Duke, Grossly Unfair Again, Is Back in Court

Few universities are less well-suited to adjudicate sexual assault cases than Duke. The university’s president and judicial affairs staff remains the same as 2006-2007, when their egregious mishandling of events in the lacrosse case resulted in an approximately $6.7 million legal settlement with each of the three falsely accused players. The hostility to due process in the campus environment was best seen in the activities of the Group of 88, who proudly affirmed that something “happened” to false accuser Crystal Mangum based solely on the word of Mangum and rogue prosecutor Mike Nifong.

Nor has Duke’s internal campus process inspired any more confidence. Shortly after the lacrosse case, Duke revised its campus disciplinary rules to hold that a rape could occur even after seemingly consensual intercourse, because of unintentional, perceived power differentials between the parties. (That is: if a senior basketball player ever had consensual sex with a freshman non-athlete, he could be convicted of rape, given their perceived power differentials.) Amidst strong criticism from FIRE and others, the university quietly dropped the new definition after a year, but didn’t reconsider the assumptions that could have led the school to have adopted such a rule in the first place. And to start the 2013-4 academic year, under pressure from “activists,” Duke changed its policy again, to have a presumption of expulsion when the school (under very due process-unfriendly procedures) deems a student culpable of sexual misconduct.

That policy change has now led to Duke facing a new lawsuit, filed by a male student expelled on what seems like questionable grounds. (The student was expelled three days before taking his final exams in his final semester.) Indeed, this seems to be precisely the sort of case to which due process skeptic Brett Sokolow had referred when he noted that colleges are increasingly branding students rapists on the basis of incomplete or non-existent evidence.

Last November, the Duke student, Lewis McLeod, claims that he had a drunken hook-up with a first-year female student. The only issue in the case is consent: the accuser sought medical attention, but the report didn’t indicate any use of force. And the Durham Independent reports that while the accuser went to the police, Durham Police declined to pursue charges.

Using the preponderance of evidence standard, a three-person Duke tribunal (whose sole undergraduate hardly seemed ideologically neutral, given that she had conducted research in gender violence) deemed McLeod a rapist on the grounds that the accuser “had reached an incapacitating level of intoxication that rendered her unable to give consent to sex.” According to McLeod’s lawsuit, a significant factor in the panel’s findings of incapacitation came from the written testimony of an anonymous witness, who McLeod was not only unable to confront in the Duke proceedings (in which he couldn’t have a lawyer) but whose identity he doesn’t even know.

One rationalization for those who defend the OCR’s crusade against due process is that students deemed rapists by their colleges don’t really suffer that much—after all, they don’t go to jail, and no one is legally entitled to a college education. This is an absurd claim, of course: being branded a rapist will foreclose significant future educational and employment opportunities. McLeod’s case is a particularly obvious example: he’s Australian, and in the United States on a student visa. He had a job lined up—but will lose the job (and the visa) without a degree, and therefore will be kicked out of the country.

To defend its actions, Duke sent to court Dean Sue Wasiolek, a figure who had a somewhat checkered record in the lacrosse case. Wasiolek lacked the almost casual disregard for due process of one of her superiors, Vice President for Student Affairs Larry Moneta, or the personal cravenness of Duke president Richard Brodhead. On the other hand, she urged the lacrosse captains not to tell their parents about the incident, advice that helped explain why they didn’t seek attorneys for several days.

Independent reporter John Tucker covered the hearing, and it seemed as if Wasiolek’s testimony didn’t go very well for the school. She admitted that Duke had never placed the presumption of expulsion in its published student handbook—but suggested this didn’t matter. “It is an understood practice. … We didn’t feel the need to make it public.” How something that’s not public can be an understood as standard must remain a mystery.

And she appeared to concede that Duke doesn’t take seriously Title IX’s promise of not discriminating on the basis of gender. Noting Duke’s finding that a rape occurs when a panel concludes based on 50.01 percent probability that a student had reached an incapacitating level of intoxication that rendered the student unable to give consent to sex, McLeod’s lawyer asked Wasiolek what happened if both students were drunk. In that case, presumably, “they have raped each other and are subject to expulsion.” Not so, stated Wasiolek: “Assuming it is a male and female, it is the responsibility in the case of the male to gain consent before proceeding with sex.” How this policy can be reconciled with Title IX must remain a mystery.

Judge Osmond Smith (the judge, ironically, who presided in the final stages of the lacrosse case) declined McLeod’s request that Duke be ordered to confer upon him his degree. But Smith also denied Duke’s request to dismiss the case. Instead, he ruled that Duke can’t finalize any expulsion until a trial. And so yet another unfairness in due process claim will go to court.