Tuesday, February 23, 2021 : By Nathan Skates
A male student at Duke University has filed a lawsuit against the school, alleging that officials violated his rights to due process and caused him irreparable damage.
The anonymous student claimed that the school mishandled his case after he was accused of sexual assault. In this case, both parties agreed that the sex was consensual, but the female said that one act was not, an accusation the male student denied. The female student was initially interviewed by Associate Dean of Students Victoria Krebs, but the accuser eventually decided not to pursue the charges. The case was later reopened by a disciplinary panel.
The male student was found guilty during the hearing, with the panel claiming that he made inconsistent statements and his account did not match witness accounts. He was suspended for three semesters.
The student appealed the finding due to “procedural errors” and then filed suit after his appeal to the school was denied. He claims that he suffered “irreparable damage” as a result of the guilty finding and suspension, including the fact that he was withdrawn from consideration for the Rhodes Scholarship.
The student’s lawsuit argues that the school violated “Common Law Fairness and Due Process” because Krebs served as both a witness and an investigator and made decisions on “what evidence was relevant, what would be provided to [him] and what information would be included in the hearing packet provided to the panel.”
The student’s lawsuit claims Krebs was not interviewed by Duke investigators like other witnesses. His complaint states:
“It is arbitrary and capricious, fundamentally unfair and a violation of Due Process for a witness to act as both the gatekeeper of information provided to the investigators (and hearing panel) and to serve as a factual witness. This allows a witness to insulate herself from any type of challenging cross examination by denying a respondent basic evidence to which he was entitled even under Duke’s own Sexual Misconduct Policy.”
Duke officials denied any wrongdoing and said there was no procedural error. The school claims the student received the notes and did not present them to the appellate panel.
Other students have filed suit regarding Duke’s handling of sexual assault and sexual harassment allegations, including Ciaran McKenna who was suspended for six semesters before being reinstated, as well as Lewis McLeod. Ariana Qayumi also filed suit, alleging that the school mishandled her complaint.
The current lawsuit against Duke is a remnant of the Obama administration’s Title IX policy. Title IX is a 1972 civil rights statute that originally was designed to protect against sex discrimination within federally funded educational institutions, but the Obama Administration broadened the guidance to cover schools’ responsibility for dealing with sexual harassment and sexual assault. These guidelines established a lower standard for proof against the accused within university disciplinary proceedings and discouraged the use of cross-examination of accusers.
Advocates believed the Obama rules provided accusers with a safe space to report sexual crimes, while others thought the guidance resulted in “kangaroo courts” that provided the accused with no due process protections and too many findings of guilt based on emotion rather than deliberation and evidence.
After Trump was elected, new Education Secretary Betsy DeVos reworked Title IX rules to ensure that anyone accused would be granted basic constitutional due process rights, including the presumption of innocence throughout the investigative process and the right to be told of all evidence against them. The accused can also cross-examine the accuser through a lawyer.
The Trump-era policy, which was released in May 2020, also narrowed the definition of “sexual harassment,” compared to that under the Obama administration. Kenneth Marcus, who served as the Education Department’s assistant secretary of civil rights, said the change in policy was because the department, “heard from too many students whose careers were tarnished by administrators without any resemblance to due process.”
Critics of the Trump policy said that it would cause victims not to report assault. Vanita Gupta, CEO of The Leadership Conference on Civil and Human Rights and a former Obama justice official, went so far as to say, “This is all part of this administration’s ongoing attempts to undermine the civil rights of students.”
Former Republican Sen. Lamar Alexander said the policy “ensures victims get the support they need to change classes or dorms if they allege they have been sexually assaulted or sexually harassed, and the rule ensures the victim and the accused get a fair hearing to resolve such allegations.”
President Joe Biden has said he would put a “quick end” to the DeVos policy and planned to “return to and then build on” Obama policies which emphasized the rights of accusers.
Angela Morabito, who served as Education Department spokesperson under the Trump administration, said, “To get rid of the DeVos Title IX rule is to ignore the consensus Supreme Court rulings, dozens of lower court decisions, and scholars across the political spectrum. To get rid of the DeVos rule is to send a clear message that due process and fairness don’t matter.”
The disciplinary process involving the anonymous Duke student who filed this most recent lawsuit began in February 2019 and so it adhered to the Obama-era rules.
One of the cornerstones of our system of justice is that the accused has the right to a fair trial and the presumption of innocence. While allegations by an accuser are to be taken seriously and handled sensitively, due process for those accused is what the Supreme Court has repeatedly described as “the greatest legal engine ever invented for the discovery of truth.”
That’s why the burden of proof is on the prosecution, not the defendant. Due process ensures careful deliberation and fairness and guards against a rush to judgment. The idea that society should “believe all women” or any accuser without a thorough investigation and evidence that proves the accusation beyond a reasonable doubt is dangerous and fallacious.
Unfortunately, during the Obama years, this was the standard, and the lives that were ruined as a result cannot be overstated. Since 2011, hundreds of lawsuits have been filed in state and federal court against colleges and universities by individuals claiming due process violations, and universities have lost more of these cases than they’ve won.
Duke University should have been more sensitive on this point given the infamous Duke lacrosse case in 2006. When three Duke lacrosse players were accused of rape by an exotic dancer they had hired for a party, the students were immediately presumed guilty by Duke officials and faculty, as well as the media, before charges were even filed. Not only were the three students eventually exonerated in full, but the district attorney who brought the case was disbarred for manufacturing evidence and bringing a “selfish” prosecution.
The disbarment committee stated that the prosecutor manipulated the investigation to boost his chances of winning his upcoming election for Durham County district attorney. In so doing, he committed “a clear case of intentional prosecutorial misconduct” that involved “dishonesty, fraud, deceit and misrepresentation.”
Fortunately for the Lacrosse players, the truth was eventually revealed because our justice system operates under the presumption of innocence and due process rather than to automatically “believe” all accusers.
Throwing away centuries of legal procedure and the rights of the accused even in a campus setting has real-world consequences. Students are kicked out of school and their reputations and futures are ruined. Without due process, evidence collected and witness testimony taken during university proceedings could be used to further criminally prosecute students for crimes they may or may not have committed.
An example is that of the aforementioned Lewis McLeod, a Duke student from Australia who was accused of sexual assault in 2014. Though police investigators could find no evidence of a crime, the university tried McLeod under a new “proposed” expulsion rule that hadn’t even been written down or formalized. During the hearing, the school denied him the right to present his own witnesses or to cross-examine the case investigator; one prosecution witness was even allowed to testify anonymously. Ultimately, the Duke panel found McLeod guilty and withheld his degree. As a result, McLeod lost a job he had waiting for him and had his visa rescinded, forcing him to return to Australia. He sued Duke, and in 2018, the university settled the case and expunged his record.
The Biden administration wants to not only go back to this type of “justice” for students but wants to expand it so accusers have even more rights. Any effort to do so won’t be quick, as DeVos did take the time to implement the Trump-era rules using more formal rule-making procedures, and short of an act of Congress, the Biden administration will have to go through the same lengthy process to reverse them.
However, if Biden is successful, universities will continue to become sub-constitutional institutions where students have less rights than the rest of society. Already, campuses are largely devoid of basic First Amendment rights to free speech and the free exchange of ideas. Under Biden, they could once again become a place where accused students are deprived of their basic rights to due process and fairness.