Friday, August 29, 2008

Cooper Response to Duke

The unindicted players represented by Chuck Cooper have filed a powerful response to Duke’s motion to dismiss. Summarized below, it addresses not only the legal arguments offered by Jamie Gorelick and Dan McLamb, but also the (scarcely credible) p.r. spin that the Duke attorneys chose to include in their legal filing.

The motion concludes, “Throughout the crisis, Richard Brodhead . . . and other Duke officials consistently sacrificed the rights and interests of the accused Duke students in an effort to avoid embarrassment to Duke and to minimize criticism of its administration. Mangum’s explosive allegations had created an angry mob led primarily by activist Duke faculty members, student protestors, and a hostile media, and the mob immediately rushed to condemn the lacrosse players, to intimidate and denounce the team’s defenders, and to demand the team’s swift and severe punishment. Brodhead repeatedly succumbed to the mob’s demands, and he effectively condoned its actions.”

The motion targets Brodhead, who the players’ attorneys correctly recall described himself as “fully responsible for Duke’s statements and actions throughout the rape hoax crisis.” (BOT chairman Bob Steel then issued a statement adding that the Trustees agreed with all of Brodhead’s acts.)

The three-pronged critique of Brodhead’s behavior:

--“Brodhead and Duke failed to disclose, and actively suppressed, material exculpatory evidence in Duke’s exclusive possession; discredited exculpatory evidence that had been publicly disclosed; and refused to review exculpatory evidence compiled by the players’ defense counsel.”

--“Brodhead and the University looked on passively as activist members of the Duke faculty and student protestors waged an extraordinarily vitriolic public campaign of abuse and harassment against the innocent lacrosse players,” culminating in the Group of 88’s statement, which made “unmistakably clear that its faculty sponsors believed that the rape had occurred, and it thanked the student protestors “for not waiting” to “mak[e] your selves heard” and exhorted them “to turn up the volume.” The ad was paid for with University funds and listed fifteen academic departments and programs as its sponsors. Brodhead took no steps to enforce Duke’s applicable anti-harassment policy; nor did he criticize, let alone discipline, the activist professors and student protestors; nor did he even disassociate the University from their shameful actions and statements. Accordingly, he implicitly condoned these actions and statements and made Duke responsible for them.”

--“Brodhead issued a series of carefully timed public statements and imposed a series of increasingly severe disciplinary measures on the team in an effort to satisfy the mob’s demands for immediate and severe sanctions against the team and to distance Duke and its administrators from the intense public hostility that had been focused on the innocent lacrosse players. The intended and inevitable effect of Brodhead’s statements and actions was to impute guilt to the players and to further inflame public opinion against them.”


Having responded to the Gorelick/McLamb p.r. spin, the Cooper brief then addresses the Duke legal arguments. Two of the brief’s elements—on Duke’s role in handing over student keycard information to Durham authorities, and on Duke’s claim that it has no legal obligation to enforce its own Faculty Handbook and anti-harassment policies—form the intellectual center of the brief.

1.) The Cooper brief argues that Duke’s release, without a warrant, of FERPA-protected student keycard records to Durham authorities is grounds for civil liability—especially since Duke didn’t tell the court that it had already improperly turned over this information when Mike Nifong subsequently subpoenaed it, in summer 2006.

There’s no doubt that Duke’s conduct in this regard action was improper. In its brief, Duke claimed that administrators and Duke police merely neglected to tell the players and their families that this information had been turned over improperly. The players’ response counters that Duke effectively perpetrated an “elaborate charade,” a fraud on the court, when—as Nifong unsuccessfully sought a subpoena for the records—Duke acted as if the records hadn’t already been turned over.

As I’ve noted previously, it’s very hard to develop an innocent explanation for Duke’s behavior on the keycard issue. And, the players’ attorneys contend, this record suggests that Duke was acting “under the color of state law,” in concert with Durham authorities, and therefore opening up the University to civil liability.

2.) The Cooper brief maintains that Duke should be held liable for failing to enforce its anti-harassment policies and allowing the players to be subjected to harassment.

