Monday, May 11, 2009

Why Love Is Bad Law

“The Duke bulletin is not a valid contract.”

Of Duke’s hundreds of pages of filings in the lacrosse case civil suit, that sentence is perhaps the most striking. Duke’s official publications and website tell students that they will not be harassed on the basis of race, class, or gender; and that professors will treat all Duke students with respect, as fellow members of the academic community. But, as Duke’s attorneys have made clear, the University believes it has no legal obligation to actually enforce these admirable provisions. (I have found nothing in Duke’s admissions material communicating this message to prospective Duke parents.)

Duke, of course, has implemented both the student bulletin and the faculty handbook on many occasions. (Just ask the hundreds, if not thousands, of students who have gotten caught up in University disciplinary proceedings.) The lacrosse case, however, provides a perfect illustration of when University administrators will refuse to enforce both documents: if race/class/gender activists among the faculty decide to target select groups of undergraduates to advance their pedagogical or ideological agendas, Duke considers itself under no obligation to uphold its own policies to protect its own students.

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Duke’s attorneys based their assertion on a 1991 case, Love v. Duke University, which involved a Hispanic graduate student named John Love. In 1984, Duke kicked him out of its biochemistry graduate program after Love failed to complete all five of his spring semester classes. In 1986, the program readmitted him—and he promptly flunked out again. Incredibly, Love then sued, claiming discrimination on the basis of ethnicity.

Love added a breach of contract claim, noting that between the 1983 and 1986 versions of its student bulletin, Duke had shortened the length of time before which biochem students needed to take their preliminary exams. Love claimed that he should have been granted the longer period available in the 1983 bulletin. At least in the description of the case, there seemed to be no reason to believe that the extra time would have made any difference for Love. Indeed, Duke gave Love nine months beyond the deadline to pass his preliminary exams, and he failed to do so.

Love’s allegations were pathetically weak. Judge Richard C. Erwin noted that he had presented no evidence—beyond the fact of his ethnicity—to prove his claim of discrimination. Most of Erwin’s decision discussed Love’s discrimination claim, but, almost as an aside, the district judge also addressed the breach of contract issue. Erwin noted that Love’s argument made little sense: because the student had been kicked out, Duke had the right to condition Love’s readmittance on his following the 1986 bulletin. In any case, Erwin noted that even wording in Love’s brief seemed to concede that the student was subject to the 1986 bulletin’s terms.

Having dispensed with Love’s argument, Erwin could have concluded his opinion. Instead, he asserted,

The court is of the opinion that no contract existed between Love and Duke University. Particularly, the academic bulletin is not a binding contract . . . As previously stated, this court finds that a binding contract did not exist between plaintiff Love and defendant Duke University. This finding is based on Love’s claim that the University Bulletin created a binding contract between Love and the university . . . Since the court finds that the University Bulletin was not a binding contract between Love and defendant Duke, the defendant's motion for summary judgment on the state law contract claim is granted.

Judge Erwin did not cite a single case to explain why he decided that “the academic bulletin is not a binding contract.” He offered no description of how he reached this decision, and didn’t present a single argument on behalf of his opinion. Erwin simply made the assertion as if no credible alternative existed.

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Anyone whose sole exposure to higher education law came from Love would be stunned to discover passages such as those below:

From a 1972 case, Zumbrun v. University of Southern California:

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. (Carr v. St. John's Unversity, New York (1962) 17 App.Div.2d 632, 633 [231 N.Y.S.2d 410, 413], affd. 12 N.Y.2d 802 [235 N.Y.S.2d 834]; Anthony v. Syracuse University (1928) 224 App.Div. 487, 489-490 [231 N.Y.S. 435, 438-439]; Goldstein v. New York University (1902) 76 App.Div. 80, 82-83 [78 N.Y.S. 739, 740]; People ex rel. Cecil v. Bellevue Hospital Medical College (1891) 60 Hun 107 [14 N.Y.S. 490], affd. 128 N.Y. 621 [28 N.E. 253]; John B. Stetson University v. Hunt (1925) 88 Fla. 510, 517 [102 So. 637, 640]; University of Miami v. Militana (Fla.App. 1966) 184 So.2d 701, 703-704; Barker v. Trustees of Bryn Mawr College (1923) 278 Pa. 121, 122 [122 A. 220, 221]; Greene v. Howard University (D.C. Dist. Col. 1967) 271 F.Supp. 609, 613; see Dixon v. Alabama State Board of Education (5th Cir. 1961) 294 F.2d 150, 157, cert. den. 368 U.S. 930 [7 L.Ed.2d 193, 82 S.Ct. 368]; Searle v. Regents of the University of California (1972) 23 Cal.App.3d 448, 452 [100 Cal.Rptr. 194].)

From a 1992 case, Ross v. Creighton University:

It is held generally in the United States 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.” Zumbrun v. University of Southern California, 25 Cal.App.3d 1, 101 Cal.Rptr. 499, 504 (1972) (collecting cases from numerous states). Indeed, there seems to be “no dissent” from this proposition. Wickstrom v. North Idaho College, 111 Idaho 450, 452, 725 P.2d 155, 157 (1986) (quoting Peretti v. Montana, 464 F.Supp. 784, 786 (D.Mont.1979), rev'd on other grounds, 661 F.2d 756 (9th Cir.1981)). As the district court correctly noted, Illinois recognizes that the relationship between a student and an educational institution is, in some of its aspects, contractual. See Steinberg v. Chicago Medical School, 69 Ill.2d 320, 13 Ill.Dec. 699, 371 N.E.2d 634 (1977) (agreement that medical school application would be evaluated according to the criteria described by the medical school in its literature); DeMarco v. University of Health Sciences, 40 Ill.App.3d 474, 352 N.E.2d 356 (1976) (refusal to award M.D. degree for reasons unrelated to academic qualifications constitutes breach of contract).

From a 1998 case, Thornton v. Harvard University:

Courts have held that the basic legal relationship between students and universities is contractual in nature. Mangla v. Brown Univ., 135 F.3d 80, 83, 1998 U.S. App. LEXIS 1598, (1st Cir. 1998); Russell v. Salve Regina College, 938 F.2d 315, 316 (1st Cir. 1991). “The terms of the contract may include statements provided in student manuals and registration materials.” Mangla, 135 F.3d at 83; Lyons v. Salve Regina College, 565 F.2d 200, 202 (1st Cir. 1977), cert. denied, 435 U.S. 971, 56 L. Ed. 2d 62, 98 S. Ct. 1611 (1978). “The proper standard for interpreting the contractual terms is that of 'reasonable expectation -- what meaning the party making the manifestation, the university, should reasonably expect the other party to give it.'“ Mangla, 135 F.3d at 83 (quoting Giles v. Howard Univ., 428 F. Supp. 603, 605 (D.D.C. 1977).

From a 2007 case, Kashari v. California Board of Regents:

The basic legal relationship between a student and a private university is contractual in nature. Courts have recognized that a contractual relationship applies equally to state universities. Indeed, there seems to be almost no dissent from the proposition that the relationship between a public postsecondary educational institution and a student is contractual in nature.

These cases, of course, all come from different states or circuits than Love. Nonetheless, their findings—coupled with the extensive citations—beg the question of why Judge Erwin did not think that “courts have held that the basic legal relationship between students and universities is contractual in nature.”

Courts that have wrestled with the problem in a way that Erwin did not have come to a more nuanced—and intellectually defensible—position. Take, for instance, the Ross v. Creighton University case quoted above. The Ross court noted that the courts “would not recognize all aspects of a university-student relationship as subject to remedy through a contract action,” since “a decision of the school authorities relating to the academic qualification of the students will not be reviewed.... [C]ourts are not qualified to pass an opinion as to the attainments of a student ... and ... courts will not review a decision of the school authorities relating to academic qualifications of the students.”

[As an aside, this standard makes Duke’s decision to settle the Kim Curtis grade retaliation case with a public announcement of a grade change so stunning: for the reason presented above, universities almost never lose grade retaliation cases.]

But, the Ross court held, this inclination to avoid involvement in the minutiae of academic matters doesn’t mean that the courts must stand idly by when universities fail to enforce their own promises to students. The plaintiff, wrote Ripple, “must point to an identifiable contractual promise that the defendant failed to honor . . . the essence of the plaintiff's complaint would not be that the institution failed to perform adequately a promised educational service, but rather that it failed to perform that service at all. Ruling on this issue would not require an inquiry into the nuances of educational processes and theories, but rather an objective assessment of whether the institution made a good faith effort to perform on its promise.”

