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.