The unindicted players represented by Chuck Cooper have filed a powerful response to Duke’s motion to dismiss. Summarized below, it addresses not only the legal arguments offered by Jamie Gorelick and Dan McLamb, but also the (scarcely credible) p.r. spin that the Duke attorneys chose to include in their legal filing.
The motion concludes, “Throughout the crisis, Richard Brodhead . . . and other Duke officials consistently sacrificed the rights and interests of the accused Duke students in an effort to avoid embarrassment to Duke and to minimize criticism of its administration. Mangum’s explosive allegations had created an angry mob led primarily by activist Duke faculty members, student protestors, and a hostile media, and the mob immediately rushed to condemn the lacrosse players, to intimidate and denounce the team’s defenders, and to demand the team’s swift and severe punishment. Brodhead repeatedly succumbed to the mob’s demands, and he effectively condoned its actions.”
The motion targets Brodhead, who the players’ attorneys correctly recall described himself as “fully responsible for Duke’s statements and actions throughout the rape hoax crisis.” (BOT chairman Bob Steel then issued a statement adding that the Trustees agreed with all of Brodhead’s acts.)
The three-pronged critique of Brodhead’s behavior:
--“Brodhead and Duke failed to disclose, and actively suppressed, material exculpatory evidence in Duke’s exclusive possession; discredited exculpatory evidence that had been publicly disclosed; and refused to review exculpatory evidence compiled by the players’ defense counsel.”
--“Brodhead and the University looked on passively as activist members of the Duke faculty and student protestors waged an extraordinarily vitriolic public campaign of abuse and harassment against the innocent lacrosse players,” culminating in the Group of 88’s statement, which made “unmistakably clear that its faculty sponsors believed that the rape had occurred, and it thanked the student protestors “for not waiting” to “mak[e] your selves heard” and exhorted them “to turn up the volume.” The ad was paid for with University funds and listed fifteen academic departments and programs as its sponsors. Brodhead took no steps to enforce Duke’s applicable anti-harassment policy; nor did he criticize, let alone discipline, the activist professors and student protestors; nor did he even disassociate the University from their shameful actions and statements. Accordingly, he implicitly condoned these actions and statements and made Duke responsible for them.”
--“Brodhead issued a series of carefully timed public statements and imposed a series of increasingly severe disciplinary measures on the team in an effort to satisfy the mob’s demands for immediate and severe sanctions against the team and to distance Duke and its administrators from the intense public hostility that had been focused on the innocent lacrosse players. The intended and inevitable effect of Brodhead’s statements and actions was to impute guilt to the players and to further inflame public opinion against them.”
Having responded to the Gorelick/McLamb p.r. spin, the Cooper brief then addresses the Duke legal arguments. Two of the brief’s elements—on Duke’s role in handing over student keycard information to Durham authorities, and on Duke’s claim that it has no legal obligation to enforce its own Faculty Handbook and anti-harassment policies—form the intellectual center of the brief.
1.) The Cooper brief argues that Duke’s release, without a warrant, of FERPA-protected student keycard records to Durham authorities is grounds for civil liability—especially since Duke didn’t tell the court that it had already improperly turned over this information when Mike Nifong subsequently subpoenaed it, in summer 2006.
There’s no doubt that Duke’s conduct in this regard action was improper. In its brief, Duke claimed that administrators and Duke police merely neglected to tell the players and their families that this information had been turned over improperly. The players’ response counters that Duke effectively perpetrated an “elaborate charade,” a fraud on the court, when—as Nifong unsuccessfully sought a subpoena for the records—Duke acted as if the records hadn’t already been turned over.
As I’ve noted previously, it’s very hard to develop an innocent explanation for Duke’s behavior on the keycard issue. And, the players’ attorneys contend, this record suggests that Duke was acting “under the color of state law,” in concert with Durham authorities, and therefore opening up the University to civil liability.
2.) The Cooper brief maintains that Duke should be held liable for failing to enforce its anti-harassment policies and allowing the players to be subjected to harassment.
There’s no doubt that behavior of anti-lacrosse faculty and students violated both the Duke Faculty Handbook and the university’s anti-harassment policies. Nor is there any doubt that Duke’s administration was either unwilling or unable to enforce those documents. Duke’s response, however, maintained that it had no legal obligation to enforce either of these documents.
