After the failure of the university’s efforts to have the civil rights lawsuit against it dismissed, Duke has filed its lengthy factual response to the unindicted lacrosse players’ complaint. Its general approach: deny anything for which there’s no open record; blame others (Nifong, the Durham Police) by inference regarding areas in which the facts can’t be denied.
Two general points: first, this response wasn’t due until June 14. I’m sure the fact that Pres. Brodhead is currently in China, and therefore unreachable by the local media, had nothing to do with Duke’s decision to file its response a bit early.
Second, it’s important to remember on what issue—thanks to Judge Beaty’s ruling—Duke doesn’t have to deny or shift blame: the university’s failure to enforce its own written policies regarding treatment of the lacrosse players. On this question, the university can breathe a sigh of relief that it’s not located 247 miles to the southwest—since, if it were so located, it would fall within the jurisdiction of the 11th Circuit. And, as this recent filing from FIRE points out, in the 11th Circuit, universities are legally obligated to enforce their own student bulletins and faculty handbooks, rather than treat them as mere scraps of paper.
As if to reiterate the point, Duke’s filing notes (in an oddly-worded passage), “Duke University denies that the language from the Faculty Handbook . . . sets forth Duke University’s policy regarding policy.”
When, if ever, will the university communicate this information to prospective parents?
A summary of the major elements from the University’s 252-page filing:
The Group of 88 Statement
“Duke University denies that the full-page, paid announcement that ran in The Chronicle, and that identified 88 individuals and contained unattributed quotations, made anything ‘clear’ about what its authors or sponsors believed about the evidence of rape. Duke University admits that the cost of running the announcement was paid, in part, with funds from departments within Duke University.”
For the first time, Duke has officially admitted that University funds paid for the Group of 88’s ad. The use of “in part” is intriguing: is Duke suggesting that private individuals partly financed the ad? If so, who were these people?
In any event, consider the significance of this admission. Not all the lacrosse players were on full scholarships. So Duke has now affirmed that some of the players’ own tuition moneys were used to produce an ad that publicly condemned them—an ad placed in violation of Duke rules, moreover. When considering where to send your son to college, what parent could ever even conceive of such behavior from an institution that gladly accepted your tuition check?
Tellingly, the university can’t bring itself to accurately describe the ad. It’s true that the ad did contain “unattributed quotations” that allegedly came from Duke students. But the statement also contained thirteen sentences in the voices of the signatories, not in the form of “unattributed quotations,” as well as an additional sentence falsely claiming that five academic departments at Duke endorsed the ad. What’s the purpose of describing the statement in a misleading fashion? To elide over the fact that those 13 sentences included a clear, unequivocal statement that something “happened”—not “allegedly happened”—to false accuser Crystal Mangum?
In any event, this mis-description continues Duke’s legal strategy of misrepresenting the lacrosse players’ claims to such a wild extent that it would have to undermine the university’s credibility with Judge Beaty.
Former SANE-nurse-in-training Tara Levicy
The university’s response concedes that Levicy had not, in fact, received her “certificate of completion” from her SANE training course until after she conducted her examination of Crystal Mangum—and that, therefore, she was a SANE-in-training when the botched exam occurred. Indeed, on p. 34, the University, for the first time, states it explicitly: “Tara Levicy was a registered nurse who was working as a staff nurse and as a SANE in training in the Emergency Department at Duke University Hospital.” [emphasis added] So why did the hospital allow her, without supervision from a credentialed SANE, to examine Mangum? Imagine how this case might have differed if the hospital had followed established procedures on this matter.
Moreover, the Duke response concedes how woefully inexperienced Levicy actually was at the time she examined Mangum: “DUHS and Nurse Levicy admit that Nurse Levicy began working in the Emergency Department at Duke University Hospital in February 2005. DUHS and Nurse Levicy further admit that this job was Nurse Levicy’s first nursing job following receipt of her nursing degree in December 2004. DUHS and Nurse Levicy also admit that Nurse Levicy began her SANE training in August 2005, and that her certificate of completion was effective on March 2, 2006, although she did not receive the certificate until the late afternoon of March 14, 2006 [which, of course, was after she examined Mangum].” Again, imagine how this case might have differed if Duke Hospital had a competent, professional SANE nurse instead of an inexperienced, ultra-feminist SANE nurse-in-training examine Mangum.