Kashmiri employed a similar analysis. The courts, it held, could not second-guess academic decisions: “The student-university relationship is unique, and it should not be and can not be stuffed into one doctrinal category. Universities are entitled to some leeway in modifying their programs from time to time to exercise their educational responsibility properly. Additionally, courts have often deferred to any challenge based in contract to universities' academic and disciplinary decisions.”

What about the relevance of the bulletin? Kashmiri held, “Whether a given section of the bulletin or catalogue becomes part of the contractual obligations between the students and the university must depend upon general principles of contract construction. Thus, the case law recognizes that, like all obligations imposed pursuant to implied contractual terms, the contractual obligations imposed by the language in catalogues center around what is reasonable. Implied contractual terms ordinarily stand on equal footing with express terms.

And so, for instance, if Duke brought disciplinary actions against hundreds of students based on the terms of the student bulletin; or if Duke regularly evaluated its professors according to the terms laid down in the faculty handbook, it would be reasonable for students to consider the bulletin and the handbook to be implied contracts.

One other section of Kashmiri spoke directly to an item in the Duke filings. The ruling held, “The University had complete control over what language to use in its catalogues and on its Web sites. It is well established that “[i]n cases of uncertainty not removed by [other] rules, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist.”

Duke’s motion to dismiss admits that University policies might require Duke professors to treat all students with respect as fellow members of the academic community; and not to harass them on basis of race, class, or gender—but, it claims, the University should not held be legally liable for its failure to enforce its own policies against those professors, because the institution’s “policies must be balanced against principles of academic freedom.”

There’s only one problem with this argument: to quote Kashmiri, “The University had complete control over what language to use in its catalogues and on its Web sites,” and nowhere in its catalog or website did Duke mention that an “academic freedom exception” exists to its policies regarding faculty treatment of students. The University can’t really invent such an exception after the fact, to cover up for a group of faculty who decided that they could best advance their own pedagogical and academic interests by targeting their institution’s own students.

-------------------------

Love’s handling of the status of a bulletin was, in short, an intellectually lazy decision that set aside traditional thinking on the nature of contracts in higher education law without bothering to offer a single case or even a single reason to substantiate the opinion.

But even if Love’s opinion on the status of a bulletin was correct, changes in the nature of the academy would highlight the dangerous standard that Judge Erwin applied. In the academy of the 1980s, faculty peer pressure—if nothing else—would have mitigated against or prevented altogether the sort of behavior we saw in the Duke case. Even if a few bad apples—say, someone like Houston Baker—might have misbehaved, enough intellectual diversity existed among the faculty for professors to have stood up and demanded that the administration enforce Duke policies.

In this sort of environment, a “breach of contract” charge would have been far more likely to have focused on exactly the kind of picayune detail at the heart of the Love case (was an exam required within 36 months or 24 months?) than on an issue of fundamental academic importance (can faculty go after their own students if they think that doing so will advance their pedagogical interests?).

The 23 years since Duke expelled John Love, however, has featured an academic revolution. A glance through the homepage of the Foundation for Individual Rights in Education (FIRE) testifies to the war on student rights—ranging from speech codes to the Univ. of Delaware’s Orwellian “diversity” residential affairs program. The composition of the faculty, meanwhile, has changed radically: the triumph of the race/class/gender paradigm in the humanities and (most) social science departments has combined with an obsessive emphasis on “diversity” (except of the intellectual and pedagogical type) to produce a faculty wildly skewed in one direction on key pedagogical and intellectual issues.

As the Duke case spectacularly demonstrated, no one can count on peer pressure to ensure that “activist” faculty members behave according to minimal professional standards. In such an atmosphere, saying that the faculty handbook and student bulletin don’t constitute legally binding documents amounts to saying that the two guides aren’t worth the scraps of paper on which they’re written.

In short, in the contemporary academy, the written requirements of the bulletin or the faculty handbook can provide the only defense against faculty groupthink. Love, in this respect, is not only bad law: it’s disastrous for higher education.

73 comments:

Anonymous said...

In other words, Duke's expensive legal team has positioned the University behind that age old legal theory(supported by Judge Erwin's poor decision in Love v. Duke) that "the inmates are free to run the asylum". Or , a more accurate view, "THe contract bewtween institution and student is a contract only when we (administration) want it to be interpreted as one."

The blanket of "academic freedom" that Duke wraps itself in as a defense allows stupid, if not illegal, actions to be perpetrated by the university and its faculty members without fear of penelty.

We can only hopr that the current Duke cases are assigned to judges who have the courage to protect all who gather in search of truth, both student and teacher.

Bill Anderson said...

K.C.,

My sense is that John Love did not appeal the decision, or at least that part of the decision. It will be interesting to see if the judge (1) throws out the entire case based upon Love, and (2) if so, would the attorneys appeal that decision based upon the readings of the law.

What I do find interesting is that none of the other cases you mention cited Love. I am sure that the other attorneys were not ignorant of that case, but rather decided that it was irrelevant.

Duke is claiming that no matter how outrageous the conduct of the faculty and administration toward students. the university is not accountable for what it does. Faculty members at Duke engaged in behavior that would be unimaginable at most universities; I, for one, cannot imagine being able to single out students in my classes and personally attack them on the basis of their race, sex, and social status, and then have the university back me.

As for peer pressure at Duke, it is obvious that the pressure went the other way. Any faculty members who made public statements that contradicted with the G88 was subjected to public harassment and insults, not to mention a slew of nasty emails.

We can liken the G88 to a pack of blue jays or maybe the Snopes family in Faulker's The Hamlet. It is up to the administration to reel them in, but since the university decided, instead, to champion frauds like Houston Baker and Wahneema Lubiano, we see that option was not going to occur.

If the university's response can be reduced to one sentence, it is this: We are Duke, and you're not.

Anonymous said...

Comments: 1Read Comments Leave a Comment May 11, 2009 --


KC FYI from today's NY Post Page Six on Selena Roberts...
http://www.nypost.com/seven/05112009/gossip/pagesix/espn_banning_selena_roberts_168688.htm

Keep up the Good Work !

KRV T-78



ESPN is blackballing the hottest reporter of the week because she snubbed the sports network and gave her first interviews to Bob Costas and the "Today" show. Selena Roberts' book "A-Rod: The Many Lives of Alex Rodriguez," out last week from HarperCollins, made headlines with allegations the game's highest-paid player took ster oids. Roberts, who rejected a job offer from ESPN and joined Sports Illustrated a year and a half ago, is willing to appear on ESPN, but the sports net work won't put her on. "By the time we had a chance to put her on, the story was four days old," ESPN spokesman Mike Soltys told Page Six.

halides1 said...

KC,

Thank you for a very thought-provoking post. I am not sure what Duke is claiming. If the faculty handbook and student bulletin are not contracts, then what are they?

Chris

Anonymous said...

Beautiful analysis.

Observer

AMac said...

Bill Anderson wrote (5/11/09 6:50 AM) --

"Faculty members at Duke engaged in behavior that would be unimaginable at most universities..."

I think this is precisely backwards. It is easy to imagine transposing the rush-to-judgment behavior of the forty-some faculty members of the Group of 88 from Duke to some other U.S. university.

Duke was 'unlucky' the way U.C. was unlucky in hiring and promoting Ward Churchill, and the way the University of Delaware was unlucky in sponsoring the Diversity Training that K.C. links.

By the way, Harvard Medical School currently mandates that med students participate in a 20-hour Diversity Training Program that seems patterned on Delaware's. So I guess Harvard shares Duke's luck, as well.

Anonymous said...

While the relationship between a university and its students may be contractual in nature, Duke’s student bulletin contained the following clause:

“The university reserves the right to change programs of study, academic requirements, teaching staff, the calendar, and other matters described herein without prior notice.”

Therefore, the student bulletin did not contain the essential elements of a valid contract: an “identifiable contractual promise” and a “manifestation of an intent to be bound” by that promise. Mercer, slip op. at 13; Parker v. Glosson, 182 N.C. App. 229, 232, 641 S.E.2d 735, 737 (2007). As Love held, because the student bulletin does not include these elements, it cannot constitute a binding contract between Plaintiffs and Duke University. [1]

---
1. See, e.g., Southwell v. Univ. of the Incarnate Word, 974 S.W.2d 351, 356 (Tex. Ct. App. 1998) (student bulletin not a contract where university “reserve[d] the right to change or alter any statement herein without prior notice”); Millien v. Colby College, 874 A.2d 397, 401-402 (Me. 2005) (student handbook was not a binding contract where college “reserve[d] the right to make changes at any time without prior notice” to the handbook);

Anonymous said...

