Duke a Fat Target for Due Process Lawsuits

Among the many institutions facing due process lawsuits none, perhaps, is more deserving than Duke, a university that all but defined hostility to due process in the lacrosse case. The school lost in court last year, in a case filed by Lewis McLeod, whom Duke had branded a rapist after a highly dubious procedure. McLeod obtained a temporary restraining order that prevented Duke from moving ahead with expulsion, but his overall status was left in limbo, awaiting a trial this year. McLeod’s attorneys have sought to amend their complaint; its contents reveal new troubling items about how Duke handled the case.

The issue in the McLeod case was the accuser’s level of intoxication. Three housemates of McLeod observed the accuser and did not consider her intoxicated, slurring her words, or unable to form rational thought. The accuser filed a case with the Durham Police, but that investigation was closed—suggesting a lack of probable cause for her complaint. Yet Duke, after a slipshod investigation, would find McLeod culpable, on grounds that suggest indifference to Title IX’s obligation of no gender discrimination. (As explained under oath by a Duke dean, if sexual intercourse occurs between two equally intoxicated people, neither of whom can give consent, the male student is a rapist.)

The amended complaint adds defendants, bringing into the lawsuit against Duke’s disciplinary czar, Dean Stephen Bryan, and the “independent” investigator hired by Duke to handle sexual assault cases, Dr. Celia Irvine. I’ve written about Irvine previously; though she worked for the NYPD, she did so as a psychologist and appears not to have investigated any sexual assault cases, or any other criminal cases for that matter. Irvine did not respond to a request for comment about her background.

Irvine’s centrality to the amended lawsuit is explosive in its details, but also important for broader concerns. Universities—under pressure from the federal government—have moved toward the single-investigator model; Harvard did so this summer, and UVA’s proposed new procedures will ensure that future complaints, such as Jackie from the Rolling Stone story, will only need to convince an investigator of their veracity. (Duke’s procedures don’t go this far, in that Duke retains a hearing, but as the complaint makes clear, Irvine’s report essentially decided the case.) Yet as universities have turned over their inquiries to a single investigator, they have been extremely reluctant to release the guidelines they’ve used to hire investigators, the terms under which those investigators operate, or even the names of the investigators themselves. The McLeod case is a rare instance in which outsiders have been allowed behind the curtain to see how these “independent” investigators operate.

Irvine’s conduct appears particularly troubling in light of information presented in the amended complaint. It turns out that North Carolina law requires people serving as private investigators to have conducted 300 hours of training; no evidence exists that Irvine ever had such training. It’s unclear whether Duke knew about Irvine’s training level.

Irvine’s investigative technique was—to put it mildly—odd. Though the key issue in the case was the accuser’s level of intoxication, Irvine never contacted neutral witnesses—employees of the bar where McLeod and the accuser met, the taxi driver who drove McLeod and the accuser to McLeod’s off-campus residence. The “investigator” also chatted with the witnesses she did seek out over the phone. (Though Irvine is based in Chapel Hill, it takes less than 30 minutes to drive to Durham, even on a day with heavy traffic.) Irvine then presented summaries of her exchanges with witnesses, without turning over to the hearing committee (or McLeod) the transcripts of her interviews.

Having completed her report, Irvine didn’t testify before the hearing—denying McLeod an opportunity to cross-examine her about her investigative techniques; and, perhaps more important, denying McLeod an opportunity to ask her follow-up questions about the witnesses that she did interview. Nor did most of the students interviewed by Irvine testify at the hearing. As a result, McLeod’s attorneys point out, the student was convicted on the basis of “indirect double-hearsay” evidence. This double-hearsay material included an anonymous witness who said that he or she saw the accuser incapacitated on the night of the incident. In a remarkable coincidence, that anonymous witness made his or her presence known to Irvine on the same day that Irvine asked the accuser about her violation of a mutual no-contact order between the accuser and McLeod.

The amended complaint alleges that Irvine concealed her lack of a private investigator’s license from McLeod—vital information, since it would have easily allowed McLeod to impeach the non-investigator’s report. Perhaps more explosively, the complaint suggests that Irvine wasn’t an “independent” investigator at all, in that Duke placed restrictions on her inquiry, chiefly by telling her not to interview non-student witnesses. In the event, the official contract between Irvine and Duke was not revealed to McLeod during the hearing process, so McLeod had no way of knowing about whether any formal or informal restrictions had been placed on Irvine’s ability to gather facts.

The amended complaint argues that Duke’s due process shortcomings were more than exposed by the handling of the lacrosse “fiasco,” and yet Duke never did anything to correct its many errors. (Indeed, if not for what appears in retrospect to have been an insincere apology from President Richard Brodhead, there’d be no reason to believe that the Duke administration did anything wrong in the lacrosse case, even as the university paid around $23 million overall in settlements to the members of the lacrosse team and the team’s former coach.) And the complaint argues that Duke should have been on notice about the shortcomings in how it evaluated intoxication issues since FIRE raised precisely this point several years ago.

The complaint hints at a few other interesting matters:

(1)   In violation of a no-contact order, the accuser attended a social event at McLeod’s off-campus residence. She allegedly spoke with Sheila Broderick of the Duke Women’s Center before doing so, with Broderick suggesting that the accuser was allowed to violate the order. Broderick did not respond to a request for comment.

(2)   The training material that Duke provides for its sexual misconduct panelists is wildly biased, and includes the alleged “fact” that less than 2 percent of rape claims are false. That “training” doubtless was welcomed by the chair of McLeod’s panel, a gender violence researcher. (Imagine the outrage if Duke sexual assault tribunals were chaired by, say, a researcher in men’s rights issues.)

(3)   Duke officials discouraged McLeod from having an attorney work with him through the disciplinary process.

(4)   When McLeod asked Dean Bryan for a copy of Duke’s new (but unpublished) policy stating that expulsion was presumed punishment for sexual assault cases, Dean Bryan allegedly replied, “You can get it when you sue us.”

The complaint reasons that Duke’s goal was “to make an example” of McLeod. But “justice” in sexual assault cases has never been much of a concern to the current Duke administration.