As to other allegations, the university affirms, over and over and over again, that “Nurse Levicy likewise denies that she made any statements to members of the Durham Police Department or to investigators working with then District Attorney Nifong that were inconsistent with the examination of Ms. Mangum.”
Based on the record of the case, Levicy’s stories undoubtedly shifted, always in ways convenient to Nifong and contrary to the written record of her exam. This passage would seem to represent an effort by Duke to shift the blame, setting up a claim that Levicy told the truth to Sgt. Mark Gottlieb and ex-Nifong investigator Linwood Wilson, but that they, in turn, lied (blunt force trauma, Mangum wasn’t sure about whether her attackers used condoms) about what she told them. Given that the Gottlieb/Wilson version of what Levicy told them was completely consistent with what Levicy told the defense attorneys in their interview with her, this strikes me as a difficult argument to make.
One other point: the university’s filing confirms for the first time the long-rumored extent of Levicy’s cooperation with the investigation. “Nurse Levicy admits that she met with or conversed with members of the Durham Police Department on a limited number of occasions and responded to questions from investigators . . . Nurse Levicy further admits that she met with former District Attorney Nifong in June 2006 and responded to his questions about the sexual assault examination.” The university’s filing contains no details about what transpired at this mysterious meeting, during which Nifong (it seems) took no notes. Nor does the university’s filing reveal how many the “limited number of occasions” were in which Levicy chatted with DPD officers—chats that do not appear to have been recorded in the official case discovery file.
Beyond these blanket, and almost comical, denials, Duke appears to be using an element of Beaty’s ruling (that Levicy owed a duty only to Mangum, and not to the public) to shield Levicy’s examination from any meaningful inquiry: “It is a violation of the Health Insurance Portability and Accountability Act for the Duke SANE Defendants to disclose any of Ms. Mangum’s protected health information. Absent a court order authorizing such disclosure, the Duke SANE Defendants are unable to respond. Therefore, the allegations seeking information relating to Ms. Mangum’s protected health information are denied.”
Under this conception of the law, a SANE nurse could lie at will about an exam, and there would be no way to challenge her in a civil suit.
Levicy was Right, and the AG’s Investigation Was Wrong
Perhaps the most bracing element of Duke’s filing comes in repeated claims that the Attorney General’s investigation—upon which the declaration of innocence was based—improperly characterized the medical evidence, and that, as a result, objective medical evidence did exist that Mangum was raped. These assertions are nothing short of astonishing.
The Attorney General’s report stated, “No medical evidence confirmed [Mangum’s] stories. The SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence.” [emphasis added] But Duke now claims that “Nurse Levicy specifically admits that she remains both objective and neutral during such examinations.” [emphasis added]
“Nurse Levicy further admits that she told Investigator Himan that there were signs during the sexual assault examination that were consistent with sexual assault. Nurse Levicy specifically denies that she made any statements to members of the Durham Police Department that were inconsistent with the examination of Ms. Mangum.” Once again, the AG’s report stated, “The SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence.” Duke claims that Levicy was right, and the AG was wrong.
The FERPA Claim
The filing represents the first time that Duke offered any explanation as to the area of the lawsuit where it seems extremely vulnerable—that it provided keycard information, in violation of FERPA, to the DPD; and then it stood idly by as Nifong tried and failed to get (retroactive) court approval for that information.
“Duke University specifically denies that DukeCard reports were ‘illegally’ supplied by Duke University.” Why? Because “Duke University, Deputy Counsel Hendricks and former Director Drummond specifically deny that they had any knowledge that DukeCard information had been provided to members of the Durham Police Department.” As I understand FERPA law, willful ignorance doesn’t count as a defense.