KC -

Do the hundreds, if not thousands, of students who have gotten caught up in University disciplinary proceedings have any claim against Duke at this point? If the bulletin is not a contract, they how could/can they be disciplined? And what does this mean for any future student who gets caught up in Univeristy disciplinary hearings?

gtp

Anonymous said...

Somewhat (but not too much) OT:

Does anyone have an explanation for Stanley Fish's philosophical conversion from the Father of the Race/Gender/Class Uber PC Environment at Duke to the author of "Save the World on Your Own Time?" See link below.

http://www.oup.com/us/catalog/general/subject/Education/?view=usa&ci=9780195369021

Observer

Anonymous said...

Re: 10:18's comment that, '“The university reserves the right to change programs of study, academic requirements, teaching staff, the calendar, and other matters described herein without prior notice.”

Therefore, the student bulletin did not contain the essential elements of a valid contract: an “identifiable contractual promise” and a “manifestation of an intent to be bound” by that promise.'


Does that mean that my credit card agreement is not an enforceable contract because it states,

"We may amend this Agreement at any time. We may amend it by adding, deleting, or changing provisions of this Agreement. We may increase or decrease any or all of your APRs."

I hope so!!

Anonymous said...

gtp's question is an excellent one. Thousands of schools across this nation (colleges and secondary institutions) operate with a student handbook and a faculty book as well. The one at my own school requires both a student and parent signature that the student will abide by the terms stated in the handbook for student behavior and states "This is to certify that we have read this edition of the (my school's name)for students and parents of 08-09 and that we are familiar with and agree to abide by the policies of (my school's name) as here outlined. Furthermore signing below also signifies acceptance of and use of and concurrence with the "Computer Acceptable Use Policy" as outlined on pages 29-30 and the "Release of School Liability of School Website" (page 30) of the Handbook/Planner. Please note that the signatures below must be the authentic signatures of the persons so specified."
This handbook lists what the students are to do (and what the consequences will be if they don't) as well as what they can expect in return from the school authorities.
Additionally, we have a faculty handbook which spells out quite clearly what the expectations are for all school employees and what will happen if we fail to carry out those duties or abide by the terms of the handbook. This is signed each year (you have to indicate that you have read it and there are always some slight changes). This is, of course, in addition to the contract that each teacher signs in which pay, sick days, benefits, courses to be taught, etc. are listed.
Everywhere that I have taught there has been a faculty handbook and a student handbook. Ihave always assumed those to be contracts. I guess that they would be considered contracts everywhere except at Duke.
cks

f1guyus said...

Actually when you boil it all down what this statement says is "We're Duke University and we're bigger that you are. Sit down and shut up." After a 50+ year working life I know how to boil stuff down.

Anonymous said...

If not a contract, then does it rise to the level of a policy?

And if the policy is not followed, are there any consequences?

The lawyers I talk to say the only thing worse than having no policy is having a policy and not following it. Of course, the policy issue may only arise in the context of trying to stay clear of explicit requirements under the law regarding things such as hiring, promotion and termination practices or consumer, mortgage and commerical lending practices, etc.

Jim in San Diego said...

Wonderful analysis.

There is an additional argument.

Contracts may be explicit (written) or implied (from policy, behavior, experience, expectations).

To the extent that the student bulletin reflects policy, whether or not the bulletin is itself a "contract", one would think that policy could well create an "implied" contract.

At least in our jurisdiction, implied contracts can be enforced.

Jim Peterson

Anonymous said...

Once again proving the old adage, "Love Hurts" :)

I haven't read the opinion. But if (as KC asserts) "Having dispensed with Love's argument, Erwin could have concluded his opinion" prior to asserting that "the academic bulletin is not a binding contract" that portion of the Love opinion should be considered dicta, and therefore not binding on any future court (and without some analysis it seems to me it should not even carry any weight with other courts).

The classic elements of a contract exist: 1) an offer (come to Duke), 2) acceptance (came to Duke) and 3) consideration ($40,000/year).

Would it be reasonable for students to rely on the promises contained in these publications? Duke has apparently been treating these publications as binding, i.e., by enforcing them against the students.

It seems unconsionable that a court would hold a boilerplate one-sided opt-out clause as vitiating the contract.

-RD

Anonymous said...

Originally, didn't universities want to get away from the notion that they were "in loco parentis" relationships with their students so that they could not be held responsible for a student's actions while at their school? Then, they claimed that their relationship was contractual.

Jim in San Diego, I don't think it will matter much anyway, since legal contracts don't seem to be binding in 2009.

drew said...

If I were one of the (presumed) hundreds of students that have been brought up on administrative charges by the University, and then punished for a "violation" against any of the provisions of the Student Handbook, I should think that Duke's filing would provide some means of making a valid claim for any monetary or other damages against Duke. The University cannot have it both ways, by using the handbook as a cudgel when it suits Duke's purposes, and then disclaiming any obligations on its part when it wishes.

I'm not a lawyer (thankfully, and for many reasons), but I think this is called "collateral estoppel" when the nature of the contract would be argued in from both (and mutually exclusive) perspectives from the same litigant. It is the reason that many suits are thrown out of court on summary judgment, since a party cannot argue both sides of a dispute in different matters, if the matters are close enough in nature. Whether the two "sides" of the binding contract argument are sufficiently similar and exclusive is for a judge to decide; however, I'd love to see a student dismissed from Duke on a violation of the handbook provisions seek recompense from that same institution now that Duke has argued that the handbook is not a contract.

I admit that I am not aware of the internal judicial processes at Duke, and/or whether or not there is some agreed document in the process that "fixes" what rules apply and which do not; however, I would presume that the handbook is the basis of many of the violations that are brought in the judicial proceedings.

Even those proceedings that we can all agree are valid (i.e., for plagiarism) must be brought under the basis of some document, not under a loose-knit concept that plagiarism=bad. While I might agree with the outcome in the plagiarism case, I cannot abide by the hypocrisy in the Duke filings.

Anonymous said...

Duke is arguing what it must to keep from paying out big bucks. Remember the strategy is not to win in court. If they could win, they would be rushing toward trial instead of stalling. You can tell that Duke thinks they have a weak case by the way they act toward discovery and moving toward trial.
Rather, Duke's strategy is to delay and raise the personal cost to the players for continuing to insist on righting the wrongs of the administration. Every time someone asserts that "something" happened, it both increases potential damages and discourages the players and their families from continuing.
Which will win? Gorelick hopes she can hold off long enough and inflict enough pain that the players and their families will move on.

Gary Packwood said...

KC said...

...(Just ask the hundreds, if not thousands, of students who have gotten caught up in University disciplinary proceedings.)
::
Now we are getting into the meat of the matter and I suggest a Google search using the following search string for interesting reading.

University+disciplinary+proceedings

You will find information here about the actual Kangaroo Court systems across the country that operates within the University Office of Student Affairs without faculty oversight and outside of the Constitution of the United States. The Duke system is thought to be a 'model' system for the country.

Most undergraduate students are quite intimidated by the University Disciplinary Proceedings unless one or both of their parents are ATTORNEYS.

Students with parents who are attorneys know this disciplinary system to be a Kangaroo Court with employees who actually believe they are part of the educational process. And extremists faculty dream of the day when the internal Kangaroo Court rules and proceedings will replace the law-of-the-land (North Carolina and The United States).

Lets see. Hmmm. Are any of the parents of Reade or Dave and Collin, attorneys?

University employees who work within the 'Judiciary' are actually quite intimidated by students whose parent(s) are attorneys and live for the day when they can 'snag' one of these kids doing something really awful...other than porch pissing, of course.

Once a person is hired to work within the Judiciary System of a university their career aspiration are limited to university work. Who would hire a non-attorney to work within a Kangaroo Court in any community? Job protection is therefore central to the daily work of the Student Judiciary system to include students who volunteer to sit on 'juries' and help prepare subpoenas.

Subpoenas? Really?

Fortunately, most universities have limited budgets and The Judiciary System is not a high priority. Such is not the case with Duke.

This summer ask your children, young relatives and acquaintances about their University Judiciary System. You will be amazed.

The rules and process around the University Judiciary system is where the G88 obtained and sustain their power and influence.

Duke University Office of Judicial Affairs (even)
http://tinyurl.com/pfocum

This is NOT the era of your father's Animal House!
::
GP

Anonymous said...

Fun with English (Part I)

[This is cross-posted at the Duke Chronicle website, which has done a "perspective" article about the year 2006 around Duke. The article can best be described as "Group of 88"-friendly.]


I can think of a thousand better descriptors for Crystal Mangum than "exotic dancer," unless
flopping on the floor like a cod or playing dead like a possum constitutes dancing. I will concede that what she did would be exotic in the strictest sense of that term.