If this case gets to trial, this issue will be the most significant one for educational administrators nationally. Citing a variety of cases, the Cooper brief maintains, “There is a national consensus that ‘the basic legal relation between a student and a private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract,’ as does a duty to act in good faith.” The brief also takes on Love, the North Carolina case cited prominently by Duke, arguing that it was based on a far different type (grading) of claim--the sort of issue on which courts almost always have deferred to academic institutions.
Duke also raised a number of other objections to this point: (1) the claim that the terms of the Faculty Handbook and the university’s anti-harassment policies included an unspecified “academic freedom” exception; and (2) that neither document constituted a contract because Duke could change them unilaterally.
As the plaintiffs point out, however, the academic freedom exception makes no sense: “By creating and promulgating those written policies, the University already struck the balance [between anti-harassment and academic freedom] it deemed appropriate; Plaintiffs merely ask the court to hold the University to its express promises. Moreover, the severe and prolonged harassment to which Plaintiffs were subjected can hardly be considered a legitimate expression of academic thought or an appropriate punishment for acts the University knew or should have known Plaintiffs did not do.”
Secondly, the players’ attorneys argue, while it’s true Duke has the unilateral right to change the terms of its bulletin, it didn’t do so in this case. Moreover, in a critical passage, the Cooper brief holds:
More importantly, even if the University could and did reserve the right to alter unilaterally the Bulletin’s anti-harassment policy and procedural protections prospectively, it surely could not have altered these policies retrospectively. Nor could Duke reasonably have expected that Plaintiffs would believe that the University could dispense entirely with such fundamental protections, as it in effect did in the course of the rape hoax. No prospective student or parent would select a school that reserved the power to permit and even foster the harassment of the student or to vilify and punish the student for acts the school knew or should have known the student did not do [emphasis added].
The brief also makes an intriguing argument about the University’s liability for the protests directed at the players’ private residences, asserting, “Many of the protests that invaded the privacy rights of Plaintiffs were organized and encouraged by members of Duke’s faculty, for whose conduct the University is liable.” Indeed, this pattern started with Duke adjunct professor Faulkner Fox’s role in organizing the potbangers’ March 25/26 protests.
The brief also touches on several other matters, two of which are most significant:
1.) Contrary to the Duke filing, the players’ brief contends that administration did engage in a pattern of “extreme and outrageous” infliction of emotional distress, including the following:
--attempted to suppress and then discredit Christopher Day report, while allowing then-SANE nurse-in-training Tara Levicy to mischaracterize evidence in Duke’s possession;
--“through local and national media, Defendants repeatedly maligned Plaintiffs alternately as racially motivated gang-rapists or accomplices who had built a “wall of silence” to protect those rapists”;
--passively observed protesters who either violated Duke procedures or threatened bodily harm to the players;
--punished players unfairly, including cancelling the season and subjecting them to a (public, and procedurally awkward) disciplinary investigation;
--cut corners legally, including seeking to arrange the odd Covington representation, working with Durham Police officers to allow unsupervised dorm-room interrogations, and improperly handing over FERPA-protected key card records.
2.) Duke assumed a role of providing legal advice to the players, and therefore is responsible for the bad advice provided.
The key legal issue on this point is whether the University had a fiduciary relationship with the players. Duke, in its brief, said no, citing a 2001 case (Davidson v. University of North Carolina) whose terms the players’ response disputed.
The players’ response said yes, citing a 1999 case (Madey v. Duke) which held that “a fiduciary relationship may exist under a variety of circumstances, and exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.”
To make their case, the players’ brief argues that Duke administrators “assumed a special role of trust. Defendants deliberately and affirmatively attempted to – and for a time did – displace the people who would ordinarily have advised the players in this situation pursuant to a confidential relationship – namely, the players’ parents and lawyers.” In that respect, the attorneys claim, Duke’s behavior was not academic or administrative but legal in nature.
Duke’s brief maintained that allowing a lawsuit on these grounds would expose universities to frivolous lawsuits (“Don’t like the course your faculty advisor urged you to take? Sue the university!”) The players’ response: “Here, Defendants intentionally or recklessly gave advice at war with the players’ interest because they intended to protect Duke, even at the expense of Plaintiffs.”
If the motion to dismiss fails, the issues raised in this brief show why this case will be watched by every university counsel’s office in the country.