Who at Duke improperly supplied the information? “Duke University admits that on or about March 31, Gary Smith provided DukeCard information to Sergeant Gottlieb for some of the members of the 2005-2006 Duke University men’s lacrosse team for the period of time from March 13, 2006 until March 14, 2006.” And “Duke University admits that it did not notify the lacrosse players, their families, or their lawyers of the disclosure.” Nor did Duke notify the Court, as it considered (and rejected) Nifong’s subpoena for the information. Why not? The University’s filing doesn’t say.
Odd Denials & Legal Niceties
“The Duke University Defendants and the Duke SANE Defendants further deny that President Brodhead or anyone else at Duke University suppressed or concealed any exculpatory information.”
The emphasis here would be on the word “any.” Of course Duke “concealed” some exculpatory information—to take an obvious example: the knowledge that, as Nifong and the DPD were waging their p.r. campaign accusing Duke students of having constructed a “wall of silence,” Duke knew that the captains (including one of the Carrington plaintiffs, Dan Flannery) had voluntarily given statements and DNA evidence to Durham. Yet the university remained silent. It might very well be that Duke considers this concealment legally irrelevant (and the university might be right). But to deny that the university “concealed any exculpatory information” is absurd.
“President Brodhead denies that he took no steps to enforce Duke’s anti-harassment policy and further denies that he condoned harassment of the players.”
The key words in this sentence are “no” and “condoned.” Duke’s statements could be legally true if (hypothetically) Brodhead placed an e-mail in his draft file, but never sent it, urging faculty and students not to harass the players—he would have taken a “step” to enforce the anti-harassment policy, but the “step” would have been a useless one. It’s pretty obvious that Brodhead didn’t actually do anything to stop either the in-class or on-campus harassment of the players, and it’s quite striking that even Duke doesn’t claim that its president acted in any meaningful way to stop the harassment of dozens of the university’s own students.
The remainder of the passage depends on how duke defines “condoned.” Take an obvious example—the Group of 88’s statement, through which dozens of Duke faculty members, basing their opinion solely on what Mike Nifong provided them, publicly affirmed in what they considered the highest-profile venue on campus that something “happened” to Crystal Mangum. That statement falsely claimed, in violation of Duke policy, that five academic departments had officially endorsed it. Yet Brodhead never compelled a retraction, nor did he order the African-American Studies Department to take the statement off its official duke.edu webpage. Duke appears to be claiming that Brodhead’s in the clear as long as he didn’t himself sign the statement, thereby “condoning” its contents, and that his administration’s failure to do its job didn’t constitute “condoning.”
“President Brodhead denies that any statements from him were designed to ‘impute guilt’ to the players or to ‘inflame’ public opinion against them.”
The key word in this sentence is “designed.” Brodhead’s April 5, 2006 statement—which didn’t even contain a token mention of the presumption of innocence—clearly “imputed guilt,” since it urged people to withhold judgment only until arrests occurred. The presumption, therefore, was that the arrested parties were guilty.
As to the claim that the statement wasn’t designed to “inflame” public opinion against the players: is the University really going to claim that its president, an English professor, didn’t understand how this statement would play in public opinion?
Obvious, but Damning, Admissions
“President Richard Brodhead admits that he played an active role in Duke University’s response to the rape allegations against members of the lacrosse team, and that he consulted with former Chairman Steel and members of the Duke University Board of Trustees in connection with the controversy. “
This admission was all but mandated by former BOT chairman Bob Steel’s ill-considered April 2007 e-mail, which affirmed, “Throughout the past year President Richard Brodhead consulted regularly with the trustees and has had our continuing support. He made considered and thoughtful decisions in a volatile and uncertain situation. Each step of the way, the board agreed with the principles that he established and the actions he took. As we look back and with the benefit of what we now know there is no question that there are some things that might have been done differently. However, anyone critical of President Brodhead should be similarly critical of the entire board.”