The evidence suggested a much greater history of prostitution than dancing. She admitted to a vibrator show during that week, the DNA of 5-6 unidentified males was found in and on her, and her driver documented a frequent history of dropping Mangum off at motel rooms for an hour of capitalism. Would the Chronicle refer to Jeffrey Dahmer as a serial killer or a kidnapper and
gourmand? Does the skin color of the person make a difference?

Other examples of more accurate
terms would include "the
lying," "the grifter known as," "the false accuser," "the
hooker," "the Louvre of DNA," "the
serial prevaricator," "Cash's
girl," "the sista grifta," "the
girl who apparently unscrewed the top off a sperm hydrant and played
underneath it all afternoon" or "the lying and allegedly mentally diseased."

Moreover, the term "exotic dancer"
implies some modicum of physical beauty, which was not the
case. Now, if you were to describe
the tap dance that Richard Brodhead did around the
politically correct and charged
issues as "exotic dancing," I
would at least applaud your
imagination.

Finally, this malapropism is
allowing the criminal to describe
herself. The Duke Chronicle,
apparently without thinking, has
just re-used the description that
the lying prostitute and grifter
gave to herself in that first
Samiha Khanna N&O article. To be
fair, in the future the Chronicle
should refer to Drew Peterson
as "eligible" and "a fun date."
MOO! Gregory (These are my opinions only).

Anonymous said...

In case anyone thinks that there is no fallout from the lacrosse hoax.

On Sunday, while at one of Duke's graduation ceremonies for departments, a graduating student and his father asked me whether I supported the G88. I told them that I was on the other side. They both said good. The student refused to take any courses taught by the G88. And the father keeps telling the development office that he won't contribute a penny until Broadhead resigns.

This is not the first time I've heard such stories.

Duke Prof

Anonymous said...

Fun with English (Part II)

In comment 13 to his latest diatribe, Robert "Group Denier" Zimmerman refers to Professor K.C. Johnson's use of the term "Group Apologist" as an epithet. Zimmerman's choice of the word "epithet" is elucidating, especially when you consider the 4 meanings ascribed to the word in the link provided.

The first definition is: "A term used to characterize a person or thing." That definition as applied to "Group Apologist" and Zimmerman works for me. So, in this instance, I would agree that the term is an epithet, and a good one at that. Everyone here knew exactly what Professor Johnson meant.

The second defintion doesn't work quite as well: "A term used as a descriptive substitute for the name or title of a person." In the Duke Lax hoax, it is impossible to substitute "Group Apologist" with the name Zimmerman because there have been other group apologists, including, for example, Charles Piot.

The third definition of epithet is awesome: "An abusive or contemptuous word or phrase." Now, "The Great Emancipator," we can all agree is a non-abusive epithet. Likewise, an "apologist for Democracy" is non-abusive (in most parts of the country). On the other hand, an "apologist for Hitler" or a "Charles Manson apologist" might be considered an epithet under that third definition. Of course, that begs the question: How evil does Zimmerman consider the Group of 88 to be?

The fourth definition of epithet is as a term of art used by scientists to further define a specific species. On its face, this definition doesn't apply to the Duke Lax hoax, but if you think about it, the same rules seem to apply. Out of the universe of PC lacrosse haters, an "apologist" becomes a descriptor that helps us to understand that this is the second wave or "Reich" of people involved. The First Reich, of course, included the original Group of 88, the Clarifiers, Nifong, etc. We need a way to distinguish between the original haters and the later haters! MOO! Gregory (These are my opinions only.).

Anonymous said...

GP:

Your comments about the judicial systems within universities is spot on. My son was entangled in a situation (right at the time that my father-in-law died - my husband was an only child). Our son, who was rather clueless - part of the problem - had as his"defense lawyer" a student who had just been appointed as an honor court attorney and, as he admitted to my husband, who drove all night to meet with my son and the attorney, that he was at a loss as to why my son was being brought up before the court. My husband asked if he, the student attorney could get some clarification (the academic dean told us that he could not discuss the matter with us) so that we could discuss with our son how to proceed. He was told that a delay would be granted - that same day our son called us and told us that his hearing was that evening - even though his advocate had been told that the hearing would not occur at that time. To make a long story short, the trial was held - even the teacher who brought the charges said at the time that she thought she had acted in haste - and our son was found guilty - he "escaped with just an F in the course - as opposed to losing the whole semester - which was a real possibility. While our son wound up graduating from the institution in the usual four years, to say that it did not have a profound effect upon him and his attitude would be an understatement. Much later I spoke to the Dean, when I could be civil. He admitted that perhaps the way that it was handled was uncalled for - as he in fact had not cheated at all. However, he said to me that it made our son "mature" so in the end, perhaps it wasn't so terrible after all." Needless to say, there will be no funds to that institution in our will.
We were informed that to bring a real lawyer to the proceedings was not allowed. Thus we did not even consult our family attorney. A HUGE mistake on our part. Perhaps if we had our hired gun show up the result would have been very different. The lesson that we took from this affair was to always be prepared to have the attorney handle anything (luckily that has not been necessary - though what happened to their sibling has definitely had an affect on our other children).
cks

Wes said...

It is ironic that a group of university professors should attaxk undergraduates for being "priveleged" while claiming that "academic freedom" exempts them from the harassment policies that apply to students and all other professors.

Doesn't academic freedom apply to students as well as professors? If "academic freedom" allows professors to harass their students, why does it not allow students to party?

Contains Post and Policy Guideline said...

We seem to recall that there was a similar a case from Valdosta State, where the student handbook was possibly considered to be a viable contract.

Naturally, the case caught on FIRE.
http://www.thefire.org/index.php/schools/408

Judge Panell, upheld the count Five in Barnes' lawsuit: "that VSU and the Board of Regents violated a binding contract with Barnes by failing to observe policies outlined in VSU's student handbook"

Perhaps the judge overseeing the Duke case will examine the academic institutional depravity of its southern neighbor and why university handbooks should be binding.

Posted by Hound No. 2
The Hounds of TASSers'ville

Anonymous said...

Judge Panell's decision in VSU case above:

http://www.thefire.org/pdfs/909c40bdcf78699066336ebd536979c0.pdf

Barnes' Original Complaint

http://www.thefire.org/pdfs/862d9d3d92f904ddabb9dae4cbf0f7ab.pdf

-sdsgo

Anonymous said...

Update to my post above:

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF'S CONSOLIDATED OPPOSITION TO DEFENDANTS MOTIONS TO DISMISS AND MOTION FOR PARTIAL SUMMARY JUDGMENT

http://www.thefire.org/pdfs/c265279248aa733c532ded922b9e243d.pdf

IV. VSU’S EXPULSION OF HAYDEN BARNES VIOLATED
PLAINTIFF S CONTRACTUAL RIGHTS

Defendants argument that it did not have a written contract with Barnes and did not beach any contractual obligations is also baseless. VSU Defs. Mem. at 21- 25. To begin with, it is well established that a college or university and its students have a contractual relationship, and the terms of the contract are generally set forth in the school s catalogs and bulletins. Raethz v. Aurora Univ., 805 N.E. 2d 696, 699 (Ill. App. 2d Dist. 2004); Corso v. Creighton Univ., 731 F.2d 529, 531 (8th Cir. 1984). In particular, a failure to provide due process to a student pursuant to the educational contract gives rise to a cause of action. E.g., Mahavongsanan v. Hall, 529 F.2d 448 (5th Cir. 1976) (graduate student filed suit against various officials of the School of Education of Georgia State University and the University s Board of Regents). This includes breaches of contract arising from a failure to adhere to established disciplinary procedures. See Boehm v. Univ. of Pa. Sch. of Veterinary Med., 573 A.2d 575, 579 (Pa. Super. Ct. 1990); Corso,731 F.2d at 533. Given the detailed procedures for disciplinary proceedings set forth in VSU s handbook, it is frivolous for the Defendants to assert that there was no meeting of the minds. VSU Defs. Mem. at 22.

Where, as here, the school s policies constitute a written contract, the Defendants implicitly acknowledge that the State of Georgia has waived sovereign immunity. O.C.G.A. § 50-21-1. See VSU Defs. Mem. at 23-24. A public university, like any state agent, is bound by its own contracts and VSU is no exception. Defendants are also wrong to contend that they enjoy immunity from suit in federal court: the waiver of immunity in O.C.G.A. §. 50-21-1 is expressly comprehensive, applying to any action ex contractual for the breach of any written contract. (emphasis added). No more is required. Maynard v. Bd. of Regents, 342 F.3d 1281, 1287 (11th Cir. 2003).

