Monday, June 02, 2014

More on McLeod

[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 the McLeod 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 reveals 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 (“WHAT IF 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 website), thanks to funding from a Duke “scholarship program specifically targets exemplary students of African descent.”

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 any procedural error would affect the outcome.

[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.


A Duke Dad said...

"Show me the man, and I’ll show you the crime."

- - - Lavrentiy Beria, head of Joseph Stalin’s secret police

Anonymous said...

Here's a link to the Jacob Gershman post at the WSJ Law Blog: "Judge Blocks Expulsion of Duke Student Accused of Sexual Misconduct."

Anonymous said...

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."

William L. Anderson said...

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.

Anonymous said...

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.
Big Al

Anonymous said...

If half of what's been described actually happened, Mr. mcLeod is a scumbag who deserved to be expelled.

Jim In San Diego said...

@ Allison:

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:

Jim Peterson

Anonymous said...

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?


Allison Strange said...

I have emailed you.
Looking forward to continued conversation.


John Pack Lambert said...

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.