“Duke University admits that officers of the Durham Police Department informed officers of the Duke University Police Department that Ms. Roberts made a 911 call.”
This statement is damning for what it doesn’t say. One of Mike Nifong’s most dastardly deeds came in his late March 2006 (false) assertion that the DPD didn’t know Roberts made the 911 call. That left the impression that the lacrosse players were virulent racists, since two innocent black women, walking past the house, had been subjected to racial slurs. By the time the truth came out about Roberts, the damage was done. For the first time, this filing states that Duke knew that Roberts made the call. Tellingly, the filing does not reveal when Duke knew about Roberts. Did the university know before March 29, 2006, when Nifong made his false statement to the press? And if so, why did the knowledge that the DA was lying both about the players not cooperating with the police investigation and about the source of the 911 call not influence how the university approached the issue?
“Dean Wasiolek further admits that she had reason to believe that the accuser was not credible.”
No neutral party observing the Duke administration’s actions between March 25, 2006 and April 18, 2006 would ever believe that a key figure in formulating the administration’s response “had reason to believe that the accuser was not credible.”
“Duke University admits that the quote [‘We had to stop those pictures. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done’] attributed to former Chairman Steel appeared in the New Yorker. Duke University denies that the quote accurately conveys former Chairman Steel’s statement.“
Why, then, didn’t Steel, at the time, write a letter to the editor, or issue a press release to make this point? Or could it be that former BOT chairman Steel only came to the conclusion that he was misquoted after Nifong’s case imploded? It strains credulity to believe that the New Yorker misquoted Steel and he did nothing to correct the record.
“Dean Wasiolek admits that she gave the name of Wes Covington to then Senior Associate Director of Athletics Kennedy as a name of a local attorney that players could contact. Dean Wasiolek further admits that she was complimentary of Mr. Covington and referred to his experience as a former Assistant District Attorney.”
Covington, of course, was the “fixer” whose intent appeared to be to end the case quickly and quietly, by giving Gottlieb access to any and all the players. The university’s filing repeatedly denies that any connection existed between Covington (who has since died) and Duke.
“Duke University, President Brodhead, and Deputy Counsel Hendricks admit that on March 28, 2006, the four lacrosse co-captains met with President Brodhead. Duke University, President Brodhead, and Deputy Counsel Hendricks further admit that other representatives of Duke University, including Deputy Counsel Hendricks, were present, as well as the co-captains’ own attorney. Duke University still further admits that some representatives of Duke University were interviewed by members of the Durham Police Department as part of the Durham Police Department’s investigation into the rape allegations, and they answered questions posed by the members of the Durham Police Department.”
This is Duke’s description of the meeting at which Brodhead blandly—and, obviously, falsely—assured the captains that anything they told him would stay within the walls of the room.
“Nurse Levicy, the Duke University Defendants, and the remaining Duke SANE Defendants further deny that they had any authority or obligation to rebut or correct any assertions in any NTO application regardless of the truth of the allegations.” [emphasis added]
When There’s No Written Record (Yet), Duke Denies
“Dean Wasiolek denies that she advised the members of the team that they should not consult with an attorney. Dean Wasiolek further denies that she advised the members of the team that they should not tell their parents about the rape allegations.”
“Duke University and Executive Vice President Trask deny that they ever claimed the existence of a ‘student-administrator privilege’ and further deny that they misled the plaintiffs into providing statements that were contrary to their attorney’s advice.”
To my knowledge, no tape recordings exist of any of the discussions that Duke denies above. But the problem with these denials is obvious: contemporaneous witnesses with whom the lacrosse players spoke verify the players’ version of events. (If the lacrosse players had first mentioned any of these conversations not right after they occurred but instead in, say, March 2007, that would be a very different matter.) So Duke will have to ask the court to believe that in March 2006, the lacrosse players made up—for no apparent reason—versions of conversations that would prove damning to Duke once the case imploded.
“President Brodhead admits that he did not meet with the lacrosse players’ lawyers to review ‘evidence.’”
