Lawsuit Summary

“The simple truth is that Brodhead and Duke were indifferent to the truth.” That’s perhaps the most powerful line in a lawsuit filed yesterday behalf of 38 of the unindicted lacrosse players and their families. The suit was filed against President Richard Brodhead, a host of Duke administrators, and the city of Durham. The chief targets, however, were Brodhead and Duke.

The suit’s basic argument: Duke’s actions exhibited a troubling pattern of (a) refusing to enforce its own procedures—whether regarding supervision of SANE nurse-in-training Tara Levicy or upholding the provisions of the University’s anti-harassment code—when doing so would have helped its students who were members of the lacrosse team; and (2) withholding from the public information in its possession that would have cast doubt on Nifong’s theories; and (3) issuing highly misleading statements and perhaps even (in the suit’s most explosive allegation) seeking to manufacture evidence to suggest the players’ guilt.

The suit alleges intentional infliction of emotional distress; fraud and conspiracy to defraud; breach of duty to protect students from known dangers and harassment; breach of contract; and negligent supervision of duke professors and employees. The following passage lays out the suit’s basic claim against Duke:

Throughout the rape hoax crisis, as Nifong, Durham police and city officials, activist Duke professors and student protestors, the media, and others repeatedly publicly declared the players guilty of a savage gang rape and a “wall of silence” designed to conceal the truth, Duke took no action to disclose the exculpatory evidence in Duke’s exclusive possession, or to confirm the players’ full cooperation with the investigation. Rather, Duke took active steps to suppress exculpatory evidence in its possession and to silence its employees who knew of it. Duke also implicitly condoned and approved of, and thereby encouraged, the efforts of Duke faculty members, academic departments, and students to harass and condemn the lacrosse players, even conferring its official imprimatur upon the most inflammatory of faculty statements against the lacrosse team—the so-called “Group of 88” ad . . . At the same time, the Brodhead administration executed a series of carefully timed reprimands and other disciplinary actions against the lacrosse team that were based on Mangum’s rape allegations and that generated a public impression of the players’ guilt.

Nor, the suit notes, can the University claim that the President and Board of Trustees should not be held responsible:

After Mangum’s rape allegations had been publicly exposed as a malicious and tragic hoax, Brodhead admitted that we “had responsibility for the statements the university made and the actions the university took” throughout the rape hoax crisis. Chairman Steel, who had taken an active role in collaborating with President Brodhead throughout the crisis, likewise later acknowledged that throughout the rape hoax crisis, Brodhead “had consulted regularly with the Trustees” and that “the board agreed with the . . . actions he took.” Steel affirmed that “anyone critical of President Brodhead should be similarly critical of the entire board.” Under Brodhead’s and Steel’s direction, Duke capitulated to the various demands and pressures from the media, activist faculty members, and student protestors with a calculated, skillfully executed strategy of statements, actions, and omissions designed to protect Duke’s and their own interests by publicly maligning and punishing the players and distancing Duke from them.

Some of the suit’s key points:

1.) Tara Levicy

Her actions, the suit contends, were malicious, willful and wanton”; her conduct “was intended to and did cause mental anguish and severe emotional distress to the plaintiffs or was committed with reckless disregard for its foreseeable impact on the plaintiffs’ emotional states.”

Levicy is not only a defendant but, as an employee of Duke, is a critical component of the suit. Since Levicy’s actions “were performed in the scope of employment . . . managers, trustees, and/or officers of Defendants Duke University, DUHS, and Duke Hospital participated in, condoned, and ratified Levicy’s actions. Levicy’s conduct is at the heart of the suit’s claims of emotional distress, negligent supervision of employees, and breach of duty of care in conducting and reporting of forensic medical examination.

The filing traces Levicy’s dismal record throughout the case. Her March 16, 2006 assertion—“with an intentional, or at least reckless, disregard for the truth”—that “there were signs consistent with sexual assault,” even though her exam (as the Attorney General’s investigation would make clear) had actually produced no such evidence. Her “crucially false and misleading statements” to Gottlieb on March 21, 2006 that the SANE exam suggested that Crystal Mangum had experienced “blunt force trauma.” Her undocumented contacts with Nifong later in the case.

As the filing makes clear, Levicy’s conduct had an enormous impact: given the inherent unreliability of Mangum’s stories, “the prestige and credibility of Duke University Hospital thus provided the core support for the investigation (and later, the prosecution) against the lacrosse players.” Even more problematic, “Levicy’s statement to the Durham police was later corroborated, falsely, in public statements by Levicy’s supervisor, Theresa Arico, who was the director of Duke Hospital’s SANE program.” The suit notes that Levicy’s false and misleading testimony provided the basis for (1) the March 23, 2006 NTO that launched the case into the media; and (2) Nifong’s publicity barrage over the next ten days.

In short, if Duke Hospital had provided a competent and qualified SANE nurse, rather than Tara Levicy, “the false rape charges would never have become public.”

