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.

Duke Again Dismisses Due Process

Last Wednesday’s Duke Chronicle published a lengthy item on Duke’s sexual assault procedures. Though framed as highly sympathetic to accusers (the article contains no quotes from accused students, defense attorneys, or civil libertarians), the major takeaway from reporter Julian Spector’s piece is that colleges in general (and Duke, of all places, in particular) have no business adjudicating sexual assault cases.

The Chronicle article explores the treatment of two sexual assault accusers. There are four takeaway items:

(1) Duke uses secret training material for those who adjudicate campus sexual assault cases. This is perhaps the most troubling item to appear from Spector’s report. The use of specialized training material for panels hearing sexual assault claims (and only for such claims) moves the process an additional step away from the accused student being judged from a jury of his peers. More problematic, the one school’s secret training material to be made public (Stanford’s) suggests that such items dramatically increase the chances of a guilty finding. Stanford’s specialized training, for instance, suggested that defendants who presented their case in a logical fashion were more likely to be rapists.

(2) Duke administrators appear unwilling or disinterested in encouraging alleged victims to report violent crime on campus to police, or even to encourage accusers to have medical exams. Spector describes the experiences of two campus accusers, “Jean” and “Christine.” Both met with Duke administrators to allege sexual assault; in Spector’s reporting, at least, neither was encouraged to report the assault to police. It’s hard to imagine any other violent crime, or any serious crime at all, in which campus officials would not encourage victimized students to go to trained law enforcement.

Nor does Duke appear much interested in encouraging any type of formal investigative process, including medical exams. Yet a SANE report includes a near-contemporaneous account by the accuser, and can provide other types of corroboration for a real victim of crime. Duke’s dismissal of SANE exams is particularly odd given that elsewhere in the article, Duke administrators suggest a key problem is determining consent in cases involving drunken students, and, according to one administrator, “These cases are strengthened by if there’s somebody else . . . or if there’s some documentation.” Accusers who immediately went for a SANE exam presumably would have a blood test to determine their alcohol level, giving Duke adjudicators something tangible to evaluate, rather than basing their ultimate decision on subjective standards.

(3) The preponderance-of-evidence threshold encourages a guessing game. A finding of culpability for sexual assault has a life-changing impact for the convicted student: even if Duke doesn’t expel him, the notice goes on his transcript, and likely would foreclose future careers in any profession that requires a background check. For students who actually committed a rape, of course, such a punishment is nowhere near sufficient. 

But there’s nothing in the Spector piece that suggests Duke’s process can successfully weed out false claims from true ones; indeed, much of Duke’s focus seems to be less due process than protecting the feelings of the accuser. Here’s Gender Violence Intervention Services Coordinator Sheila Broderick describing the process: “Nobody gets slut-shamed in that room, nobody gets disrespectfully spoken to—the conduct panel members are exceedingly pleasant.” Indeed, Broderick hinted to Spector that she accepts accusations as the truth, since even “if they [the Duke disciplinary panel] say he’s not responsible—you and I know that he’s responsible, and that’s at the end of the day what really matters.”

(4) Duke’s administrative process is one-sided. Duke administrator Stephen Bryan conceded the obvious: “There’s not one central body that works with students who are accused. We have disciplinary advisers who are trained by our office to offer support and guidance, but it’s not like the Women’s Center setup where most students go through them coming forward.”

Duke has a world-class law school. Is there any excuse for this oversight?

Updates

A couple of notes:

(1) For those interested, I have a long piece at Minding the Campus examining the overall decline of due process involving campus allegations of sexual assault—and asking why colleges are so reluctant to treat rape what it is: a crime. In short, a combination of pressure from the Office for Civil Rights, a general indifference to due process by some administrators, and an aggressive attempt by campus ideologues to introduce a system that makes rape convictions easier explain the development.

(Update: I also have a shorter MTC piece on poor coverage of procedure in the media, including some Group of 88-like tweets from a Journalism professor.)