The use of “scare quotes” in this sentence is bizarre. Is Duke really intending to suggest that the lacrosse players’ attorneys—some of the most highly-regarded attorneys in the state—were offering to share tainted “evidence” with Duke? If not, why use the quotation marks?
“Duke University and Richard Brodhead admit that Richard Brodhead has served as President of Duke University, including during the period from March 13, 2006 (the date of Plaintiffs’ party) to the present.”
This description of March 13, 2006—which the university’s attorneys repeat over and over again in their filing—appears to be a not-so-subtle dig to suggest that the lacrosse players were to blame for what happened to them for attending the party in the first place. Yet by not qualifying the remark with “some of,” the statement is legally inaccurate and therefore inflammatory. Several plaintiffs, most notably Brad Ross, did not attend the party. In what way could the event be described as Ross’ party?
“Duke University denies that it has no rules or policies ‘with respect to the hiring of exotic dancers to perform at student parties.’”
This statement is particularly odd—first, because no such rule appears to have existed in the Duke Student Bulletin of 2005-6 (a document, of course, which Duke maintains it didn’t have to follow anyway); and second, because having made the claim, the university’s filing doesn’t even attempt to identify the previously unknown rule and/or policy it claims existed.
Here’s how the Duke filing describes the DNA evidence improperly withheld in Brian Meehan’s report: “The Duke University Defendants and the Duke SANE Defendants further admit that evidence has also been presented at those legal proceedings that would tend to show that Ms. Mangum had engaged in sexual activity with multiple males.” [emphasis added] “Tend to show”? Does the University have another explanation for the DNA findings?
“Duke University further admits that on March 25, President Brodhead decided to forfeit the next two lacrosse games, in part as punishment for the wrongdoing [‘which at a minimum included unlawful underage drinking and the provision of alcohol to minors’] which the players admitted, and in part because of concerns for the safety of the players.” He did? If so, why didn’t he mention the latter point in his cancellation statement? And with regard to the former, why did he begin his statement not with the (now-alleged) reason for the cancellation but instead with the following: “Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke. The criminal allegations against three members of our men’s lacrosse team, if verified, will warrant very serious penalties.
(A note for the record: Brodhead’s March 25, 2006 statement was his most due-process friendly one until the late fall of 2006.)
Regarding the potbangers’ rally: “The Duke University Defendants admit that some individuals who were employed by Duke University engaged in their constitutional right of free speech by participating in gatherings such as the one that occurred on Sunday, March 26, 2006.” Regarding the “wanted” poster: “Duke University admits on information and belief that a poster with the photographs of the Duke University men’s lacrosse team was created and distributed by Sam Hummel, who is a former employee of Duke University.” And regarding the more general anti-lacrosse players’ attitude on campus: “Duke University admits that it follows a practice of academic freedom and that faculty and students are free to exercise their individual First Amendment right to free speech.”
Duke’s affirmation of “constitutional right of free speech” would ring a little less hollow if such a clause were contained in the university’s anti-harassment code. But no such qualifier exists. Imagine if, for instance, “some individuals who were employed by Duke University” chanted the N-word outside a house rented by black Duke students. Does anyone really believe the University would suggest that such behavior didn’t fall under its anti-harassment code, and instead was an example of the “constitutional right of free speech”?
Duke’s response essentially makes no explanation to the allegations that higher-ups pressured Duke officer Christopher Day to modify his March 14, 2006 report, which correctly stressed the evidence of Mangum’s unreliability. Duke concedes that at least three administrators, however, knew of Day’s report by March 15, 2006.
So we have learned that: University funds paid for the Group of 88’s ad; Duke believes the AG’s conclusions about the medical evidence were wrong; senior administrators knew of Officer Day’s report almost instantaneously but did nothing to disseminate it either publicly or to the lacrosse players’ attorneys; and Duke as an institution, along with its senior administrators, believe they have no obligation to act when they know of factually erroneous legal filings regarding their students. And all of this has come before any discovery has occurred.
No wonder Duke was so desperate to have this case dismissed.