[Update, Monday at 11.15am: in the WSJ Law Blog, Jacob Gershman has an excellent summary of the case, including a revealing comment from the Duke spokesperson.]
Last year, James Taranto published
a sensational piece
on a kangaroo court at Auburn; I praised
it at Minding the Campus
. Taranto’s effectiveness came in his ability to
bring observers inside a badly flawed sexual assault process.
The Liestoppers board has posted many of the documents from
lawsuit against Duke
. In a different way than occurred with Taranto’s
article, they help bring us inside Duke’s curious processes and seemingly ever-shifting
standards. Some discussion below, and I will also have some more to come at MTC.
Duke made two arguments against the McLeod lawsuit. The first,
which Judge Smith at least at this stage rejected, was that Duke had no
legal obligation to follow its own standards
, and therefore the expulsion
should stand. (More on this below.) The second, on which Judge Smith has deferred,
was that McLeod had no right to a Duke degree, since McLeod “failed to meet the
standard of conduct required of members of the Duke community.”
Duke further added that awarding McLeod a degree would “hinder
Duke’s ability to act out its values.” And in testimony before Judge Smith,
Dean Sue Wasiolek affirmed
that a Duke degree suggests that a student is “of high character.” McLeod’s
attorneys correctly countered that “rather than Duke’s ‘honor’ being at stake,
the only ‘injury’ is that a small number of Duke administrators would be angry
or offended” by the court acting.
The assertions by Duke and Wasiolek are baffling, for three
reasons. First, it’s true that some schools, usually affiliated with the
religious right (e.g., Liberty, BYU, Baylor) have student character clauses. But
it’s inconceivable for any elite institution to claim that each and every one
of its graduates is of “high character,” since such a policy basically means
that students have no academic freedom at all.
Second, even if Duke had such a standard, it has never
before applied it to sexual assault. The filing for McLeod’s attorneys
that “Dean Sue Wasiolek testified that up until Mr. McLeod’s case, no Duke
student had ever been expelled for sexual misconduct.” If true, does that mean
that until 2013, Duke believed that students who committed sexual misconduct
were of high character? Or does it mean that Duke has no such degree standard?
Finally, assume for the sake of argument that Duke had such
a standard and has applied it for some time. By what grounds could the
university have concluded that Chauncey Nartey fit this amorphous
good-character requirement? Nartey was the Duke student who sent a
menacing e-mail to the Presslers
JANET LYNN WERE NEXT???”
) referencing their daughter’s name as possibly “next”—at
the height of the media and faculty frenzy against the lacrosse team. Later on
in his Duke career, the fraternity
of which Nartey was president was suspended
for inappropriate behavior.
If, as Wasiolek claims, Duke has a “high character” standard
for a degree, it’s hard to imagine how the author of such an e-mail could have
passed the test. Yet not only did Nartey receive his degree, he did so with a
full scholarship (at least according to his
), thanks to funding
from a Duke “scholarship program specifically targets exemplary students of
The McLeod filings also indicated another intriguing linkage
to the lacrosse case. Even a figure as biased as author William D. Cohan
conceded that a member of the Duke administration shouldn’t have counseled the
lacrosse captains not to tell their parents about the investigation—silence that
delayed the hiring of attorneys by around a week. Cohan suggests that this move
played a role in Duke’s decision to settle with the falsely accused players.
And yet the university didn’t seem to learn any lesson. McLeod
claims that Dean Stephen Bryan told him (according to the filing) “that an attorney
would not be useful or necessary in the disciplinary matter.” The advice could
not have been more unhelpful. The filing makes clear that McLeod’s non-attorney
“advocate,” while well-intentioned, was of little or no assistance. He only met
with McLeod twice (and one of those times only briefly), provided routine and
perhaps even counterproductive feedback on drafts of McLeod’s statements to the
tribunal; and had never served as an advocate for a student who would face
expulsion if found guilty. Nor, it appears, had the advocate received any
special training in how to determine intoxication levels for accusers—the key
issue at play in the case.
Finally, the McLeod filings return to an old standby for
Duke—the university’s assertion that while it can use the student bulletin to
enforce punishment against students, the school has no legal obligation to be
bound by the bulletin’s provisions. Going even further than they did in the
lacrosse case, Duke’s attorneys refer
to the bulletin
as an almost ephemeral document, one “based on an
aspirational “statement of principles.”
