The Duke Motion to Dismiss

The Duke motion to dismiss was filed yesterday afternoon. The document is a curious one—reflecting the University’s twin, and perhaps irreconcilable, aims in the lawsuit.

On the one hand, the 50-page motion seems geared not for the court but for public opinion, describing the lacrosse players’ legal claims in a manner that anyone who has read the case file would recognize as ridiculous—but which might allow the University to score some public relations points. On the other hand, some of the legal claims in the brief might be valid—but they are devastating in terms of public relations, suggesting as they do that Duke administrators believe they have no legal obligation to uphold anti-harassment policies, the Faculty Handbook, or even federal law regarding the privacy of student records.

A summary of the filing:

The Banal

Duke’s motion to dismiss is riddled with statements to which no one could possibly object—and which have no bearing on the lacrosse players’ lawsuit.

For instance:

“Our system of justice encourages individuals to cooperate with the police, not to hinder them, and to provide information to prosecutors, not to stonewall them.”

Nothing in the lacrosse players’ lawsuit suggests otherwise.

“Nor did Duke have a legal obligation to publicly proclaim Plaintiffs’ innocence.”

No one, as far as I know, has ever claimed that Duke did have such a legal obligation. Certainly the lacrosse players’ lawsuit makes no such claim.

“[SANE nurse Tara] Levicy’s conduct was not, as a matter of law, ‘extreme and outrageous’ because under North Carolina law reporting a crime to the police and prosecutors—even if that report is false—is not ‘extreme and outrageous conduct.’”

No one, as far as I know, has ever claimed that Levicy engaged in improper conduct by simply “reporting a crime.” Certainly the lacrosse players’ lawsuit makes no such claim.

Only two possible explanations exist for the inclusion of these clauses, neither of which reflects favorably upon Duke. (1) The Duke attorneys included the passages above (and the “Creating Writing 101” paragraph) for public relations, rather than legal, reasons—a strategy that risks alienating the judge who is considering the motion. (2) The Duke attorneys are unaware of (a) their clients’ behavior over the past 28 months and (b) the substance of the lacrosse players’ lawsuit.

Given the high quality of the Duke attorneys, (1) is the most plausible explanation.

Revisionist History

Other passages in the Duke brief reflect events as Duke administrators doubtless wish they had occurred, rather than what actually happened.

For instance:

“Duke waited for the investigation by the police and the prosecutor to run its course, and that is exactly what the criminal justice system expected it to do.”

Well, not exactly:

• The president of Duke canceled the lacrosse season (without even hinting he was doing so to protect the players’ safety), an action almost unparalleled in the history of Division I athletics.

• Duke opened a parallel investigation of the players’ conduct, in which the players had no right of cross-examining witnesses or even presence at witness interviews—which threatened (if, in fact, there had been any bad behavior by the players beyond the common college-age issue of underage drinking) to provide the police and prosecutor with additional evidence for their campaign against the team.

• On April 5, 2006, president of Duke issued a public statement falsely asserting that the players had a history of racist comments.

Beyond these errors of commission were errors of omission, such as:

• Eighty-eight Duke faculty members—violating, as we now know, at least two Duke rules (regarding university payment of political ads and the method through which departments formally endorse political ads)—published a statement that, among other things, thanked protesters who had urged the lacrosse players’ castration and had distributed wanted posters with the players’ photos around campus. The Duke administration did nothing in response.

• Several Duke faculty members engaged in in-class harassment against the players—behavior that seemed to violate both the Faculty Handbook and Duke’s anti-harassment policies. The Duke administration did nothing in response.

• At least three faculty members (Peter Wood, Grant Farred, and Karla Holloway) made public statements that clearly violated the Faculty Handbook. The Duke administration did nothing in response.

• A Duke employee—Tara Levicy—appeared to violate multiple best practices for SANE nurse behavior, harming Duke students in the process. The Duke administration did nothing in response.

Can Duke attorneys credibly assert that the above behavior constituted “Duke wait[ing] for the investigation by the police and the prosecutor to run its course” before taking any action?

The Legal

Duke cites North Carolina rulings to claim that it had no legal obligation to enforce either the student bulletin or the Faculty Handbook: “Plaintiffs fail, however, to allege the essential elements of any valid contract—the mutual manifestation of an intent to be bound . . . The North Carolina courts have consistently held, however, that bulletins of this nature—including Duke’s own student bulletin—are not binding contracts.”