There’s no doubt that behavior of anti-lacrosse faculty and students violated both the Duke Faculty Handbook and the university’s anti-harassment policies. Nor is there any doubt that Duke’s administration was either unwilling or unable to enforce those documents. Duke’s response, however, maintained that it had no legal obligation to enforce either of these documents.

If this case gets to trial, this issue will be the most significant one for educational administrators nationally. Citing a variety of cases, the Cooper brief maintains, “There is a national consensus that ‘the basic legal relation between a student and a private university or college is contractual in nature. The catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant become a part of the contract,’ as does a duty to act in good faith.” The brief also takes on Love, the North Carolina case cited prominently by Duke, arguing that it was based on a far different type (grading) of claim--the sort of issue on which courts almost always have deferred to academic institutions.

Duke also raised a number of other objections to this point: (1) the claim that the terms of the Faculty Handbook and the university’s anti-harassment policies included an unspecified “academic freedom” exception; and (2) that neither document constituted a contract because Duke could change them unilaterally.

As the plaintiffs point out, however, the academic freedom exception makes no sense: “By creating and promulgating those written policies, the University already struck the balance [between anti-harassment and academic freedom] it deemed appropriate; Plaintiffs merely ask the court to hold the University to its express promises. Moreover, the severe and prolonged harassment to which Plaintiffs were subjected can hardly be considered a legitimate expression of academic thought or an appropriate punishment for acts the University knew or should have known Plaintiffs did not do.”

Secondly, the players’ attorneys argue, while it’s true Duke has the unilateral right to change the terms of its bulletin, it didn’t do so in this case. Moreover, in a critical passage, the Cooper brief holds:

More importantly, even if the University could and did reserve the right to alter unilaterally the Bulletin’s anti-harassment policy and procedural protections prospectively, it surely could not have altered these policies retrospectively. Nor could Duke reasonably have expected that Plaintiffs would believe that the University could dispense entirely with such fundamental protections, as it in effect did in the course of the rape hoax. No prospective student or parent would select a school that reserved the power to permit and even foster the harassment of the student or to vilify and punish the student for acts the school knew or should have known the student did not do [emphasis added].

The brief also makes an intriguing argument about the University’s liability for the protests directed at the players’ private residences, asserting, “Many of the protests that invaded the privacy rights of Plaintiffs were organized and encouraged by members of Duke’s faculty, for whose conduct the University is liable.” Indeed, this pattern started with Duke adjunct professor Faulkner Fox’s role in organizing the potbangers’ March 25/26 protests.

The brief also touches on several other matters, two of which are most significant:

1.) Contrary to the Duke filing, the players’ brief contends that administration did engage in a pattern of “extreme and outrageous” infliction of emotional distress, including the following:

--attempted to suppress and then discredit Christopher Day report, while allowing then-SANE nurse-in-training Tara Levicy to mischaracterize evidence in Duke’s possession;

--“through local and national media, Defendants repeatedly maligned Plaintiffs alternately as racially motivated gang-rapists or accomplices who had built a “wall of silence” to protect those rapists”;

--passively observed protesters who either violated Duke procedures or threatened bodily harm to the players;

--punished players unfairly, including cancelling the season and subjecting them to a (public, and procedurally awkward) disciplinary investigation;

--cut corners legally, including seeking to arrange the odd Covington representation, working with Durham Police officers to allow unsupervised dorm-room interrogations, and improperly handing over FERPA-protected key card records.

2.) Duke assumed a role of providing legal advice to the players, and therefore is responsible for the bad advice provided.

The key legal issue on this point is whether the University had a fiduciary relationship with the players. Duke, in its brief, said no, citing a 2001 case (Davidson v. University of North Carolina) whose terms the players’ response disputed.

The players’ response said yes, citing a 1999 case (Madey v. Duke) which held that “a fiduciary relationship may exist under a variety of circumstances, and exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith and with due regard to the interests of the one reposing confidence.”