(2) An interesting item a few weeks ago from the Supreme Court. The Court declined to hear the appeal of a case called Martin v. Blessing, where the issues included what Justice Alito termed the “highly unusual” practice of a New York district court judge, Harold Baer, of setting racial and gender quotas for attorneys in class action cases. (Baer, it seems, would fit right in with the Group of 88.) The Court chose not to hear the appeal, but Alito penned an interesting opinion strongly condemning Baer’s practice, what Scotusblog’s Tom Goldstein described as “a warning shot that some anomalous practices should be stopped without the Court ever having to get involved.”

Alito’s opinion was interesting for one other reason. The justice commented that, to the best of his knowledge, Baer was the only federal judge who demanded that law firms in class action cases before his court employ racial and gender quotas in “The uniqueness of this practice,” Alito wrote, “weighs against review by this Court, but the meaning of the Court’s denial of the petition should not be misunderstood.”

We’ll likely never know why the Supreme Court declined to hear the appeal of the 4^th Circuit’s ruling to let Durham off the hook in the lacrosse civil suit. But it’s worth noting that Alito’s observation would seem to apply to the facts of the lacrosse case as well—it’s extremely rare, almost unprecedented, in recent years to have a prosecutor usurp control of a police investigation (with the cooperation of police higher-ups) and then manufacture evidence to obtain indictments, which were critical for his short-term political goals. Perhaps the Court simply concluded that since we weren’t likely to see a Mike Nifong again anytime soon, the “uniqueness” of the lacrosse case’s facts weighed against review.

That said, the denial left in place the deeply flawed 4^th Circuit ruling, holding that at least in the circuit, no federal civil rights violation occurs when a prosecutor conspires with police to frame innocent people, provided that the police are candid in discussions with the prosecutor that no real inculpatory evidence exists—and the prosecutor obtains a grand jury indictment, even if the police mislead the grand jury about the nature of the evidence.

[Update, Fri., 9.47am: Those wishing a chuckle can examine the ravings of pro-Nifong crank Sidney Harr (whose Justice for Nifong committee roster includes convicted murderer Crystal Mangum). Harr and the Duke attorneys can battle it out between them.]

Hat tip: J.R.

An Update from St. Joe's

Over at Minding the Campus, I’ve analyzed two federal lawsuits filed by male students found culpable of sexual assault after college procedures (at St. Joe’s and Vassar) that failed to provide much, if any, due process. Today is the deadline for the defendants in the first suit, filed by Brian Harris against St. Joe’s and his accuser, Lindsay Horst. Horst’s attorney, Daniel Rucket, filed a reply yesterday urging dismissal of all claims in Harris’ lawsuit. (You can read the filing here; I’ll be analyzing the St. Joe’s reply when it comes in, at Minding the Campus.)

Rucket does not deny that Harris’ complaint accurately described the (wildly tilted) judicial “process” that St. Joe’s employs, which is “based on guidance from the United States Department of Education, Office for Civil Rights (‘OCR’).” (This guidance, of course, came from the 2011 “Dear Colleague” letter, which asserted that federal law requires universities to change their procedures in various ways to make it easier to find students culpable of committing sexual assault.) Rucket concedes that St. Joe’s policies prohibited Harris, like all accused students, from having an attorney represent him at the disciplinary hearing, or attend the hearing in any way. And Rucket observes that, as Harris’ complaint noted, St. Joe’s has structured a procedure in which“[c]ivil or criminal rules of procedure and evidence do not apply,” while allowing the school to consider hearsay.

But according to Rucket’s filing, these are all unobjectionable things, beyond the scope of the federal courts to review. It’s quite remarkable to see a private lawyer—much less a “Pennsylvania Super Lawyer,” as Rucket’s website notes he has been every year since 2010—celebrating the fairness of a process in which the accused is denied the right to counsel.

Intriguingly, seeking to protect Horst against a claim of defamation, Rucket subsequently claims that in Pennsylvania “quasi-judicial proceedings . . . include school administrative hearings and statements made that lead to such hearings.” In other words: the St. Joe’s disciplinary tribunal should be viewed as “quasi-judicial,” even though it denies accused students the right to counsel, doesn’t guarantee them the right to cross-examine their accuser, doesn’t follow civil or criminal rules or procedure, and allows hearsay.

