In general, perhaps the most surprising element of this filing came not from Judge Beaty but from Duke spokesperson Michael Schoenfeld, who commented that a ruling in which Pres. Brodhead, Tara Levicy, Dean Sue Wasiolek, and Duke Health would remain as defendants, and thus be subject to depositions and discovery, and in which Duke professors were condemned for having committed possibly liable acts, (and, for the record, in which a federal judge affirmed Duke's argument that its handbook and bulletin aren't legally binding on Duke, a finding that I doubt very much Duke shares with too many prospective parents) worked out "as we had hoped."
As I noted yesterday, the university did score a victory in the dismissal of claims against the most virulently anti-lacrosse member of the upper administration, Larry Moneta, who would have been a disaster for the university in any deposition.
Charles J. Cooper, representing the 39 unindicted Duke lacrosse players in their lawsuit against Duke University and others, issued the following statement: “We are heartened by the judge’s carefully considered decision permitting the lacrosse players’ primary claims to move forward. We will immediately begin taking discovery and preparing the case for trial.”
Beaty key passages below:
count 23—conspiracy & obstruction of justice—upheld against Duke, Duke Health, Levicy, Wilson, Gottlieb, Himan
Beaty dismisses the general Duke/Durham line of argument: “Defendants contend that Plaintiffs have not alleged facts to establish that Defendants’ alleged conduct actually obstructed, impeded, or hindered any aspect of the claim, but the Court concludes that Plaintiffs have alleged significant misconduct in the creation of false and misleading evidence and destruction or alteration of potential evidence, and further analysis of these issues would require consideration of factual issues more appropriately considered at summary judgment to determine if sufficient evidence is presented in support of the claim. Therefore, the Court concludes that Plaintiffs have stated a state tort claim for obstruction of justice at this stage.”
Beaty dismisses the claims against individual supervisors, on grounds that the guilty supervisor, if any, would be Duke & Duke Health, and the city of Durham.
count 21— U.S.C. § 1983 claim regarding the NTO requirement for DNA & blood samples, against various Duke & Durham employees—upheld against Gottlieb, Himan, and former SANE-nurse-in-training Tara Levicy
Beaty concludes that the “Plaintiffs have raised substantial questions regarding the constitutionality of the searches and seizures effected pursuant to the NTO in this case, both as to the procedure that was followed and the scope of the NTO that was entered.”
Beaty notes that both U.S. and North Carolina law are inconsistent on exactly what 4th amendment protections apply in a circumstance such as this, but in any event, the claim can go forward, since “Defendants raise extensive factual contentions to dispute these allegations and to demonstrate that probable cause existed even if the allegedly false statements are removed and the material omissions are included. This analysis by Defendants includes extensive parsing of pieces of the Amended Complaint, and attempts by the various Defendants to blame one another. “ Such matters, he notes, can’t be decided at a motion to dismiss.
He also rejects the city’s claim that such an issue never could rise to the level of a constitutional violation: “the Court concludes that there is no question that these rights were clearly established, and no reasonable official could have believed that it was permissible to deliberately or recklessly create false or misleading evidence to present to a magistrate to effect a citizen’s seizure.”
count 19—negligent supervision—upheld against Duke (but not individual Duke defendants)
And on this count, the Group of 88 and other extremist professors’ behavior could cost Duke: “In Count 19, Plaintiffs bring claims against Duke . . . for Negligent Supervision of Duke professors and employees. As the basis for this claim, Plaintiffs contend that employees of Duke committed tortious acts of fraud, intentional and negligent infliction of emotional distress, harassment, nuisance, intrusion upon seclusion, defamation, and other torts against Plaintiffs, and that Duke . . . knew of the ongoing tortious conduct and “took no action to stop, prevent, or sanction them, but rather condoned, approved, and ratified the incidents of tortious conduct.’”
count 18—intrusion upon seclusion, against Duke and various administrators, dismissed
Beaty argues that the administrators themselves committed no specific wrongful acts under this count. But he adds in a tempting line: “Although the Amended Complaint alleges conduct by faculty members that is certainly questionable, those allegations do not state a claim against Duke or any of the named Defendants for intrusion upon seclusion.” [emphasis added]
Doubtless the Group of 88 is breathing a sigh of relief upon reading this line.