2.) Duke didn’t enforce its own policies prohibiting the harassment of students.

Lest anyone forget, the suit lays out the atmosphere in which the lacrosse players existed in the spring of 2006.

The combination of faculty animosity, faculty and student protests, community outrage, and a massive invasion of the Duke campus by local and national media, transformed Duke into what CBS News described as a “Campus Under Siege.” The atmosphere was intensely hostile, even dangerous, for the lacrosse players. They were accosted and intimidated at their homes and on campus by large groups of angry, pot-banging student protestors carrying “castrate” signs and yelling threats. Their faces appeared on “Wanted”-style posters that flooded the campus and Durham. Some players were publicly singled out in class by their professors for harassment and condemnation. They were besieged by news reporters and camera crews. They lived in fear of physical attacks, under threats of drive-by shootings and racial violence. Increased police patrols were required in the neighborhood where many of them lived. They were forced to flee from town during their final exams when a menacing radical hate group called the New Black Panthers descended on the campus. And in the midst of this intense community outrage and national media attention, 88 Duke professors took out a full-page ad in the student newspaper publicly thanking student protestors for “not waiting and for making yourselves heard.”

As the suit notes, “Nowhere in his April 5 public statement, nor in any other public utterance throughout the rape hoax crisis, did Brodhead criticize the activist faculty members and student protestors or call upon them to stop their outrageous harassment and threatening behavior and their vitriolic, hate-filled comments toward the lacrosse players.” (Indeed, on April 20, 2006, he actually shared the platform with the one student who had publicly confessed to distributing the vigilante posters, and with Mark Anthony—“thugniggaintellectual”—Neal.) Argue the plaintiffs, “Brodhead thus tacitly condoned and encouraged the activist faculty members and student protestors in their conduct against the lacrosse players. “

At the very least, the suit argues, Duke didn’t enforce its “formal, written policy strictly forbidding harassment of any student ‘for any reason.’” What were the acts that violated this policy? “Myriad public and private statements by Richard Brodhead, Robert Steel, John Burness, the activist faculty members and student protestors, and others condemning the plaintiffs, impugning their integrity, and implying and/or explicitly stating that they were guilty of criminal activity; the ad placed in the Duke Chronicle and subsequent group and individual statements by the Group of 88; harassing student protests on campus and in front of the lacrosse players’ residences, which were conducted and/or organized in part by Duke faculty members and other employees; the ‘Wanted’ and other posters distributed and posted throughout campus because of the acts and/or omissions of Duke and its agents; and in-class condemnations by Duke professors.”

The anti-harassment policy “also specifically prohibits harassment of any student “on any demographic basis,” including among other things race, color, ethnic origin, gender, and class. Throughout the rape hoax crisis, however, Duke made no effort whatever to enforce its anti-harassment policy against the open and flagrant violations of the policy by certain activist faculty members and student protestors . . . [Indeed] numerous statements made by Duke faculty members evinced discrimination and bias against the lacrosse players on the basis of their race, gender, and class.” This behavior, the suit contends, included “in-class harassment on the basis of race and/or gender,” and “Duke took no action to investigate, punish, or otherwise enforce its anti-harassment policies against these clear violations.”

The highest profile example of this pattern, of course, was the Group of 88’s ad. As the suit notes, even some of the ad’s signatories have conceded the deep harm it caused:

Months later, after Mangum’s rape charge, and the ensuing investigation into it, had been exposed as a malicious and tragic hoax, Susan Thorne, an associate professor and associate chair of the Department of History who signed the Group of 88 ad, said of the ad: ‘I deeply regret, deeply regret contributing to tremendous harm that was done to [the plaintiffs]. I can understand any hostility they feel for me.’”

The basic conclusion:

On its face, and when considered in light of all the circumstances surrounding its publication, the ad made unmistakably clear that its faculty signatories and departmental sponsors believed that Mangum’s rape allegations were true, and it wrongfully, knowingly, and willfully subjected the players to notoriety, opprobrium, derision, humiliation, and well-founded fear for their own safety. Due to its defamatory and inflammatory message, its express exhortation to the “protestors making collective noise” to “turn up the volume” and “make yourselves heard,” and its high profile on the Duke campus (and throughout the country), the ad interfered significantly with the players’ work and education, adversely affected their living conditions, and caused the players serious harm—emotional, reputational, and otherwise.

Through its silence, Duke confirmed that the ad represented the official position not only of 15 Duke academic departments and programs, but of Duke University itself. Months later, after Mangum’s rape allegations and Nifong’s investigation had been publicly exposed as a malicious and tragic hoax, Brodhead acknowledged that activist faculty members and student protestors “were quick to speak as if the [rape] charges were true . . . , and some faculty made statements that were ill-judged and divisive.” Brodhead also admitted that “the public as well as the accused students and their families could have thought that those were expressions of the university as a whole.”

3.) Duke administrators not only remained silent in the face of statements by authorities, the media, and Duke professors that the administrators knew were untrue—but administrators took actions that aided the investigation.