Rucket argues that Harris has no legal claim to challenge the judgments made by St. Joe’s, no matter how unfair the university’s procedures. “Harris is attempting improperly to relitigate the finding of the [St. Joe’s tribunal] that Harris sexually assaulted Jane Doe, in Federal Court, which is not allowed.” Why? In part, because “there is a presumption of fairness in administrative proceedings which favors administrators.” Moreover, according to Rucket, federal courts should respect an assertion in the St. Joe’s handbook that “[s]ubsequent reviewers shall not determine anew whether there was a Community Standards violation.” How convenient as a way to shield any university from challenges to potentially unconstitutional behavior.

This line of argument, if upheld by the court, would render beyond judicial review the assault on due process for all college students accused of sexual assault, and Rucket asserts as much. At least with regard to students at private colleges, he claims that as “Harris’ guilt for the sexual assault has therefore been conclusively and finally decided by SJU at the [disciplinary] hearing,” a federal jury “cannot reconsider or alter that decision.” The power this line of interpretation gives to college disciplinary processes is extraordinary: once a private college brands a student a rapist, no matter how unfair the process the college utilizes, the student can never challenge the finding, as long as the college followed whatever unfair procedures it utilizes in sexual assault cases.

Absurdly, Rucket claims that the power he gives to the St. Joe’s process to avoid court challenge is equal opportunity: If, he notes, St. Joe’s had found that Horst hadn’t been sexually assaulted, and she had then filed a “lawsuit against Harris and SJU, Harris certainly would be making this exact same argument, that the findings of the [disciplinary tribunal] cannot be relitigated.” First: this claim will certainly come as news to the anti-due process “activists” glowingly profiled in the New York Times and Inside Higher Ed’s Allie Grasgreen, who have urged federal intervention to effectively relitigate a variety of campus decisions they opposed. Second: as Rucket well knows, even if Harris had been cleared by St. Joe’s, Horst still could have filed a criminal complaint with the police. Harris then could have been tried and, if convicted, sued.

In any event, the filing notes, even without the specific wording in the St. Joe’s handbook, Harris would have no case. Before choosing to attend St. Joe’s, Harris knew (or should have known) the university’s procedures for handling sexual assaults. Courts, Rucket suggests, can’t now intervene. (Oddly, the only two cases that Rucket cites to bolster his point come from Pennsylvania state courts; he doesn’t explain why these decisions should be treated as precedential in a federal lawsuit.) If Harris didn’t want to subject himself to the anti-due process approach used in his case, he shouldn’t have matriculated at St. Joe’s. But given that the “Dear Colleague” letter applies to virtually every university in the country, under Rucket’s viewpoint, the only realistic choice for a male student who wants to ensure that he has due process if accused of sexual assault would be not to attend college at all.

Finally, Rucket challenges Harris’ claim that he lacked an opportunity to cross-examine Horst, but, in any case, deems the matter irrelevant—in part because St. Joe’s doesn’t promise such a right and in part because the “Dear Colleague” letter “strongly” discourages granting such a right. To the best of my knowledge, this is the first time perhaps the most objectionable aspect of the “Dear Colleague” letter—its urging schools to set up procedures that deny an accused student the right to confront his accuser—has been cited, positively, in a legal filing.

Beyond legal arguments, the filing also provides Horst’s version of the evening in question, in which she alleges that she was assaulted while incapacitated. Rucket’s writings, however, corroborate several points from Harris’ filing, chiefly that:

• Horst asked Harris to come to her dorm room and spend the night;
• After the alleged assault (which Harris maintains was consensual intercourse), Horst left her room to go to the bathroom, but then returned to her room voluntarily, where she and Harris then spent the night;
• Horst did not seek a medical examination after the incident;
• Horst did not report the incident to police.

The filing describes Horst as “obviously intoxicated” on the evening in question. But since she didn’t go to the police or seek a medical exam, there’s no way to verify this claim.

Rucket does challenge the version of events presented in Harris’ complaint in one significant way. While he concedes that Horst invited Harris to come to her room for “cuddling” and to spend the night, according to the filing, this invitation had no sexual connotation.