To make their case, the players’ brief argues that Duke administrators “assumed a special role of trust. Defendants deliberately and affirmatively attempted to – and for a time did – displace the people who would ordinarily have advised the players in this situation pursuant to a confidential relationship – namely, the players’ parents and lawyers.” In that respect, the attorneys claim, Duke’s behavior was not academic or administrative but legal in nature.

Duke’s brief maintained that allowing a lawsuit on these grounds would expose universities to frivolous lawsuits (“Don’t like the course your faculty advisor urged you to take? Sue the university!”) The players’ response: “Here, Defendants intentionally or recklessly gave advice at war with the players’ interest because they intended to protect Duke, even at the expense of Plaintiffs.”

If the motion to dismiss fails, the issues raised in this brief show why this case will be watched by every university counsel’s office in the country.


Insufficiently Sensitive said...

Bravo. This brief addresses Duke's weaselly defense in clear English, and brings home the broken responsibilities and active wrongs perpetrated by the University in the service of political correctness and the covering of University guzitse. The chickens have morphed bigger and meaner, and come home to roost.

Go Cooper! Now discovery, before the culprits finish destroying the rest of the evidence.

Anonymous said...

Every Duke lax supporter should be glad if Defendants - Duke or Durham - are engaged in evidence destruction.

Surely everyone has noticed that Defendants' actions have been heinous and hateful, but not really very clever. If Defendants destroy, or attempt to destroy, evidence, they will screw it up. The evidence will still emerge and the severe penalties associated with destruction of evidence will be added. These severe penalties will be grateful and satisfying to the Righteous and cause considerable heartburnings among the Defendants.

Whoo Hoo, everybody.

Gayle Miller said...

How - if at all - will a resolution of this case in the players' favor affect the despicable Group of 88? Despite the fullness of time (kind of) and my own general inclination to be forgiving of most dumb people (they may be educated but they are still dumb), this group has remained firmly in my vengeance radar!

Anonymous said...

And these people are educated?? Frivolous lawsuits? So being sued by students who were harassed and essentially stripped of their rights is equal to or might encourage frivolous lawsuits? When will these lawyers just shut up and take it? There is no argument on these points, or at least no argument that is logical and legit.

My favorite part? "No prospective student or parent would select a school that reserved the power to permit and even foster the harassment of the student or to vilify and punish the student for acts the school knew or should have known the student did not do." Ouch. If Duke knew what was good for them, they would quit now before even more attention is paid to the myriad ways in which they violated these students' rights.

Anonymous said...

I still wonder how long before the Durham media start asking hard questions of their civic leaders, as to why they acted the way they did.

Of course those leaders will plead inability to respond, due to the suits; but at least the FACTS of what they did can be reported FULLY to the public...

(which, up until now, has never been done).

Anonymous said...

"If the motion to dismiss fails, the issues raised in this brief show why this case will be watched by every university counsel’s office in the country."

This motion is also of great interest to college students and their parents. I am floored by the seeming passivity of the Duke parents. They really should be flooding the BOT with mail on this UNTIL THE BOT RESPONDS. Do you think they understand Duke's position and its implications?


Anonymous said...

Do any local attorneys have a sense for when we can expect the judge to rule on the motions to dismiss? As soon as the judge rules (and, I'm presuming these cases will go forward) the all-important discovery begins.

Anonymous said...

The BOT should CLEAN HOUSE, remove all those responsible, select a blue-ribbon panel (from OUTSIDE the state of NC) to prepare a full report on what happened;

FULLY DISCLOSE everything;

and then let Duke begin anew.

Otherwise, it's the university they are throwing under the bus in order to save themselves.

Anonymous said...

Once again I have declined an invitation from the Alumni Admissions group to interview prospective students and discuss life at Duke with them.

My reason? I will not support Duke in any way, financially or otherwise, until there is some accounting of the administration and faculty. Of course I still root for the basketball reason to be a zealot!

Still waiting...

ES Duke 1990

Debrah said...

The concluding motion is so powerful.

I'm glad that Brodhead, his administration, and mob faculty were singled out.

How can anyone try to defend these people?

