulletin and the Faculty Handbook, why did it not do so in this case? Was Duke’s behavior explicable by the fact that the targets were white males, and those allegedly violating the bulletin were politically correct African-American or feminist students? And was Duke’s behavior explicable by the fact that the targets were white males, and those allegedly violating the Faculty Handbook were professors whose race/class/gender pedagogy and “diversity” agenda dominates campus discourse?

A reader of the Duke motion also might experience a bit of intellectual whiplash. In a later section of their brief, the Duke attorneys argue that Duke administrators had no legal obligation to “care” for the lacrosse players, and therefore shouldn’t be held legally liable for urging the players not to tell their parents about the case, or for the decision to hire attorney/fixer Wes Covington. Why? Because, the Duke attorneys explain, “university educators and administrators . . . always remain charged with carrying out the ‘rules and regulations’ of the university.”

Yet, just pages before, these very same Duke attorneys had maintained that these very same “university educators and administrators” did not have to “carry out” the terms of the bulletin or Faculty Handbook—“the ‘rules and regulations’ of the university.”

How convenient.

Legal Effects

Unlike its discussion of Duke’s failure to enforce its anti-harassment policies or the Faculty Handbook, the Duke attorneys don’t even attempt a p.r.-based defense of Duke administrators’ March 2006 dealings with the lacrosse players. Nor does the brief even attempt a p.r.-based defense that Duke Police officers—in apparent violation of Buckley—handed over the lacrosse players’ keycard data to the DPD and Nifong—and then didn’t tell the lacrosse players that they had done so when, months later, the players successfully (or so they thought) fought the release of this information in court.

Instead, the Duke attorneys deny that “university administrator assumes a duty of care to a student by giving that student advice, however misguided or inadequate the advice may turn out to be [emphasis added].” Like so much else in this brief, I suspect that the University won’t be publicizing this point to prospective Duke parents. Allowing the players’ case to go forward, Duke’s attorneys maintain, could have a chilling effect: “Because such mentorship and guidance would be too risky under Plaintiffs’ theory of liability, students would be deprived of many important aspects of a university education that occur outside the classroom.”

Shouldn’t, however, a court want to “deprive” students of the kind of advice and guidance offered by Duke in this case? As Jim Coleman has pointed out, one effect of civil litigation is to provide a deterrent effect, and in this case, Universities should be deterred against administrators giving wildly “misguided” advice.

Regarding the key card data, the Duke attorneys concede that the key card data should have been protected under FERPA, but then blandly suggest, “Plaintiffs had no constitutionally protected expectation of privacy in that key card data.” In other words: yes, the law was violated, but Duke students have no “constitutionally protected expectation” that Duke employees won’t disclose their confidential data and then remain silent about the decision to do so.

How reassuring.

Historians should avoid predicting the future. But I believe I can say with certainty that Duke won’t be sending out any of the above passages to parents of prospective students in the Class of 2012.


leonidas said...

wow that's some damning material right there in the words of Duke's counsel. those of us who followed the case won't be surprised when the TV news misses it entirely; but thanks for the heads-up, KC.

my favorite line: "however misguided or inadequate the advice may turn out to be" - i read that as "yes Dean Sue really did screw the pooch by instructing the players not to alert their parents, but what are you gonna do about it? now let's have that tuition check, there you go, run along."

Duke stays losing as long as they continue this hopeless PR fight. I'll stay waiting for a settlement to happen.

Debrah said...

This post is yet another one of KC's brilliant mind sculptures.

A magnificent analysis.

"Was Duke’s behavior explicable by the fact that the targets were white males, and those allegedly violating the bulletin were politically correct African-American or feminist students? And was Duke’s behavior explicable by the fact that the targets were white males, and those allegedly violating the Faculty Handbook were professors whose race/class/gender pedagogy and 'diversity' agenda dominates campus discourse?"


And yes.

Duke is still hoping that manipulation of public opinion will work for them.

Debrah said...

Diva commentary on Zane's blog:

05/31/08 at 09:12

Yes, writer Zane.

We know all this.

What we don't know is if the media are capable and willing to move beyond their own "feelings" and just report the truth.

Let's bring this issue closer to home with Professor KC Johnson's latest analysis at Durham-in-Wonderland.

Will the local press be able to move beyond their seeming compliance with a cover-up and report the facts this time?

Will the local press be able and willing to report honestly on those in the academy at Duke who are trying to avoid responsibility for their actions?

KC dissects them here:

jim2 said...

I think that Duke is betting that the largely sympathetic MSM will not read any large documents and will indeed accept Duke-friendly summations. This, then, was indeed the purpose of the PR language cited by KC.

That is, Duke chose to accept any risks of alienating the judicial side because Duke considered high value in having those PR words there and ready to be offered and used as summary quotations.

Anonymous said...

The combined TENS of MILLIONS of dollars given by the BOSTOCKS, STEELS, MACKS, et all, to their DUKE causes, does not remove them from their responsibilities from the following:
1. violating 47 student athlete's civil rights( Wasiolic
advising-cooperate with police, without attorneys
don't tell your parents)
2. violating FERPA in March, then committing FRAUD
in May by informing the families they needed a
court order to prevent information from DUKE to
prosecutors office.
3. Flim flamming the 47 families for 11 months by false promises and refusing to sit with the group to discuss evidence.
4. Tuition at 50,000+ dollars per year( 13.5 scholarships are granted for 47 players/year) should mean these students are as equal as any others on campus, not OSTRACIZED. The group of "88" painted them guilty, and still 27 months later have not recanted. Some of the team now have Masters degrees, some are in Law School and the graduates are gainfully employed.
5. This cover up must be exposed and through the deposition process these TRUSTEES WILL BE ACCOUNTABLE.