Two final notes: (1) This is not the lacrosse case, in which overwhelming and unimpeachable evidence of actual innocence existed. Instead, the Harris case is an excellent demonstration of how due process-unfriendly college procedures—coupled with the newly-mandated preponderance-of-evidence (50.01%) standard—all but ensure that college structures can’t discover the truth in close or even somewhat close cases. And in a campus environment that’s overwhelmingly favorable ideologically to accusers, this is a dangerous thing.

(2) In his brief, Rucket asserts that Harris “was found guilty of (1) sexual assault.” [emphasis in original] Technically, colleges and universities can’t find anyone “guilty of sexual assault”: only the criminal justice process can do so. But in the real world, that’s a distinction that’s easily elided, since the stigma of being branded a rapist comes just as easily from a college process as from a jury verdict. That Horst’s own attorney—in a legal filing, no less—conflates the result of the St. Joe’s disciplinary process with that of a criminal trial illustrates why universities, when they consider issues that also qualify as criminal matters, need to provide due process to accused students. And if federal courts are the only mechanism for forcing universities to do so, then so be it.

Litigation Issues

As a reader of TheShadow University shortly after it was published, I understood well the due process difficulties in campus judicial systems. But until the lacrosse case, I simply assumed that because sexual assault is a crime, such matters were handled by police, not by a campus judiciary. In any event, how campuses handled sexual assault complaints couldn’t be more troubling than the manner in which they handled other allegations.

That, obviously, isn’t the case. One of the most troubling counterfactuals of the lacrosse case is to wonder what might have occurred if Crystal Mangum had simultaneously filed a complaint through the Duke campus judicial process. If—and it’s not entirely clear—she had standing to have done so, there’s little doubt that a finding of guilty would have occurred. Procedurally, the accused students would have lacked the right to attorneys, been unable to access the critical DNA evidence, and would have faced severe evidentiary and time restrictions in presenting their case. Ideologically, the accused students would have been operating in an environment heavily influenced by the Group of 88 and their race/class/gender agenda. For a less explosive example, consider the case of Caleb Warner, a former University of North Dakota student whose school found him guilty of sexual assault—even as the local police filed charges against his accuser for filing a false police report.

(As an aside, note that the police saying the accuser was lying wasn’t enough for the AP to identify the accuser, since “AP’s policy is not to identify alleged sexual assault victims,” even those the police have formally concluded made a false allegation.)

The basic unfairness of campus sexual assault procedures was intensified by the 2011 “Dear Colleague” letter, about which I’ve written extensively at Minding the Campus, which dramatically lowered the burden of proof in campus sexual assault cases.

In the last two months, however, two students convicted under their school’s wildly biased procedures filed suits in federal court. One lawsuit targeted Vassar College, which handles sexual assault claims through an “Interpersonal Violence Panel” whose procedures the college refuses to make publicly available. The second suit targeted St. Joseph’s University, after a process that appeared to ignore exculpatory text messages sent from the accuser to the student she accused. You can read my Vassar post here, and my St. Joe’s post here.

In the aftermath of the “Dear Colleague” letter, and with administrators responsive to their school’s version of the Group of 88, it’s all but inconceivable to imagine many, or any, residential colleges restoring due process on their own. In the end, only intervention by federal courts—as occurred a generation ago with speech codes—will bring a measure of due process to how campuses handle allegations of sexual assaults.

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Former NCCU chancellor Julius Chambers recently passed away. The most comprehensive obituary came in the Charlotte Observer, which recounted his myriad contributions to the causes of civil rights and due process over the course of his career.

Obituaries, obviously, tend to stress the positive in a career, and it’s hard to find any positive in Chambers’ conduct in the lacrosse case, where he teamed with William Bowen to pen a whitewash report that supposedly represented a critical analysis of how the administration responded to the case. Yet the report didn’t even address the issues that ultimately would cost Duke millions of dollars in legal fees and settlements, largely because Bowen and Chambers operated under an ill-concealed assumptions that the rape allegations were likely true. The Observer didn’t reference Chambers’ conduct in the lacrosse case, which contradicted his career-long support for civil rights and due process.

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The Supreme Court has requested a formal response from Durham to the longshot appeal in the McFadyen case. While this move means the appeal hasn’t been  rejected out of hand, the question doesn’t seem to be the type that’s likely to generate interest from the Court.