-sdsgo

Bill Anderson said...

I do not recall the disclaimer in the Duke Student Bulletin declaring: "We reserve the right to abuse students whenever we damn well feel like it, and it is your job to take this crap and shut up."

Anonymous said...

10:18 commenter....

The Mercer and Parker/Glosson cases are concerned with very different cases of contract breaches that are difficult to align with this case

The Southwell opinion goes on to state that:

"While the bulletin itself does not create a contract between Incarnate Word and Southwell, we find that a contract exists nonetheless. As the court noted in Eiland, a contractual relationship need not necessarily be logically inferred to exist between a student and a public school because education at such institutions is a benefit bestowed by the State. Eiland, 764 S.W.2d at 838. However, "the relationship between a private school and its student has by definition primarily a contractual basis." Id. If such were not the case, neither the school nor the student would have a remedy at a private institution in situations in which non-performance caused damage."

Also, the wording of the disclaimer in the Incarnate Word bulletin is much more clearly an attempt to avoid a institutional commitment than the Duke wording. The Duke disclaimer simply states that the terms of the bulletin/contract are subject to change. For Duke to use this claim successfully, they would have had to have changed the wording in the bulletin related to faculty harassment of students to allow the behavior of the G88.

Additionally, it does not take long to find examples in the faculty handbook to find statements that give the document the obvious intent of being a contractual one. One specific example is in the section on pickets and protests:

"Amendments
These regulations on pickets, protests, and demonstrations may be changed or amended by the university at any time but any such change or amendment shall be effective only after due notice or publication. These regulations supersede any regulations heretofore issued on the subject."

It is clear from this statement that the contents of the handbook are to be interpreted as regulations that are to be followed by the faculty.

Also, the Colby College case does not state that there is no contractual obligation of any kind based on the handbook. It concludes that the terms of the obligation are changeable by the university, but states this in the light of the college having met a reasonable level of compliance to the general intent of the original obligation.

A good lawyer will quickly shoot these arguments down.

No justice, no peace said...

A Dog's Inheritance. Donor intent gets mauled again"...trustees are doing what so many other foundation trustees have done, which is to throw donor intent out the window and use the money as they please. Donors who don't want to have their intentions similarly distorted have a couple of options: Be very specific about how you want your money spent after you die, or give the money away while you're still alive."

A pretty sobering development if you are giving your money to a University, especially Duke. Who among us would trust Duke leadership to honor the intent of a gift?

Gary Packwood said...

cks :: 5/11/09 :: 7:40 PM

...Re: Your son's experience with the campus judicial system.

::
Please tell your family members that the same judicial system that snared your family is also set up to snare faculty and staff who do not behave themselves and fall into line behind the campus extremists and those who embrace Groupthink.

That, I believe, is the primary reason faculty members were unable to protect your son.

And how are faculty and staff snared? Organized rumor and gossip! The oldest form of cruelty there is.

Rumor and gossip that is passed around campus and into their church and neighborhood by campus employees including clerical people. And that includes passing rumors and gossip into the office of the local DA.

And why do they get away with it? Because most of us would never believe such organized and cruel behavior takes place at a university.

IMO, the pending lawsuits against Duke and Durham is designed to bring a halt to such cruelty to include reversing any additional harm resulting for Love v. Duke.

My best regards to you, your son and other family members who have suffered through such cruelty.
::
GP

Hugues de Payens said...

Bill Anderson @ 11:21 PM:I do not recall the disclaimer in the Duke Student Bulletin declaring: "We reserve the right to abuse students whenever we damn well feel like it, and it is your job to take this crap and shut up."Bill, you forgot to add - "and don't tell your parents or get a lawyer."

But perhaps that disclaimer is 'forthcoming'; that seems to be a popular word around Duke.

Anonymous said...

From the Duke Office of Judicial Affairs Web Site:

A Statement of Principles

The Duke Community Standard expresses a standard for behavior—a set of expectations of students who claim membership in Duke’s learning community. All incoming undergraduates, upon admittance to Duke, are required to sign a pledge to adhere to these values and to conduct themselves in accordance with these values throughout their undergraduate careers. Likewise, upon completion of each academic assignment, students may be asked to reaffirm their commitment to the Duke Community Standard by signing a statement indicating that they have adhered to the Duke Community Standard in completing the assignment.

The Duke Community Standard, thus, is a statement of principles. The specific policies, or rules and regulations of the university, define the conduct for which students can be held accountable.

{snip}

Disciplinary Action

Any case involving an alleged violation of community standards, Greek organization policies, or university rules and regulations by an undergraduate student or group may be resolved through the undergraduate disciplinary system.

----

Signing such a statement would clearly be an agreement by the student to adhere to Duke’s specific policies, or rules and regulations of face disciplinary action. Thus students would have enforceable rights to the due process policies and procedures defined in those policies, or rules and regulations.

Note: The 10:18 post was from Duke's reply in the Carrington el al case.

Debrah said...

Well, this Love law...or whatever, be damned.

This response from Roy Cooper to my question leaves me a bit perplexed.

Especially this glaring impotence:
***************************

"The result of our review and investigation showed clearly that there was (((insufficient evidence))) to proceed on any of the charges against the accused."Quite frankly, I've just about had it with everything concerning this case.

Very tired of the daily tap dance.

Locomotive Breath said...

Dude, where're my rights?" was the final column in a series by Elliott Wolf detailing the systematic, and probably purposeful, erosion of student rights in the Duke judicial system.

A quick recap: Since 1999, the Office of Judicial Affairs has watered down or eliminated every major due process right afforded students facing adjudication; it has so broadened its policies and procedures that almost any student could be summarily subjected to judicial action for any reason; it has eliminated all representative student involvement in making and enforcing undergraduate policy; and lastly, it has begun colluding with local law enforcement in ways that arguably undermine students' basic constitutional rights.

These changes were detailed in my three previous columns, posted at http://www.duke.edu/~egw4/. What happened is clear. Why it happened is not.

Director of Judicial Affairs Stephen Bryan, Dean of Students Sue Wasiolek and Vice President for Student Affairs Larry Moneta offered varying justifications for these changes. I gave Bryan a chance to explain them from Judicial Affairs' perspective in this space next week, but he declined. A rough transcript of my interview with him, in which he defended the changes while frequently contradicting himself and making demonstrably false statements, is posted online.

The sole cogent rationale presented was the belief, as stated by Bryan, that a system with enumerated procedural rights and stringent procedures precluded students from "[accepting] responsibility for their behavior, and we can't get to the ultimate goal of helping students learn from their actions and help them be better citizens and think through their moral development."
Sounds a lot like a "reeducation camp".

Anonymous said...

gp:

It is so true what you state - that it works both ways. I have long felt that one of the reasons why there were so many faculty members who did not speak up in defense of the lax students and the treatment that they were being accorded by the Duke administration was the real fear that their positions at the university were endangered. Given the hiring policies at universities these days, once one has a postition, one is loathe (particularly when one is married and one's spouse is working and there are children involved) to do anything or say anything that will disrupt things.
At our monthly faculty meetings (high school) one is given dirty looks and suffers the cold shoulder for the next week if one asks any questions. I even had the president of the school call me in at the beginning of the school year to tell me that my questions while good - I always find it amusing the lengths at which some will go to praise while chastizing - that there were those [unnamed - of course] who found my queries disruptive and so therefore if I had any questions I could go to the president and talk to her privately! Since I am a rebel at heart, that only fortified my resolve to make sure that I would not be silenced - but I know that I can always get a job doing something and so I am never one to be cowed into submission. But, many people do not have the financial luxury, the stiff spine, or the whatever else is needed to stand on principle for something that is important.
One is not immune from retaliation even if one has tenure - this I know from my father-in-law's accounts of the faculty meetings at the college where he graduated from (valedictorian) and held an endowed chair - and this was thrity years ago. While I know that I would not have been able to stand by silently while a wrong was being perpetrated, I can also understand why there were those who felt that they had no choice - particularly at a school like Duke where, in the humanities, the pc forces run amok.
cks

A Duke Dad said...

Locomotive Breath references comprehensive articles on how much of a gulag Student Discipline has become on today's college campus. Very worthwhile reading.

My daughter laughed off the pc requirements of Duke's required freshman writing course. Stanley Fish's minions did not brainwash her.

My son ran into the Gestapo at Princeton. He had written about the Steam Tunnels (underground utility tunnels) on his web page. A summons to an assistant dean was delivered by campus security to his dorm. He was told that his story might induce others to explore the tunnels (which are not locked) and they 'might get hurt'. Therefore he was in violation of the catchall section of the Student Regulations for the offense of "doing anything else which might cause injury to another student", and that the penalty was 3 months suspension. He was two months from graduation.