Anonymous said...

This document is almost completely PR speak. A 12(b)6 motion is rarely granted, so long as the Complaint simply alleges a cause of action, assuming all allegations are true. I can count on one hand the number of 12(b)6 motions I've been granted - 3 to be exact, in 10 years of practice.

bill anderson said...

We now can see the consistency in Duke's strategy. First, Duke accused the Cooper Kirk attorneys of misconduct by having a website that (gasp) had the legal documents in the case.

Second, they blame it all on everyone else. However, there is a skunk at the garden party, and that is the suit against Durham. As we already have seen, some of the Durham parties are blaming Duke, and specifically Duke employee Tara Levicy, for this whole mess.

So, it should be quite interesting as we sit back and watch the show. The one thing this post did very well was to demonstrate that the emperor has no clothes. Duke is putting in legal documents that it reserves the right to abuse students in violation of its own rules whenever the people at the university desire to do so.

Anonymous said...

Let me make sure I understand the university's policy du jour.

"Harassment" is wrong if directed at an aggrieved, anointed minority, but okay -- because protected by "academic freedom" -- if directed at what the G88 consider the "oppressors."

Duke Prof

Anonymous said...

Good grief. What a tiresome brief. I do have a little sympathy for the Duke lawyers, however. This is a difficult case for Duke, and the arguments on behalf of Duke are just ugly. I do not hold out high hopes for Duke's success on the 12(b)(6) motion. And in the unlikely event Duke ultimately prevails on the merits, it is time parents renegotiate the higher education contract--to the extent a contract exists at all. One would love to know what precisely the University perceives its contractual obligations to be for $50,000 per kid per year. Perhaps the folks who rate schools should add a section ranking how well the policies and procedures of any given college under the laws of its particular state protect the interests of the students.


Jim in San Diego said...

I hope and trust Plaintiffs' attorneys are carefully monitoring DIW.

K.C.'s substantil legal experience and intellect, combined with his matchless command of the Hoax facts, makes for a formidable weapon against Duke doublespeak.

Jim Peterson

Anonymous said...

The filing by Duke demonstrates what mt father used to say to me - "be careful what you say (and by extension write) because it can come back to bite you where you least want it too". So, Duke feels that Wausiolek, a lawyer, is not accountable at all for giving unfortunate and misguided advice. What exactly is Duke accountable for in the fifty + thousand dollars that it so eagerly takes each year from the parents of its students? The answer obviously is not a whole lot. The "my bad" attitude that Duke has should give the parents of any perspective and current Duke student great cause for concern. In its filing, Duke has basically stated that it is ignorant of the law (FERPA rules don't exist in Duke-land) and it has engaged in a most grievous form of revisionist history(given the comments of historian Peter Wood of Duke's history department and Tim Tyson one can see that the administration of the university believes most strongly in supposition rather than facts)in order to argue that this is a case that has no merit. One can only hope that justice in North Carolina is truly blind (not composed of former Dukies who will feel a sense of obligation to protect their alma mater - given that it is wonderland that has to be stated) and will see this filing by Duke's high priced lawyer Jamie Gorelick is but another attempt to cast scorn on the players and their families - suggesting none too subtly that any harm that they may have suffered they deserved.

Anonymous said...

It will be interesting to see happens when Duke brings subsequent disciplinary or other actions against students or faculty based in whole or in part on alleged violations of its anti-harassment policies, the student bulletin, or Faculty Handbook and the alleged violator defends by citing Duke’s own brief for the proposition that such policies, etc. are not enforcible because they are “not binding contracts”.

Anonymous said...

Two of the brightest students in my son's class of about 90 have been accepted to--and are planning to attend--Duke. All of your poison spewing doesn't seem to bother the really good students...

Debrah said...

TO 5:00PM--

I hope those "really good students" are paying their own way.

I also hope they take a class from the illustrious Tim Tyson.

He can teach them that when they get out into the world, they'll be able to get by with anything if they start talking about MLK and "the Lord".

Now that's a very good lesson, indeed.

Anonymous said...

If the discovery shows the conspiracy as alleged, Duke is fried. Evidence of the allegations made by the plaintiffs will make this posturing irrelevant. The smoking gun emails and the defendants who turn on each other will be so sensational that no amount of peeing in the jury pool will matter.
One might look for the areas of focus in this brief (legal advice given to the plaintiffs, the Tara the "nurse" to spot areas where the dukies are particularly worried about what discovery will show.
This brief is PR for the jury pool and padding for the lawyer billables.

Anonymous said...

I hope that the parents of those two bright students in your son's class have instructed their children to be very selective in the courses that they take. I also hope that they are not white, male, or athletic. Otherwise, your son's friends' parents might do well to line up a good lawyer and makecertain that their financial affairs are such that they can call upon them easily when the Durham police decide to flout the law. I hope that the parents do not expect that the Duke administration will be of any help.

Anonymous said...

Guys...I don't think you really understand. As long as the brief isn't legally adequate to stop the suit, it little matters what it says, other than Duke possibly digging its current hole even deeper.

If the case goes forward, DISCOVERY WILL KILL DUKE. Fortunately (for Duke, at least), Duke has a sufficient endowment to buy off ALL the Lacrosse players and their lawyers, and will clearly do so to avoid the evidence that would be turned up in discovery being made public.

But while deep pockets may allow them to hide their sins, it scarcely makes them noble, does it?