This motion makes fools, once again, of some of the other little bloggers/professors who try to do so.

Gary Packwood said...

Cooper said...

...Mangum’s explosive allegations had created an angry mob led primarily by activist Duke faculty members, student protestors, and a hostile media.
What about Duke staff members? Activist Duke faculty and STAFF members.

The Duke University Office of Student Affairs is a $30M per year operation with nearly every Duke employee classified as STAFF...not faculty.

The G88 and their faculty friends on any university campus could not plan and launch a Keg Party... not to mention a Castrate March, without intimate involvement from STAFF level employees. That masters degree in student affairs comes in 'handy' when recruiting snare drummers and interpretative dance folks for the media to see and write about.

Anonymous said...

This is a discussion of a group of people who were prepared to throw the innocent under the bus to protect what they perceived as their own interests. It is sick. About the Handbook issue . . . this, I believe, went to the Supreme Court in a similar case with Springs Mills, a textile company, that wanted to have it both ways at least as much as Duke appears to want it. The matter was decided against them, but beyond this is a matter of law and Duke is not above the law.

Anonymous said...

I got an e-mail solicitation from Senator Elizabeth Dole. Most likely my response to her will never make a dint, but I registered my displeasure and disgust at her silence about the LAX injustice, especially in light of the fact that David Evans had even served in her office!

What cowardice!

And she wants re-elected?

Why should we trust her??

Anonymous said...

Excellent commentary, K.C. By the way, let us assume that a student did receive advice from a faculty adviser as well as other official advisory officials at Duke, and they gave advice according to the Duke catalog.

Now, let us assume that the student finished the coursework with the requisite grades that the catalog said were needed for graduation. However, at the last minute, Duke's administration tells the student that the catalog is NOT a contract and, therefore, the student cannot be graduated.

Are Jamie Gorelick and Richard Brodhead trying to tell us that Duke would be correct in such actions? It boggles the mind. That catalog -- as are the course syllabi that faculty members hand out at the beginning of a term -- are considered CONTRACTS in every sense of the word.

For Gorelick and Duke to claim that the university can make it up as it goes along is ludicrous, and if that is the best that Duke's politically-connected, supposedly-illustrious legal help that the university can muster, maybe some refunds are due those people who are footing the bill. I do hope that the parents of the students who are paying the big bucks to send their children to Duke are aware that the university has a low view of how it can treat them.

Anonymous said...

Is Broadhead a Communist?

Debrah said...


Duke dean promoted

DURHAM -- Duke University Dean of Undergraduate Education Steve Nowicki has been promoted to vice provost for undergraduate education, Provost Peter Lange announced this week.

"Nowicki's responsibility spans several schools," Lange said. "That's the biggest reason [for the added title]."

Lange said the title change had been discussed for some time, as Nowicki's purview encompasses both undergraduate schools and their programming, but administrators wanted to wait until Fall to make it official.

Nowicki joined Duke as an assistant professor in 1989 and has taught in the departments of biology, psychology and neurobiology since then. He was appointed dean of natural sciences in 2004 and became the first-ever dean of undergraduate education in 2007, a position created by President Richard Brodhead to unite the academic and social aspects of the student experience.

Debrah said...

This article was not listed prominently in the H-S online. Rather, it was listed under the "Plus" a sideline or something.

Included under the article is another comment from Durham's Bob Vasile. We all remember him from his lacrosse-hating letters-to-the-editor on many occasions.


Athletes: Duke breached duty to fight charges

By Ray Gronberg : The Herald-Sun
Aug 30, 2008

DURHAM -- Lawyers for 38 members of Duke University's 2005-06 men's lacrosse team contend the school should have launched a public-relations campaign on the players' behalf to help them fight off stripper Crystal Mangum's false rape allegations.

The assertion showed up Thursday in new court papers filed as the players, Duke and city officials continue to argue about whether a federal judge should dismiss parts of the players' civil rights lawsuit.

Duke officials "possessed from the outset convincing evidence of the players' innocence and had a responsibility to speak out," the players' filing said. "But not only did they steadfastly remain silent, they also lent Duke's credibility to the rape allegations by repeatedly capitulating to the demands of an angry mob."

