A: Legally, Duke seems to be most vulnerable on two items:
1.) The FERPA claim—that someone at Duke gave the Durham Police federally protected student information (student keycard records) and then Duke, at the very least, remained silent as (a) Nifong subpoenaed these records, after-the-fact; and (b) the court ruled that Nifong shouldn't have access to them.
2.) The failure to enforce its anti-harassment policy. Friday's lawsuit recounts in considerable detail the way in which various professors and (in some cases) students violated the policy in their behavior toward the lacrosse players; despite repeated requests from representatives of the team that Duke enforce its policy, the University, it appears, chose not to do so.
In terms of policy, the two most troubling allegations are: (a) the assertion that, in a campus disciplinary proceeding on a wholly unrelated matter, Matt Wilson was asked by Duke representatives about the party; (b) the claim that Duke pressured its own police officers to modify their reports in such a way to make it appear as if a crime could have occurred.
Q: Why are there two lawsuits?
A: In part because the students in the Ekstrand lawsuit suffered unique, individual harm—Ryan McFadyen through the release of his e-mail, Matt Wilson through what appears to have been disproportionate punishment by Duke and abuse of his campus disciplinary process.
Q: What's the difference between the two suits?
A: For the most part, the suits are directed at the same people. The Ekstrand suit also names DNA Security and Dr. Brian Meehan, but it seems to me unlikely that a suit against either will survive a motion for summary judgment.
The lawsuit filed last week goes into somewhat more detail about Duke's responsibility for the dubious record of Tara Levicy. Both lawsuits touch on, in somewhat different but complementary ways, the haphazard manner in which Duke appears to have dealt with FERPA-related issues.
Q: What is Duke's likely response?
A: I suspect that the response (which is due in around three months) will revolve around three points:
1.) It was all Nifong's fault, and so any civil suit should be directed only at him.
2.) Even if the players suffered harm, they didn't suffer that much harm, and whatever harm that did occur was unintentional.
3.) Perhaps some Duke professors (Reeve Huston, Grant Farred) did behave inappropriately, and perhaps some Duke rules (like prohibiting departmental funds paying for political ads, or requiring that departmental endorsements of ads come from actual votes of the department) were broken, and perhaps some Duke employees (like Tara Levicy) did some improper things. But the administration can't be held responsible for the behavior of individual professors or the wrongdoing of individual employees.
Q: Why didn't Duke settle?
A: That question is very hard to answer. Despite BOT chairman Bob Steel's commendable commitment to transparency in his position as undersecretary of the treasury, in dealing with the aftermath of the lacrosse case, the Brodhead administration has embarked upon a policy widely ridiculed on the Liestoppers forum as "moveon.duke"—i.e., there will be no investigation (or even critical self-reflection) into the conduct of either the administration or especially the faculty.
Judged strictly from the standpoint of the Brodhead administration's self-interest, this approach is unsurprising. The quickest way for a university president to be deposed is to experience a faculty revolt (think Larry Summers). Any inquiry into how the faculty behaved and why so many rushed to judgment would, at the least, ask some hard questions about one-sidedness in Duke's personnel policy and, at the most, recommend punishment for those professors who violated the Faculty Handbook. Either outcome would surely trigger faculty unrest. Better, from Brodhead's perspective, to do nothing.
The drawback with this policy, however, is its expense: a civil suit—complete with discovery and depositions—is the functional equivalent of an inquiry into Duke's conduct in the case. Thus far, then, Duke has settled all civil suits before the discovery phase.
It's unclear why Duke has elected to change its policy now: when it previously settled with the Dowds, the falsely accused players, and former coach Mike Pressler, the University surely knew that a suit from the unindicted players was likely.
Q: What's next?
A: As with the falsely accused players' civil suits against Nifong, the city of
At that point, the case would go before a judge to consider a motion to dismiss. Keeping in mind that, at that stage, all facts of the case must be considered in the light most favorable to the plaintiffs, it seems unlikely that Duke and at least Sgt. Gottlieb and Cpl. Addison could prevail in the motion.
Duke then would have to choose between settling and allowing discovery to proceed.
We're around two months away from the next stage of the civil suit against the city, DNA Security, and Nifong; therefore, the blog will return to hiatus, but when the next filings are made, I'll have some analysis.