Reflections on the Motions to Dismiss

The several hundred pages of briefs filed last Friday contained four items of note. Two were genuine surprises—even at a stage in the process when only the most jaded person could be surprised about the case. Two more were expected legal arguments—but nonetheless spoke volumes about the atmosphere in Durham and at Duke.

The surprises:

1.) Duke attorneys obliquely revived the “something happened” argument.

When a judge evaluates a motion to dismiss, factual claims of the plaintiffs (in this case, the lacrosse players) must be accepted as true. Duke’s attorneys therefore had no legal rationale for challenging the factual claims of the players. They certainly had no legal rationale for challenging the factual conclusions of the Attorney General’s report.

Yet twice in the Duke Hospital brief, attorneys Jamie Gorelick and Dan McLamb did just that. First, they flatly asserted that former SANE nurse-in-training Tara Levicy “did not” give “false and misleading” information to the police. Yet the Attorney General’s report made clear that Levicy did not base her conclusions on any objective medical evidence. When, then, Levicy told police that Mangum’s medical exam corroborated the accuser’s myriad stories, or when Levicy told police that Mangum’s medical exam indicated the accuser experienced “blunt force trauma,” how was that information not “false and misleading”? Duke doesn’t say. Are Gorelick and McLamb suggesting that Mangum did experience blunt force trauma, or that her exam was consistent with a claim of sexual assault?

Then, of course, the Duke Duo followed up with a Nifongesque description of Mangum as “the victim”—not the alleged victim, not the accuser, but “the victim.”

Beyond the lack of any legal rationale for these items, it’s hard to see any public relations benefit for Duke to suggest that maybe—just maybe—Levicy was right all along, and maybe—just maybe—Mangum was a “victim.”

The inclusion of these gratuitous clauses suggests a degree of bitterness among the Duke attorneys that’s surprising for lawyers of this caliber.

2.) Gottlieb implicated Levicy as the key figure in initiating the case.

Up until Friday, representatives of Duke and those of Durham officials had tended to corroborate each others’ arguments. (That both could blame everything on Mike Nifong helped this pattern along.) It therefore was stunning to see Gottlieb’s brief choose not to blame everything on Nifong but also to target Levicy so unequivocally.

On no fewer than four occasions, Gottlieb asserted that he and the Durham investigators based their decision to proceed with the case (in the period before Nifong even became involved) on the statements of the discredited former SANE nurse-in-training. Those statements—as everyone except, it seems, for Gorelick and McLamb now concede—were at the very least inaccurate.

The Gottlieb brief also presents the court with a dilemma, since it so directly and repeatedly contradicts the assertions and arguments in the Duke Hospital brief. If the defendants can’t even get their story straight, can the court really grant a motion to dismiss?

The expected, if nonetheless startling, items:

1.) The Durham Police Department continues to believe that its basic approach to the lacrosse case was acceptable.

One depressing vignette of the case was the fate of the Whichard Committee. For a short period last summer, it appeared as if the Durham political and even media elite planned to come to grips with how the Police Department so badly botched this case, with the hope of suggesting reforms to ensure that, in the future, the city didn’t prosecute innocent people.

Then, after one session, the committee was suspended, and never heard from again.

As the briefs from current and former police officers make clear, things are back to usual at the DPD. The City of Durham professes to see nothing wrong with the decision to seek a non-testimonial order solely on the basis of group identity, without providing a scintilla of evidence that every subject of the NTO was even present in Durham that evening. Imagine the local reaction if the city had tried this with a group more politically popular in Durham.

The City of Durham professes to see nothing wrong with its official Police Department spokesperson uttering demonstrably false statements—and making seemingly slanderous editorial comments—about Durham residents. Imagine the local reaction if the city had tried this with a group more politically popular in Durham.

And the Gottlieb brief—contradicted by nothing in the Durham filings, or any action of the DPD—deems it absurd to term the ex-sergeant’s behavior “malicious,” or “reckless[ly] indifferen[t] to the rights of others,” or “prejudicial or injurious” to the lacrosse players. Imagine the local reaction if Gottlieb’s behavior had been directed at a group more politically popular in Durham.

2.) Duke has codes of conduct for both its students and its professors, but believes that it has no legal obligation to enforce either standard when it might be politically incorrect to do so.

Yes, the Duke motion to dismiss admits, Duke professors might be required to treat all students with respect as fellow members of the academic community, and not to harass them on basis of race, class, or gender; and yes, Duke professors might have (without foundation) publicly ridiculed the lacrosse players’ “arrogant sexual prowess,” or suggested that one of them advocated genocide against Native Americans, or sent out a mass e-mail hinting at a secret witness that would implicate many of them in making racial slurs.

Should Duke be legally liable for its failure to enforce its own policies against those professors? No: the institution’s “policies must be balanced against principles of academic freedom.”

Imagine if Grant Farred, Peter Wood, and Karla Holloway (the trio who made the remarks above) had directed their unsubstantiated character assassinations against Duke students of preferred race, gender, or sexual orientation. Does anyone believe that Duke would have cited “principles of academic freedom” to defend such remarks? (The Group of 88 would have swung back into action, perhaps with another “shut up and teach” forum.)

And yes, the Duke brief admits, Duke’s student bulletin prohibits harassment of any type, including on basis of race or gender; and yes, Duke students might have distributed “wanted” posters around campus with the lacrosse players’ photos on them, and publicly accosted the players as they tried to walk around campus.

Should Duke be legally liable for its failure to enforce its own anti-harassment policies against those students? No: the lacrosse players never “suffered any physical injury” as a result of the harassment.

Imagine if roving mobs of Duke students had directed their efforts against undergraduates of the preferred race, gender, or sexual orientation. Does anyone believe that Duke would have elected not to enforce its anti-harassment policies against the offenders, or suggested that it had no legal liability to act because the harassed students never “suffered any physical injury”? (The Group of 88 would have demanded campus-wide “sensitivity training” and an administrative purge in around five seconds.)

That a double standard exists in the contemporary academy would surprise no one familiar with the work of FIRE, the academic free speech organization that has made a national reputation exposing such dubious academic conduct. It is, nonetheless, startling (and quite rare) to see a University publicly present its double standard in such stark terms.

Given that some Duke parents spend upwards of $200,000 for four years of tuition, it would be refreshing, if only in the interests of full disclosure, for Duke to amend its recruitment items to inform parents that while the University might seem to promise that students won’t be harassed, and that professors will treat them with respect, when a politically correct crusade comes along, all bets are off.