The school knew and should have publicized among other things the fact that Durham police were initially skeptical of Mangum's claims; that a medical exam of Mangum provided no corroboration for her claims; and that Mangum three times told doctors and nurses her supposed attackers had used condoms, the filing said.

The players also sharpened their attack on school President Richard Brodhead's decision to cancel the team's 2005-06 season and force then-coach Mike Pressler to resign.

The move amounted to a breach of contract because "many of the players were recruited to Duke specifically on the basis of Duke's promise that they would have the opportunity to play on a Division I varsity lacrosse team and compete for conference and national championships under Coach Pressler," the filing stated.

Lawyers for the players made it clear they want U.S. District Court Judge James Beaty Jr. to rule that the promises Duke makes in its student handbook and other documents are binding on the administration.

A different federal district judge -- who ruled in the case of would-be Duke football kicker Heather Sue Mercer that they aren't -- did so in error, they said.

Thursday's filing faulted Duke officials for not following the school's normal disciplinary procedures, for turning over to city police DukeCard records of team members' comings and goings in alleged violation of federal privacy laws, and for failing to enforce the school's anti-harassment polices after some professors and students began criticizing the players.

The suit is just one of four inspired by the lacrosse case. Pressler has sued Duke in state court. The other suits -- all filed by 2005-06 players -- are pending in federal court.

Beaty is hearing all three of the federal cases.

The one most nearly ready for a ruling is the first one filed, a claim against the city, former District Attorney Mike Nifong and a Burlington DNA lab filed by exonerated players David Evans, Collin Finnerty and Reade Seligmann.

4 comment(s) on this article.

Show me the money

Submitted by bobv on 08/30/2008 @ 07:34 AM

I bet the lawyers who filed this complaint will need transfusions - salvating so much thinking about all that cash they'll be spending when Duke settles out of court to hush it all up. I hope it goes to court again to show the true colors of the whole bunch of them!!

Bob Vasile, Durham

W. R. Chambers said...

Has anyone other than Broadhead accepted responsibility for anything?

Anonymous said...

I would think that the Duke BOT should be holding many meetings or conference calls to figure out what they are going to do once the judge rules (as he must) that discovery must proceed. The violation of Ferpa aside (which in and of itself should be reason for an administrative housecleaning) the failure of the university to follow its own procedures as outlined in its handbook on harassment is of grave concern. All univeristies and colleges that have any ethical backbone should be holding meetings with their faculties to insure that the behavior that characterized the Gang of 88 will never take place on their campuses. Professors and admininstrators have grave responsibilities to their students (and to the parents who are footing the expensive college bill)to insure student rights and safety. Current Duke parents are paying the costs of the failure of Brodhead and his minions to do just that as these cases work their way through the courts. While I feel for those parents who are footing the bill, I wonder why they could have been so cavalier in their decision to permit their offspring to study at an institution where there seems to be such a callous disregard of the principles that underlay our society.

Anonymous said...

Vasile sent me an email swearing that "something terrible" happened in that house.

Durham really is a cesspool, as the leaders and the "leading" citizens continue to spread lies. One wishes that at least one person in a position of power and influence in that city would tell the truth, but I guess that is expecting too much.

Debrah said...

Zane makes an excellent point by humorously giving more examples why there isn't much difference between the MSM and the Enquirer.

Anonymous said...

Even Brodhead and the BOT should realize by now that it's time to settle. All they are doing at this point is highlighting their errors of omission and commission.

river rat said...

This continued stonewalling and failure to acknowledge responsibility is infuriating..

The ONLY solution now is to punish Duke with massive financial consequences --- massive enough to rivet the attention of all University presidents and administrators on the cost of violating their fiduciary and common sense responsibilities..

skwilli said...

I hope a jury decides to award the players 51% of the Duke Endowment. I would feel better if they owned the University (and why not, Durham too!).

Anonymous said...

It would be interesting to see if any faculty members have recently been diciplined because of a violation of the faculty handbook.