The Dowd suit settlement has received a good bit of attention, including a high-level critique in the Chronicle and some scurrilous criticism from a few others. I thought it might be useful to put the case in some perspective.
In general, grade retaliation lawsuits are extremely difficult to win. In the humanities and social sciences, grading is somewhat or entirely subjective. Judges, for understandable reasons, have little interest in substituting their evaluation for that of the professor. Most institutions (though not, before the Dowd case, at least, Duke) have internal procedures for handling complaints of improper grading. Courts tend to be very reluctant to second-guess academic procedures.
Finally, courts have afforded academic freedom some constitutional protection since the 1957 decision Sweezy v. New Hampshire. Though Sweezy dealt with speech by a professor on a public campus, courts have generally shied away from rulings that could be perceived as attacking academic freedom in general. This tendency only heightens judges’ unease with overturning grades assigned by professors.
All that said, the Dowd suit was about as strong a grade retaliation suit as could be imagined. Between March 27 and April 6, Kim Curtis attended rallies denouncing the players (background, in this photo); suggested, in writing, that the lacrosse players (including two students in her class) were protecting the real rapists; and signed onto the Group of 88’s statement.
The grades of the two players in Curtis’ class showed an identical plunge: both received C- on a paper due the day before the Group of 88’s statement appeared; both received an F on the final paper. In Dowd’s case, this grade seemed highly suspicious, since the third paper was pretty clearly the best of his three for the class.
In short, the Dowd suit could portray the allegation in an easy-to-understand fashion: a professor accused two of her students, in writing, of criminal acts and participated in various public protests against them; and then the grades of the same two students plummeted even though the quality of their work stayed the same or even improved.
All of the above information was in the public domain. And it stands to reason that the Dowds’ highly regarded lawyer, Joseph Zeszotarski (past chair of both the Criminal Law Section, North Carolina Academy of Trial Lawyers and the Criminal Justice Section, North Carolina Bar Association), did not reveal all of his evidence in his initial filing, which requested monetary damages and also that Dowd’s grade be changed to a “P” (pass).
Duke, no doubt, recognized these problems as well. After a mediation effort, a settlement was reached. In an all-but-unprecedented development, a university resolved a grade retaliation suit before trial by not only agreeing to the student’s demand for the grade change, but by admitting publicly that the grade had been changed.
Moreover, the announcement of the grade change made clear that Curtis had been overruled: the statement indicated that the case was settled to the “mutual satisfaction of Kyle Dowd and his family and Duke University.” The name of Curtis, who was also a party to the suit, was conspicuously absent.
In theory, the Dowds could have rejected the mediation offer and sought to move forward legally. Yet the mediation changed the dynamics of the legal case: a court, properly, could ask whether the Dowds had a good-faith basis for continuing the lawsuit in light of Duke’s offer—especially since Duke already had agreed to their principal request (changing the grade to a “P”).
Since the fall, the Talk Left discussion forum has been periodically hijacked by a handful of Nifong enablers who reveled in others’ misery and appeared to operate under the belief that an accused was guilty until proved innocent beyond all reasonable doubt. The Dowds’ willingness to do the obvious and settle the case generated faux outrage from two figures in this contingent, who in turn were quoted in an anti-Dowd e-mail missive that I received yesterday. Such criticisms are hard to take seriously, given that they came from people who have spent the last 12 months engaging in anonymous character assaults against the lacrosse players.
A more serious response came from the Chronicle, which greeted the resolution of the case with a thoughtful editorial. Noting that the settlement “carries a sweep-it-under-the-rug feel to it, and its details are still murky and need to be cleared up,” the editorial noted:
There are still a number of loose ends to a story that raises crucial questions of academic freedom and campus culture. Students want to know how the University will step in if a teacher crosses certain lines, and they also want to know whether they should still take a class with Kim Curtis-the major actor in this story, who the administration did not respond to in its settlement.
It’s unnerving that Duke hasn’t been transparent in this case. The administration’s handling of the Dowd suit sets a bad precedent for how Duke may handle other similar cases in the future and how it is moving on in the aftermath of the lacrosse case.
Closure is now in sight for a campus that has been rocked in a major way this past year, but closure will also be hard to come by if Duke opts to start cleaning up by sweeping crucial matters like the Dowd case under the rug.
Though the parties’ statement explicitly said that Duke admitted no legal liability, the exclusion of Curtis’ name and the fact that Duke settled at all certainly contained an implicit message. But the Chronicle’s call for transparency by Duke is compelling: few acts violate academic integrity more severely than grade retaliation. The Chronicle is correct that the University has an obligation to ensure that all of its professors grade students fairly—and the facts in the public domain raise grave doubts about Curtis in this regard.
The Dowds showed extraordinary courage by standing on principle and filing the suit. It is encouraging to see that they received justice.