count 15/16—breach of contract—dismissed
This was by far the most disappointing element of any aspect of the Beaty rulings. Relying on precedents involving very different—and much, much narrower—types of issues (the Love and Giuliani suits against Duke), Beaty held, “courts in this district have repeatedly concluded that a university’s academic bulletins and policies cannot be the basis of a breach of contract claim unless the bulletin or policy provision is a specific, enforceable promise that is incorporated into the terms of a contract between the university and the student.”
Beaty continues that despite the wording of the bulletin, there is no “indication of any intent by Duke to be bound to any particular obligation or course of conduct based on this general policy language.”
In effect, under this ruling, student bulletins and faculty handbooks in the 4th Circuit are worth nothing more than scraps of paper, and the university has no legal obligation to hold itself to their provisions. (It would be difficult to imagine a more transparent, major breach of the bulletin than what was alleged in this case.) Other circuits, I should note, do not have such a standard.
count 11—fraud—based on Brodhead and Trask assuring the players that anything told to them would remain confidential, when they knew otherwise; and Dean Sue Wasiolek, for urging the players not to tell their parents or retain counsel; upheld
Beaty suggests that this is normally an almost impossible bar to meet when dealing with a university’s relationship with students. But the facts of this case manage to surpass the bar. Why? “While an administrator is not ordinarily in a fiduciary or confidential relationship with the students, an administrator who is a lawyer [Dean Sue], who discusses pending criminal charges with her students, who affirmatively cuts them off from other advice by telling them not to seek legal advice and not to tell their parents, and who then directs them to the institution’s attorney in an effort to protect the institution at the students’ expense, could plausibly be liable for constructive fraud under state law.”
He continues, “Similarly with respect to Vice President Trask, although a fiduciary relationship would not ordinarily exist between the players and Trask, Plaintiffs allege that Trask created a confidential relationship by assuring the co-captains that they could confide in him even against the advice of their attorneys, based on the existence of what Trask allegedly called a “student-administrator privilege,” which Plaintiffs contend Trask subsequently breached for Duke’s benefit. Likewise as to President Brodhead, although no fiduciary relationship ordinarily would exist, Plaintiffs allege that Brodhead explicitly assured the co-captains of confidentiality and urged them to trust him and to issue an apology, but that Brodhead did so only for Duke’s benefit and at the expense of the co-captains.”
Count 1/2/6/7—emotional distress—dismissed, for same reasons noted in Evans case below.
Counts 4/5—Medical negligence—dismissed, on grounds that Tara Levicy owed not the plaintiffs but only false accuser Mangum quality care. This appears to be a correct reading of North Carolina law, but is a frightening finding.
Count 3—Neligent supervision—partly upheld: “The Court will not dismiss the claim asserted in Count 3 for negligent supervision with respect to Duke and Duke Health, to the extent that other underlying claims are proceeding in this case as to Levicy.” Beaty notes, however, that the law doesn’t allow such a claim against Levicy’s individual supervisors.
Count 8—fraud—related to Duke’s giving the DPD access to the lacrosse players’ key card info in March 2006, without a warrant, and in apparent violation of FERPA; and then lied about it when Nifong subsequently requested a court order for the information, which Judge Titus denied—upheld
“To the extent that this claim is based on a fraudulent omission, Plaintiffs have identified the general content of the information that was withheld and the reason for its materiality, and the identity of those who failed to make such disclosures. Plaintiffs have also alleged the relationship and events giving rise to the duty to speak, based on the actions of Drummond and Hendricks in undertaking to send the letters.”
Beaty dismisses the claim of fraud against Durham, suggesting that the guilty party, if any, was Duke; and that the plaintiffs will have to prove who at Duke knew of the March 2006 decision to provide the keycard information to the DPD. The university seems extremely vulnerable here; it has yet to offer any remotely convincing explanation for its behavior.