My son looked at the assistant dean, and said, "I don't think that you have interpreted that correctly. If there is nothing else, then are we are finished here?" Two weeks later he was advised that the matter had been dropped.

He graduated magna cum laude. And while he contributes generously to various campus organizations, he steadfastly refuses to give a nickel directly to Princeton University.

Debrah said...

A brush with the wild side.

This is as close as you'll ever get to Gang of 88 party favors.

These strange people quote Timothy Tyson as if he's the deity.

They quote Al Franken as if reading the Sunday School Bible verses.

An alien destination.

Anonymous said...

It is highly likely that some of the causes of action will be dismissed by the Judge. There are a number of reasons for that, including the fact that the plaintiffs' attorneys have included all possible allegations available to them. I personally like this strategy because they are representing their clients to the fullest extent of the law.

The rape hoax was also a pretty unique situation, and that usually challenges courts and the law.

Also, there may be bad precedent out there -- like this Love case -- that the court will feel compelled to follow. Even though it appears to be obiter dicta and bad law, the federal court has to follow substantive state law in dealing with the state law claims. (I can't think of a worse adhesion-type contract). Here's the definition of an adhesion contract:

"A type of contract, a legally binding agreement between two parties to do a certain thing, in which one side has all the bargaining power and uses it to write the contract primarily to his or her advantage.

An example of an adhesion contract is a standardized contract form that offers goods or services to consumers on essentially a 'take it or leave it' basis without giving consumers realistic opportunities to negotiate terms that would benefit their interests. When this occurs, the consumer cannot obtain the desired product or service unless he or she acquiesces to the form contract."

Adhesion contracts aren't a problem until someone goes and sticks a provision like Duke did in its contract.


In the end, though, there'll be plenty of claims moving forward to the discovery stage. That's when Duke and Durham begin to seriously squirm. MOO! Gregory

Anonymous said...

"This response from Roy Cooper to my question leaves me a bit perplexed."

But thank you for eliciting it from him.



"The result of our review and investigation showed clearly that there was (((insufficient evidence))) to proceed on any of the charges against the accused."

I think he needs to restate that.

"Quite frankly, I've just about had it with everything concerning this case."

Don't give up yet; the cavalry may be just over the horizon...

"Very tired of the daily tap dance"

The other side has only one card to play, and that is a hope that we get too weary to continue; but the last dancers on the floor win the marathon.

Anonymous said...

KC -- The refusal to follow process and the lack of legal counsel in these matters is both unfair and dangerous. A colleague riend of mine was a student at a prominent law school (he has now been practicing for several years). A legal writing professor allowed students to proofread each other's papers before turning it in. The professor noticed that a student's paper had a similarity in the first two paragraphs (out of 25 pages) to one of the papers he proofread for a fellow student. The students said what happened, denied any plagiarism, but could not rule out the possibility that they were potentially influenced during the proofreading process. Recognizing that this could happen inadvertently due to the proofreading policy, the professor asked them to rewrite their openings, and he reviewed them with a fresh eye. End of story? Not quite.

Some fellow students got wind of it and brought plagiarism charges before the Judicial Board (comprised of other law students). All were denied legal counsel , nor were they permitted to review the evidence against them (which turned out only to be the original papers themselves). The professor showed up to support his students and took responsibility for allowing them to proofread each other too early in the process. The original judge dismissed the charges on the grounds that the statute of limitations on bringing a complaint had expired.

Completely undeterred, the prosecuting student brought one charge after another over a 6 month period, never allowing legal counsel, all of which were dismissed. The law school did nothing. Then, in violation of privacy rules, the prosecutor published a letter to the school paper announcing the charges (but never using names), and branding them as cheaters who should have been expelled but for a technicality.

As a lawyer, I could see why they would not want counsel to be present: every procedural and substantive rule was honored ONLY IF it supported the charges. If it did not, it was ignored or ridiculed.

You know why it stopped? When I showed up at the Dean's office with a choice for him to make: (1) force the Juducial Board to drop the charges or (2) we would reluctantly see him in court. The Dean was a good man and finally put a stop to the nonsense but not until 6 months of terrible stress had taken its toll. The worst part of this story? THe prosecutor is now a CIty COuncil member on her hometown. God help those poor citizens!

THese student judicial boards are kangaroo courts used of nefarious purposes, and the reason they do not want scrutiny or fairness is because the school could easily be made to look stupid or insidious. Like Duke, their main concern is their public image, and the interests and welfare of the student is an insignificant consideration. Happens all the time.

Haunches

Anonymous said...

"These student judicial boards are kangaroo courts used of (sic) nefarious purposes..."

Haunches - you are right on the money.

cks

Gary Packwood said...

Haunches :: 5/12/09 :: 8:08 PM...said

...These student judicial boards are kangaroo courts used of nefarious purposes, and the reason they do not want scrutiny or fairness is because the school could easily be made to look stupid or insidious. Like Duke, their main concern is their public image, and the interests and welfare of the student is an insignificant consideration. Happens all the time.
::
It may happen all the time but I have grown weary over the last 10 years spending time with young and new hires fresh out of the university explaining due process, probable cause and why their Kangaroo Court mentality is not going to cut it in the real world.

There have been many times I have wondered if many corporate organizational behavior problems started with those Kangaroo Courts for undergraduates.

They do serve a purpose of intentionally confusing young people about due process and probable cause which may be the idea in the first place.

If not, why do universities fund such systems of 'justice' that are use for nefarious purposes?
::
GP

Bill Anderson said...

This thread has been very good in educating us to the reality of modern "law" and its results. One of the reasons I became involved in the Duke case was my own research and writing into criminal law in general and federal criminal law in particular.

Americans inherited the legal system from England, which was strongly influenced by William Blackstone. I doubt Blackstone today would recognize our system, except to tell us that we had descended into the Dark Ages.

One of the problems is that the legal profession today -- and especially the tort and prosecutorial side -- has become full of very clever people who see law as something to be manipulated. Nifong was an excellent example in the way that he constantly tried to change the timelines, and weasel in and out of trouble. That his antics were supported by our TV prosecutor Nancy Grace and Irving Joyner tell me that his approach must have been quite popular.

There always have been corrupt judges and prosecutors, and that will not change. What has changed, however, is the very focus of the law itself. Blackstone wrote that law should be "a shield for the innocent," and it was the duty for government to protect its citizens both from harm from other individuals AND from rapacious government agents.

Unfortunately, the fox guarded the henhouse, and we now see that government is a main force of injustice. Today, prosecutors no longer look at doing justice, but simply are representing their "client," the state, and the state says that all of us are guilty of something. That was the mentality that Nifong employed, and we see the sorry results.

Of course, since we are descending into the Dark Ages when it comes to discarding our legal heritage, are we surprised that law schools in particular and universities in general are engaged in bringing back the Star Chambers and other such things that were designed not to determine the truth, but rather to produce predetermined results? That was the entire exercise we saw at Duke, in which we had verdict first and "investigation" after that.

As for Love, it was little more than an ex cathedra pronouncement from a judge who apparently believed that he did not need legal precedent to make a declaration. I find it interesting to see that Duke University, which openly and enthusiastically aided a corrupt prosecutor in creating both "crimes" and "perpetrators" out of thin air is latching onto Love. Somehow, that seems quite appropriate to me.

Anonymous said...

A couple of thoughts. I was on the undergraduate judicial board at Duke. Why, because prior to interviewing and joining the board, and taking it seriously, I was the victim of exactly the type of crap that is talked about. As a freshman I engaged in the immature behavior of cursing out a service provider at the University (I am deliberately being vague). I did not use any slurs or threats, just f this and m f that. Not cool, of course, even though I had been wrongly billed for stuff and was correct. I subsequently received a charge of "obscenity", which at that time was prohibited, along with all the potential penalties, upcoming hearing and so forth including suspension and expulsion. Although I was not proud of my outburst, I could not believe that using the f word was the basis to suspend me from the university.

so, despite the pit in my stomach, I actually researched the "obscenity" provision and how it came to be in the student handbook and found out it had nothing to do with speech, but instead was addressed to streaking and other obscene conduct. When i nervously brought this to the dean's attention, and indicated i was prepared to fight, it was dropped.

Later, I interviewed and joined the board to prevent further abuses and now am a lawyer. so, thanks, Duke!!

streeetwise

Anonymous said...

One other point--it can't be the case that Duke and the students don't have a contract. You pay money, you get services, you have a contract. If the bulletin is not the contract, there still is a contract.