Even if the item were a binding contract, Duke’s attorneys continue, the players’ lawsuit should be dismissed, because the players “have not alleged that they suffered any physical injury as a result of Duke’s alleged failure to enforce that policy.”

And, in an implicit defense of the Group of 88’s conduct, the Duke brief maintains that “anti-harassment policies must be balanced against principles of academic freedom”—i.e., if professors engaged in race/class/gender pedagogy are harassing students through statements or actions that reflect the professors’ academic worldview, such harassment is fair game.

Perhaps more than any other item in Duke’s 50-page response, that passage demonstrates just how damaging to Duke this lawsuit could potentially be. Duke’s attorneys base their claim on a 1991 case, Love v. Duke University, which held that the student bulletin didn’t constitute a contract. Love, therefore, is seemingly on-point in terms of legal strategy, although the claims in Love were much narrower than those in this case.

Beyond the legalities, however, ponder exactly what this filing says: that despite stated anti-harassment policies in the student bulletin, and a specific obligation in the Faculty Handbook that all Duke professors treat all Duke students with “respect” as fellow members of the academic community, in Duke’s legal opinion, these documents are just words. Parents of prospective Duke students, therefore, should have no expectation that administrators, professors, and even other students will abide by the provisions in the codes, and should have no expectation that the Duke administration will enforce these codes. Such a statement is a public relations nightmare.

Moreover, as any Duke student ever caught in the web of Dean Bryan’s Judicial Affairs Office can attest, Duke generally has enforced the student bulletin as if the University were legally obligated to do so. And looking over past editions of the Chronicle, I haven’t encountered other cases in which professors harassed students and the administration did nothing.

This pattern of practice, therefore, raises a troubling question: if Duke normally enforces both the bulletin and the Faculty Handbook, why did it not do so in this case? Was Duke’s behavior explicable by the fact that the targets were white males, and those allegedly violating the bulletin were politically correct African-American or feminist students? And was Duke’s behavior explicable by the fact that the targets were white males, and those allegedly violating the Faculty Handbook were professors whose race/class/gender pedagogy and “diversity” agenda dominates campus discourse?

A reader of the Duke motion also might experience a bit of intellectual whiplash. In a later section of their brief, the Duke attorneys argue that Duke administrators had no legal obligation to “care” for the lacrosse players, and therefore shouldn’t be held legally liable for urging the players not to tell their parents about the case, or for the decision to hire attorney/fixer Wes Covington. Why? Because, the Duke attorneys explain, “university educators and administrators . . . always remain charged with carrying out the ‘rules and regulations’ of the university.”

Yet, just pages before, these very same Duke attorneys had maintained that these very same “university educators and administrators” did not have to “carry out” the terms of the bulletin or Faculty Handbook—“the ‘rules and regulations’ of the university.”

How convenient.

Legal Effects

Unlike its discussion of Duke’s failure to enforce its anti-harassment policies or the Faculty Handbook, the Duke attorneys don’t even attempt a p.r.-based defense of Duke administrators’ March 2006 dealings with the lacrosse players. Nor does the brief even attempt a p.r.-based defense that Duke Police officers—in apparent violation of Buckley—handed over the lacrosse players’ keycard data to the DPD and Nifong—and then didn’t tell the lacrosse players that they had done so when, months later, the players successfully (or so they thought) fought the release of this information in court.

Instead, the Duke attorneys deny that “university administrator assumes a duty of care to a student by giving that student advice, however misguided or inadequate the advice may turn out to be [emphasis added].” Like so much else in this brief, I suspect that the University won’t be publicizing this point to prospective Duke parents. Allowing the players’ case to go forward, Duke’s attorneys maintain, could have a chilling effect: “Because such mentorship and guidance would be too risky under Plaintiffs’ theory of liability, students would be deprived of many important aspects of a university education that occur outside the classroom.”

Shouldn’t, however, a court want to “deprive” students of the kind of advice and guidance offered by Duke in this case? As Jim Coleman has pointed out, one effect of civil litigation is to provide a deterrent effect, and in this case, Universities should be deterred against administrators giving wildly “misguided” advice.

Regarding the key card data, the Duke attorneys concede that the key card data should have been protected under FERPA, but then blandly suggest, “Plaintiffs had no constitutionally protected expectation of privacy in that key card data.” In other words: yes, the law was violated, but Duke students have no “constitutionally protected expectation” that Duke employees won’t disclose their confidential data and then remain silent about the decision to do so.

How reassuring.

Historians should avoid predicting the future. But I believe I can say with certainty that Duke won’t be sending out any of the above passages to parents of prospective students in the Class of 2012.