Litigation Issues

Three litigation matters that have tangential relationships to the blog’s themes.

First, this morning’s New York Times reports that Yale (undisclosed amount) and New Haven ($200,000) have reached a settlement with James Van de Velde, a former Yale lecturer falsely accused of murdering a Yale student named Suzanne Jovin, whose thesis Van de Velde had supervised. Both New Haven and Yale denied any wrongdoing, though it’s safe to assume that they didn’t fork over six-figure amounts out of the goodness of their hearts.

In 1998, Van de Velde was a popular lecturer, but after the allegations was transformed—as the Times notes today—into a “pariah.” Even though he was never charged with any crime, he was removed from the classroom by then-Yale dean Richard Brodhead. Justifying his decision in a 1999 interview with New York Times Magazine, Brodhead remarked, “The presumption of innocence is not a trivial thing.”

Indeed.

Brodhead demonstrated his commitment to the presumption of innocence not merely by removing Van de Velde from the classroom, but by informing him that any letter from Yale would have to mention “the intervening controversy.”

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Second, as part of its (mercifully unsuccessful) crusade to weaken the First Amendment protections of all newsgatherers in Maine by forcing me to turn over confidential, unpublished exchanges with sources, Duke sought to neuter a First Circuit case called Cusumano v. Microsoft. The ruling provides substantial protections—along the lines afforded to journalists—for professors in the First Circuit.

Acting at the behest of treaty-related demands from Britain, a U.S. government filing against Boston College threatened to do what Duke could not—undermine Cusumano. The case, which involved oral histories of former IRA members, began when the professors who conducted the oral histories did not retain possession of them (such a move isn’t necessarily uncommon), and instead deposited them in the Boston College library. But initially BC (unlike my experience in the Duke case, or most journalists who receive such subpoenas) didn’t resist a government subpoena to other oral histories in the collection, which complicated the case. A district court ordered BC to turn over 85 of the oral histories to the British government.

On Monday, the First Circuit ruled that the district court “abused its discretion in ordering the production of a significant number of interviews that only contain information that is in fact irrelevant to the subject matter of the subpoena.” It substantially narrowed the scope of the subpoena (to 11 oral histories), and made clear that Cusumano remained good law in the circuit.

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Finally, last week came the latest in the Paterno family’s effort to restore the tarnished reputation of the late Penn State football coach. The family, along with some family-aligned trustees and former football players, filed suit against the NCAA. As Yahoo’s Dan Wetzel perceptively observed, although the NCAA is the named defendant in the lawsuit, a better title would be “Paterno v. Penn State,” since the suit appears to flow from the Paterno family’s rage that the current Penn State administration launched the Freeh Report and then accepted the report’s findings.

The suit itself offers no new information, contending instead (as the family and its representatives have before) that the university should have adopted wildly counterintuitive interpretations of the evidence that Freeh recovered, or that the NCAA’s decision to accept the university’s investigation rather than to conduct its own inquiry violated the late Paterno’s due process.

From an academic standpoint, however, the lawsuit’s most interesting item is that four Penn State professors—Associate professor of hospitality management Peter Bordi, Professor of geosciences Terry Engelder, Professor of education Spencer Niles, and Assistant professor of hospitality management John O’Donnell—signed on as plaintiffs.

Federal courts have strict rules regarding standing. In cases such as the Paterno lawsuit, plaintiffs must be able to demonstrate some sort of injury that the courts can redress.

The lawsuit itself makes two such standing claims. First, that “the Consent Decree [between the NCAA and Penn State] has interfered with the administration of Penn State, and limited the faculty’s ability to attract and retain high-caliber faculty, administrators, staff, and students, which has reduced the value of the faculty’s own positions and their ability to compete within their fields.” I’m sure everyone is eager to hear how NCAA sanctions against the football program have prevented the school from attracting “high-caliber” professors of hospitality management.

Second, that “the imposed Consent Decree is an indictment of the entire Penn State community, including individual institutional leaders, members of the Board of Trustees, those responsible for and participants in athletic programs, the faculty, and the student body. The Consent Decree charges that every level of the Penn State community created and maintained a culture of reverence for, fear of, and deference to the football program.”

I’d say the participation of Professors Bordi, Engelder, Niles, and O’Donnell in this lawsuit provides a pretty good sign of how at least the academic “level of the Penn State community created and maintained a culture of reverence for, fear of, and deference to the football program.”