Anonymous said...

Only two things count in the Ivy League: Money and public image...and they'll spend whatever they need to to protect their public persona.

While working at Princeton a few years back, a colleague was dismissed for "upsetting" someone.
Said person sued for unlawful dismissal (or something like it) and won a sizeable settlement.

What's interesting is that the unfairly dismissed hired a criminal defense attorney who admitted to knowing nothing about employment law, rather he said "I don't need to because this will never go to court. Princeton will settle. The last thing Princeton wants is publicity that isn't pro-Princeton, beside, I'm better with a jury than their $1000 hour lawyers who write learned articles, and they know it."

Settled for a couple years' pay.

Debrah said...

Such a "Love-ly" relationship:

******************

Duke-Durham campaign raises $848K

news@heraldsun.com

May 13, 2009

DURHAM -- This year's Duke-Durham campaign raised $848,434 through in-kind donations, as well as $190,308 in cash donations, to benefit the neighborhoods and public schools closest to Duke University's campus.

Among those benefiting from this year's campaign was Forest View Elementary School, where Mixon Construction oversaw the building of an amphitheatre for students to use.

Another beneficiary was New Horizons, a program that provides academic skills to at-risk youth, whose warehouse at 121 Hunt St. was renovated largely through in-kind contributions of labor and materials.

The annual Duke-Durham Campaign benefits the schools and organizations that are part of the Duke-Durham Neighborhood Partnership. This year, more than three dozen community volunteers from Durham's businesses and nonprofit community solicited donations from local companies and individuals.

Duke's Office of Durham and Regional Affairs, along with its Office of Community Affairs, coordinate the Neighborhood Partnership. Through the partnership, the university and the 12 neighborhoods adjacent to campus collaborate on goals identified by the residents, including K-12 educational achievement and enrichment, affordable housing, neighborhood revitalization, health care accessibility, and the engagement of Duke students and staff in community service.

Debrah said...

More "Love-ly" relationships:

**********************


Duke bids farewell to first Durham-native chairman

The Herald-Sun
May 13, 2009

DURHAM -- Board Chairman Robert Steel and some other trustees ended their term of service Sunday with the close of the Duke University Board of Trustees meeting.

The board elected state Rep. Dan Blue to replace Steel on May 8. Blue became the first African American elected to lead the board.

Steel, Christine Durham, Cookie Anspach Kohn, James L. Vincent and Lewis T. (Rusty) Williams have helped guide the university through strategic plans, academic expansion and recently, a tight fiscal climate.

Steel, former president and CEO of Wachovia Corp. was elected to the Duke Board of Trustees in 1996. He became board chairman in 2005, when he became the first Durham native to chairman the board.

The trustees who retired along with Steel include:

- Justice Christine Durham has been a member of the Utah Supreme Court since 1982 after serving as a trial judge for four years. She became Chief Justice in 2002.

- Carol "Cookie" Louise Anspach Kohn, co-director of Valerie Wilson Travel, Inc. -- Highland Park, a corporate travel consulting firm, was elected to the Duke University Board of Trustees in 1997.

- James L. Vincent is retired chairman and CEO of Biogen Inc., one of the leading biopharmaceutical companies in the world.

- Dr. Lewis T. (Rusty) Williams is the founder and executive chairman of Five Prime Therapeutics, Inc., a biotech company that develops protein and antibody therapeutics. Serving his second term on the Duke University Board of Trustees, he is a member of the Medical Center Academic Affairs Committee and the Institutional Advancement Committee.

Two young trustees, Benjamin Kennedy and Brandon Jonathan Goodwin, also left the board.

Debrah said...

H-S editorial:
*******************

Duke trustee chair a model

May 13, 2009

Dan Blue, the new chair of the Duke University Board of Trustees, is one of those remarkable North Carolinians who not only has witnessed fundamental changes in society, but also has been deeply involved in driving the changes.

As an African-American, his many accomplishments have provided a model for others to emulate.

A description in a Duke biography of Blue said that he "grew up during segregation and Sputnik on a farm in rural Robeson County."

His father worked at a textile mill to make ends meet for the family of seven. From such modest beginnings, Blue set his sights on the wider world.

He earned a math degree from N.C. Central University in Durham. Then, inspired by Robert F. Kennedy, he decided to work for civil rights.

Blue was accepted at Duke law school, which provided financial aid. One of only four black students in the law school, he received his degree in 1973.

In 1981, he was elected to the state House of Representatives, and became Speaker of the House in 1990, the first African-American to hold that position in the South. He lost the job in 1995 when Republicans temporarily took control of the state House. That year, he was also named to a seat on Duke's board of trustees.

Last week, Blue's career took off in two different directions. In addition to the Duke trustee position, he was also chosen by the Wake County Democratic party to fill the remaining term of the late state Sen. Vernon Malone.

Beyond the racial milestone, there is another significant message in Blue's being named at Duke.

"He is of and from North Carolina and is committed to Duke's success and leadership role in the community and the region," said Michael Schoenfeld, vice president for public affairs and government relations.

Blue takes the helm during challenging economic times, with the university trying to trim $125 million from its annual budget, reduce staffing through early retirements and deal with losses in the university's endowment.

Blue was a first-rate choice, both for the state Senate and the Duke trustees. His leadership will be felt positively in both arenas.

****************


As usual, they feel compelled to deify someone because of the race of the individual.

When will we ever get beyond this mindset?

When all the early baby boomers and those who came before them are dead and gone?

We are supposed to be "color-blind", yet race is all that is ever discussed....and yes, condescendingly deified.

Dan Blue should be successful at something. He and others at universities at that time until the present have been given every ounce of largesse imaginable.....and after that, a prop for everything that is negative and can go wrong in life.

The question is, really......"Why are there not a multitude of Dan Blues walking around?"

The only way a black person cannot succeed in this country under the recent past and the current environment is if he or she decides not to be.

This fawning and exaggeration of circumstances must all end.

Gary Packwood said...

To streeetwise :: 5/13/09 :: 9:32 AM

Did you type that response on your iPhone while in heavy traffic or are you someone other than a Duke Law School graduate?

What 'stuff' had you been billed for?

Why does obscene speech not have anything to do with speech?

Sheesh!
::
GP

Anonymous said...

Obviously Packwood is not good at "readin'"

The obscenity provision did not mention speech, just obscenity, so it had nothing to do with speech. I was charged with "obscenity" for speech.

I also did not say I graduated from Duke law school. I went to another reputable law school.

So, Packwood misread at least two items.

and, just to make it clear, since it seems to matter to "Packwood", I had been billed for a phone line i was not using. The service provide was Duke Telcom.

Best of luck to you "Packwood"

streeeetwise

Anonymous said...

KC makes an important assertion – that Love v. Duke University wrongly decided” After giving the matter some serious thought, I’m not sure that I agree. Judge Erwin probably got it right. Much of the bulletin would not be enforceable, nor would the courts want to involve themselves in such matters. However, looking back at our 5/11/09 10:18 post, the statement, “While the relationship between a university and its students may be contractual in nature, Duke’s student bulletin … did not contain the essential elements of a valid contract …” takes on new significance when we make note of the fact that in virtually all of the cited cases the judge did not declare the entire document a contact. He simply ruled that pertinent provisions (or policies) contained in the bulletin or handbook were enforceable as part of a broader (implied) contract between the parties. Furthermore, those enforceable provisions generally made specific promises or specified in significant detail enforceable processes and procedures.

For instance, in the VSU case mentioned earlier, the plaintiff successfully argued that the school’s failure to follow the detailed disciplinary procedures spelled out in the school handbook constituted a breech of the general contractual relationship between universities and students. In the Duke case, the plaintiffs need only convince Judge Beaty that Duke’s failure to follow the detailed procedures in its “Harassment Policy and Procedures” document constituted a similar breech. While the students could not dictate the eventual outcome of the investigation, they were entitled to some form of resolution process. The policy document defines harassment as, “verbal or physical conduct – which may or may not be sexual in nature – that, because of its severity and/or persistence, interferes significantly with an individual’s work or education, or adversely affects an individual’s living conditions.” A footnote expressly states that the policy applies to more than the traditional protected classes of people. As you can see, this type of harassment is a special form of the state law tort, “intentional infliction of emotional distress.” Therefore, if Duke failed to follow its policy, as it applied to the complainants, and that failure caused or compounded their suffering, then Duke should be held in breech the contract.

