Monday, June 2, 2014

Judge Blocks Expulsion of Duke Student Accused of Sexual Misconduct

As reported here:

A North Carolina judge has stopped Duke University from expelling a male student who was accused of rape by a female freshman.

Duke, which came under fire in 2006 for its handling of rape accusations against lacrosse players who were later exonerated, has found itself back on the defensive, as it battles a claim by a student that it expelled him without a proper investigation and due process. State prosecutors in the earlier case dropped all charges against the players, declaring them innocent victims of a district attorney’s rush to judgment.

The unusual case comes as colleges around the nation face growing pressure to go after sexual-assault crimes on campus. Dozens of schools have come under investigation by the Obama administration for their perceived inadequate handling of sexual violence or harassment complaints.

The Duke case also comes amid criticism by some student civil liberty advocates who say campus systems for adjudicating complaints lack safeguards for protecting the rights of the accused.

Superior Court Judge W. Osmond Smith III on Thursday rejected Duke’s effort to dismiss a lawsuit filed by the accused student, Lewis McLeod, a senior who accuses the university of violating his contractual rights. The ruling blocks Duke from expelling him at least for now.

“The plaintiff has demonstrated a likelihood of success on the merits as to his contentions that the defendant has breached, violated, or otherwise deprived the plaintiff of material rights related to the misconduct allegations against him and the resulting disciplinary process addressing such allegations,” the judge wrote.

Judge Smith enjoined Duke “from expelling the plaintiff… pending a final determination on the merits.” But he declined to order the school to grant him his degree, stating that he couldn’t make that decision at this stage of the litigation.

“We are pleased the Court recognized the need to preserve the integrity of Duke’s decision not to issue a degree at this point in the lawsuit,” a Duke spokesman, Michael Schoenfeld, said in a statement. The school declined to comment on other elements of the litigation.

Mr. McLeod’s attorney, Rachel Hitch, called the granted injunction “very hopeful news” for her client, who hasn’t been charged with any crime.

She believes Mr. McLeod, a soccer athlete on the school’s dean’s list, is the first student expelled by Duke for alleged sexual misconduct and that it’s the first time the school enforced a year-old policy that makes expulsion the default punishment for a student it found culpable of sexual misconduct.

The female student, whose name has been redacted from court documents, accused him of raping her while she was intoxicated after the two met at a campus bar and took a late-night cab back to his fraternity house. After police investigated her claim but declined to file charges, she reported the matter to the school’s student conduct office. Mr. McLeod claims the sex was consensual and came to a stop after she started crying.

Duke’s student misconduct policy considers sexual conduct as “without consent” if an individual is incapacitated due to alcohol. What constitutes “incapacitated” is left vague, according to some academic watchdogs, including Brooklyn College historian, K.C. Johnson.

In March, a three-member Duke disciplinary panel ruled that the female student “had reached an incapacitating level of intoxication that rendered her unable to give consent to sex,” and that “a reasonable person would have known [complainant] was too intoxicated to be able to give consent,” according to the Indy Week newspaper, which published a lengthy account of the case.

Mr. McLeod’s complaint claims that the panel failed to interview — or permit testimony — from key witnesses, including fraternity brothers at the house that night, while relying on a second-hand account of an anonymous witness. It also alleged that Duke discouraged him from seeking legal advice and expelled him under an unpublished policy.

“[W]hen Mr. McLeod’s representative asked for a copy of the policy, Dean Stephen Bryan slammed the door in Mr. McLeod’s face and said, ‘You can get it when you sue us,’” according to the complaint.

An Australian native in the U.S. on a student visa, Mr. McLeod said he needs a degree to work at a Wall Street investment firm that offered him a job. And without a job, he would have to go back to Australia, according to his lawyer.