This pattern, the suit contends, began at the start of the case, with the March 23 NTO. According to the suit, the “statements in the NTO application, publicly available and widely reported, were false. Moreover, Duke knew or should have known that they were demonstrably false, on the basis of medical evidence in Duke’s exclusive possession. Duke took no action to rebut or correct these public charges.” The pattern of Duke’s withholding exculpatory information in its possession continued through Brodhead’s March 25 statement canceling the Georgetown game, his March 28 statement suspending the season, and especially his April 5 statement canceling the season. That latter statement, it’s worth remembering, effectively presumed guilt.

According to the suit, Duke administrators knew or should have known that: (1) Levicy had provided false or misleading testimony; and (2) the players had cooperated with the investigation, rather than creating a “wall of silence.” Even so, they “watched silently as Nifong characterized the evidence and otherwise commented on the case and the lacrosse players in a way that Duke knew or should have known to be false. To the contrary, Duke improperly provided Nifong’s investigators with critical credibility and cooperation in a number of ways: Duke illegally disclosed the key card reports; Duke took official actions and made official and unofficial statements to the media that were calculated to malign the lacrosse players and to distance Duke from them; Duke took no significant action to ensure that its activist faculty members and student protestors, who were presuming the players’ guilt and inflaming public outrage against the lacrosse team, were adhering to University standards of behavior, including its anti-harassment policy. And Duke would continue, in the ensuing weeks, to fuel these attacks on its own students.”

4.) Duke violated federal law.

The plaintiffs also claim that Duke violated federal law (FERPA) that protects student rights. The suit contends,

At some time on March 31, Investigators Smith and Stotsenberg of the Duke Police handed over to Gottlieb several reports. Among the reports, according to Gottlieb’s later testimony, was “one key card report for the Duke team members from March 13 and March 14.” This report was prepared by the Duke Card Office of Duke University.

The key card reports provided information on when and where the members of the lacrosse team had swiped their Duke ID cards in slots on locations at Duke’s campus during March 13 and March 14. Many of the doors, dining facilities, vending machines, photocopy machines, and so forth on Duke’s campus are operated by these key card slots. For example, to access virtually any exterior door of Duke’s dormitories and academic buildings requires the swiping of a Duke key card. The key card reports thus allowed the Durham Investigators to roughly track the movements of lacrosse players on Duke’s campus on March 13 and 14. These reports therefore aided the Durham Investigators in their effort to determine which lacrosse players had been in Durham on the night of the alleged rape and had likely attended the party.

No subpoena had been issued for these reports. In the absence of a subpoena (and the opportunity for the interested parties to quash the subpoena), the disclosure of information in these reports -- most notably, but not necessarily limited to, the key card report -- was a clear violation of the Family Educational Records and Privacy Act (FERPA), as well as Duke’s own privacy policies.

The University then, the suit argued, conspired with Durham investigators to fraudulently conceal Duke’s FERPA violations.”

And, finally, the most explosive allegation, regarding the report of Duke Police officer Christopher Day, who (accurately) reported that he overheard a DPD officer (John Shelton) state that Mangum claim to have been raped by 20 people.

Duke, the suit contends, “took two actions directed toward bolstering the credibility of Mangum’s rape allegations. First, Officer Day of the Duke Police added a “continuation page” as an addendum to his police report prepared at Duke Hospital on March 14, in which he had noted the manifest inconsistencies in Mangum’s allegations. Day’s ‘continuation page’ purported to cast doubt on the reliability of his own contemporaneous report, which Duke had not yet disclosed to the lacrosse players or the public, by indicating that it was based on hearsay and imperfectly overheard conversations. Upon information and belief, Day was coerced to write this continuation page by Duke administration officials, who had previously prevented his exculpatory version of events from becoming public.

“On information and belief, in addition to suppressing the Day report, Duke police officials, at Nifong’s request, also directed Duke police officers who had been present at Duke Hospital on March 14 to write deliberately misleading accounts of what they witnessed that night. The Duke police officers were directed to prepare statements that suppressed exculpatory facts about Mangum’s lack of credibility, selectively asserted facts suggesting the guilt of the players, and mischaracterized their own conduct that night by casting the Duke police as mere bystanders. In particular, on information and belief, one Duke officer who prepared such a statement later admitted that, based on his observation at the time, Mangum was ‘faking’ the whole thing; and another Duke officer was directed to suppress the fact that she had overheard a Durham Police sergeant, upon emerging from Mangum’s hospital room, say loudly, ‘I think she is lying!’”

Duke’s response: “If these plaintiffs have a complaint, it is with Mr. Nifong.” This is, to put it mildly, a peculiar argument: it’s not clear to me how Nifong was responsible for Duke’s decision to allow its faculty and students to violate the University’s anti-harassment policy; or for Officer Day to rewrite his report; or for Duke’s failure to supervise Tara Levicy; or for Duke’s decision to supply federally protected student records to the police.