Duke’s assertion that the Carrington plaintiffs were not disciplined is immaterial. The policy specifically required the Carrington plaintiffs make an allegation or file a complaint within one year and then cooperate with either an informal and/or formal resolution process or forfeit their right to seek relief under the policy. Furthermore, while Duke was free to utilize any number of informal complaint resolution methods before instituting a formal harassment hearing process, they were required to complete the process within 45 days and have any resolution agreed to, and signed by, both parties. If a formal resolution process proved necessary, the policy imposed certain requirements on the complainant, as well as granting him the right to be heard. In this case, Duke did not employ any informal or formal harassment resolution techniques, they didn’t conduct an investigation, nor did they document a resolution agreement between the parties.

Ironically, the policy specifically states that “this Policy shall be evaluated from the perspective of a reasonable person similarly situated to the complainant and in the consideration of the context of the behavior.” Does the word “juror” come to mind?

Duke harassment policy: http://www.duke.edu/web/equity/harassment_policy-Jan2005.pdf

-sdsgo

Anonymous said...

I saw a movie years ago detailing the true story of a boy in an English school who was falsely accused of stealing and thrown out of school. His father bankrupted himself defending his son's rights but I believe this was a landmark case that resulted in children in schools being granted the right to a real trial with legal representation. Do students in US Institutions have this right?

Stu Daddy said...

Reminder for college lacrosse fans anywhere within reach of Annapolis, Maryland:

Sunday afternoon, May 17 at the Navy-Marine Corps Memorial Stadium, the quarterfinals of the NCAA Division I tournament:

Johns Hopkins vs. Virginia

North Carolina vs. Duke

Wonderland bloggers, do yourselves a favor by shutting down your computers, and take a spring road trip to Annapolis for a field lacrosse extravaganza!

Look for Duke and Virginia to advance to the Final Four.

Debrah said...

TO GP--

It's perfectly acceptable for the (9:32 AM) to use "stuff".

He's streetwise.

:>)

Anonymous said...

Nobody is better positioned than Mr. Blue, both at Duke and in Raleigh, to help make sure Duke students can never again be railroaded to injustice.

Hence, I'm sure he will be urging grand jury reform in the legislature; enactment of a speedy trial law; revision of the rape laws to preclude release of the names of accused (but not convicted) persons; an end to a system in which the DA picks the judge to hear a case; etc.

And I'm sure he will be joined by all civil libertarians, the ACLU, the NAACP, and most the Duke law faculty in calling for such reforms.

And I'm also unable to find a "sarcasm" smiley for this blog...

Debrah said...

Some of you apologists for the harmony boy---and there are some who come here to do just that---please read his responses to the most recent comments at his place.

Where a feeble attempt to put even a dent in Wonderland and the work of its intellectually invincible author has always come up short.

Did I say short?

Rather I should say, empty.

In many respects I have resisted sparring with those who live outside the Triangle and who have often assisted people like Reharmonizer Man in his efforts to dress up what happened in Durham in 2006, and the very same attitude that, essentially, still exists today.

IIRC, the music professor has lived in Durham a little over a decade and his primary relationships are with Duke University.

I do not fault anyone in the academy---even visiting professors---for not having the full panoramic view of any university city or town.

Your work is on campus.

Your friends and most of what you know will be campus-related.

KC is the only one from the academy who endlessly researched this case, that town, and the Duke culture.

KC is the only one who made numerous trips from New York down to Durham to see and witness first-hand what occurred.

It continues to annoy when I see people from Duke and residents from Durham tendentiously attempting to put perfume on this sordid saga.

They know next to nothing.

At some subsequent time, I should really give an account of Durham's history---in black and white.

There is so much that the invertebrates of Durham who sat by silently while three people were being railroaded with the use of open racism in 2006 need to admit.

Debrah said...

The commenter "Michael G" on this forum still tries to imply that the "roughness" between the races is the cause of the Lacrosse Hoax.

And, of course, it would be the "majority culture" most responsible.

Hideous.

Purposeful ignorance.

William L. Anderson said...

Yes, I am sure that Mr. Blue will be Johnny-on-the-spot to rectify the damage that Mr. Steel has managed to create during his time as the Duke BOT chair.

Debrah said...

Is this the same John Love?

Anyway, I hate the name "Love".

Debrah said...

Roy Cooper will not run.

Anonymous said...

My first case was representing an acquaintance charged with cheating on a law school exam. I was starting my third year in law school, and there've been few cases in 18 years that have cost me more sleep.

You can be sued for $200.00 or less in small claims court, and you're entitled to representation by a qualified attorney if you want to pay for it. But, if a future income stream potentially amounting to the tens of millions of dollars is endangered in law school -- or other graduate and undergraduate schools -- you don't have that right. Seems counter-intuitive to me.

The guy's name now precedes "and Associates" as he operates his own intellectual rights firm in the Dallas area. Happily, I only lost sleep preparing for, and defending, the case. MOO! Gregory

Debrah said...

And this is quite shocking.

A glimpse into how Mangum was able to receive a degree so easily.

qa said...

Debrah re your 5/17/09 12:18 AM

Great information - this corroborates our scepticism.

Anonymous said...

You can bet that if the administration wants all students to have a 3.0 by the end of their freshman year that there is a lot of coercion to make sure that professors are handing out high grades to students whether those grades are deserved or not.
cks

Debrah said...

It's interesting to read some of the letters sent to local papers early in the case which are archived at FODU.

The one from Karla Holloway taking Coach K to task is particularly humorous and bizarre.

Anonymous said...

Debrah,
Your link to the NCCU article actually shows what a strong effort it took for her to graduate. She worked for that degree, and this article only shows how hard it is for some students to get one.

Debrah said...

TO (5:57 PM)--

It shows nothing of the sort.

You want to know what it really shows?

That in the 21st century and before, affirmative action, a misguided quota system, a public school system in this country where teachers are afraid to require rigorous work from every student for fear of reprisals, and that even middle and upper-middle class black students are not required to perform adequately so that even a third or fourth-tier school like NCCU is "too hard".

I really am tired of the soft little lies that we must live by......and then the rest of society is supposed to take the blame for lack of achievement from some students because "everyone is out to get them".....

.....or whatever lingo is being used on any given day.

From day one---K-12 and beyond---evaluations must begin being made on true merit.

Poor white students as well as poor students from any other group should be given consideration for their financial need.

Socio-economic, not race or gender.

Here's what has happened at schools like NCCU.

Requirements in the public schools have been lowered to such an extent that students aren't fully prepared to perform on university level once they have their high school degree.

I had a good friend who was a professor at UNC-CH law school. He died of cancer about a decade ago.

He was about 25 years my senior, a Harvard Law School alumnus, and one of the most liberal people I've ever known.

But he took his work very seriously. Nothing was more important to him.

There was great friction between him and some other members of the law school faculty about the compromises they continued to make regarding admissions and curricula at the expense of scholarship.

He was against the rotten system of using race for that simple reason.

He even tutored many black students at his home on weekends to bring them up to speed.

He explained that the minority students that were accepted at places like Harvard should really be at schools like UNC-CH, and the minority students accepted at UNC-CH should really be attending one less rigorous.

Everything is bumped up a notch or two because of the race agenda and the students have a tough time performing as a result.

This was really something for him to admit; however, KC reminds me so much of him because he wouldn't sacrifice scholarship for a political agenda.

He also said that this system made it difficult for law school graduates when they aren't hired at the most prestigious firms because they are quite simply not well-educated in the law. They spent most of their time in law school learning to write!

I really don't know what else society is supposed to do for students at places like NCCU.....

.......except just hand them a university diploma on their first day as freshmen and say...."OK, here it is. You don't have to do a thing for the next four years."

The most shocking thing from that article, IMO, was that students take 6 years to get a B.A.

It's a sick world.

Anonymous said...

A lot of those students take 6 years to graduate because they are working 40 hours a week and paying their own way through school. I just don't see what you are talking about in this article you linked to. It may be your opinion of NCCU and CGM is so low you see anything having to do with them as a negative. Based on the numbers this article gives, I would have to say Crystal did a good job graduating and with her grades.
NCCU is a good school and working harder to get better, in my opinion. Students from NCCU should be encouraged to see one of their own, Dan Blue, elected to the chair of the Duke BOT along with his many political accomplishments. Hard work and study paid off in his case as in the case of many NCCU grads.

Debrah said...

"It may be your opinion of..........CGM is so low you see anything having to do with (her) as a negative."*********************

You're probably right.

Anonymous said...

NCCU is a "good school"!!!!!

By what measure? I am sure that some people graduating from NCCU are smart and hard working-good for them. But NCCU is not a good school.

Anonymous said...

Love is cited as precedent in the recent ruling in the Giuliani v. Duke case.