They’ll only go so far to say that Duke
has an “intention
to administer” [emphasis
added] its disciplinary process as outlined in the guide (explaining,
perhaps, why it was OK to change the punishment protocol without adding it to
the guide). At most, according to Duke, the guide provides “a hearing free from
procedural errors that substantially affect the fairness of the hearing.” But
in in a hearing based on a preponderance-of-evidence (50.01 percent) threshold virtually
procedural error would affect the
[I should note that while Duke, both here and in its lacrosse-case filings, dismisses any legal obligation for the university to uphold the terms of the student bulletin or faculty handbook, it never has taken that position in admissions office publications or in communications with prospective students or parents on its website. It’s almost as if the university doesn’t want the people who will be spending more than $200,000 over four years to have access to this information.]
As to what constitutes “due process” at Duke, the university
suggests that McLeod was entitled to five elements: (1) receiving the material
to be used against him five days before the hearing; (2) right to witnesses;
(3) ability to present questions to the disciplinary panel, which the panel
might (or might not) then present to the accuser and other witnesses; (4) an
opportunity to give opening and closing statements; (5) an opportunity to
present written character statements from other people. How ensuring a student
of sexual assault these five items means that the student gets anything
approximating a fair process Duke doesn’t say.
No wonder Judge Smith issued a preliminary injunction.
"Show me the man, and I’ll show you the crime."
- - - Lavrentiy Beria, head of Joseph Stalin’s secret police
Here's a link to the Jacob Gershman post at the WSJ Law Blog: "Judge Blocks Expulsion of Duke Student Accused of Sexual Misconduct."
GWU law school professor Jonathan Turley has a superb post "Federal Judge Stops Expulsion Of Duke Student Over Lack of Basic Due Process In Alleged Sexual Assault Case."
Here's the lede: "I have previously written about my concerns over the elimination of basic rights of due process at universities for students accused of sexual assault or harassment under pressure from the Obama Administration."
I know the person who made the final recommendation in the case for which Frostburg State University now is "under investigation" by the Obama administration. He is a very fair-minded and sober person and is well-respected on the FSU faculty.
While I know nothing about the particulars of the 2013 case that now is being reviewed, nonetheless, my sense is that the government is telling our university in no uncertain terms that fair, meticulous, and looking for the truth are not acceptable, not if the university wishes to continue to receive federal money.
Once the leaders of a government declare openly that truth is not an option -- and the enforce their "non-truth" standards with an iron fist -- then it is fair to say that such a society has passed a "tipping point." We are on the other side, and things will continue to deteriorate.
It is ironic. The generation that promoted the Sexual Revolution, open use of drugs, and free speech, now gives us kangaroo court "sexual assault" cases, promotes a vicious drug war, creates campus speech codes (and actively tries to criminalize free speech), and enforces everything with SWAT teams that are not afraid to gun down innocents, even without provocation. I truly believe this is what people like Billy Ayers and Tom Hayden wanted our society to become, and they have been wildly successful.
I agree with William L. Anderson. The fact that a comparative unknown can be elected president was the clue that the reactionaries had taken over this country.
If half of what's been described actually happened, Mr. mcLeod is a scumbag who deserved to be expelled.
If you are still following this thread:
I have an extensive set of suggestions as how to pursue expensive legal action on the cheap, where the facts are already developed, and the issue affects many others.
This is based on my experience as an attorney.
If you wish, please send me a contact email. My email is: firstname.lastname@example.org
Re what anonymous wrote above: A "scumbag" on the basis of what has been described? Is everything that gets said about adversaries true? Is everyone who makes charges that impugn reputations truthful? Or do you just have a good feeling that these charges must be warranted? The guy must be guilty as charged because...why? College students who get charged with rape don't deserve due process, right? Because they must be scumbags or they wouldn't find themselves in the situation they are in?
I have emailed you.
Looking forward to continued conversation.
To say that BYU is affiliated with the religious right is too simplistic of an approach. In general, BYU faculty who run for political office over the last decade have run as Democrats. BYU does not as an institution engage in political activism most of the time, and its approach to many issues do not at all conform with what is generally called "the religious right."
It has a strong connection to a religious body, but even classing The Church of Jesus Christ of Latter-day Saints as "conservative" is a complex decision that does not work fully in the political reality of the times.
A much better wording would be "strong religious affiliation and values". BYU is clearly not affiliated with the "religious right" as the term is generally used in political discourse. Most of the religious right will actively distance themselves from any association to BYU.
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