OT: Judge Blocks Expulsion of Duke Student Accused of Sexual Misconduct

Submitted by Billy Ray Valentine on June 2nd, 2014 at 6:08 PM


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.


LINK:  http://blogs.wsj.com/law/2014/06/02/judge-blocks-expulsion-of-duke-stud…


I acknowledge that posting this article runs the risk of the ripping open the Brendan-Gibbons-scab that is far from healed.  Maybe I am naive, but I believe this board, with a few exceptions, is capable of engaging in a collegial, respectful, non -political (!) discussion regarding this increasingly relevant topic.  IMHO, this topic is no longer just a Gibbons-issue, but rather a larger issue that will affect all college students, including athletes, for years to come.


Some of my questions for the board's discussion are: (1) Will lawsuits on behalf of expelled students become increasingly more common? (2)  Is it possible to entrust university employees who potentially have no law enforcement or criminal investigative experience to conduct sexual assault inquiries?  (3) What standard of proof requirements should be in place prior to expelling a student for sexual misconduct?  


I would very much love to hear some novel opinions from the Mgolawyers, the Mgo-policemen/women, or anybody with professional experience in investigating these types of crimes.    





June 3rd, 2014 at 8:45 AM ^

I agree with you that universities have been lax on the handling of sexual assault cases to make themselves look better.  And the new emphasis by the Dept of Ed is a good thing to protect victims and survivors...as long as it's done correctly.  I know this isn't a 'criminal investigation' or 'criminal penalty', but Duke, by expelling him and not awarding him a degree, is basically confiscating his degree.  That is a material possesstion by the judges rulling; a material possestion that he would have otherwise earned by merit.  Thus, from what I've read, it seems the crux of the accused lawsuit, is that Duke did not follow any type of due process is confiscating his property.  That's the problem here. 

The panel allegedly, according to the accused, would not even hear, or let be admitted, defense witness testimony or evidence, and also did a poor job investigating.  This may vary by state, jurisdiction, etc, but I'm pretty sure that even when an organization, even if freely associated with, wants to take a material possesstion, they have to follow due process (but burden of proof is lower than criminal justice system).  That is certainly true of my profession.  If my Board wants to confiscate by earned license, they have to follow due process that includes me presenting evidence in my defense, being represented by an attorney, and presenting defense witness testimony.  If they don't, they they will get slapped with a lawsuit, that, I'm told based on history, they will lose.


June 2nd, 2014 at 8:40 PM ^

IMO it is necessary for universities to make these determinations even when law enforcement fails to, because we know for a fact that law enforcement frequently fails to deal with sexual crime. I also kind of think the preponderence of evidence standard is high enough; the alternative is keeping college bars and frat parties stocked with suspected rapists. Other students deserve better than that. I don't see how Duke, a private university, is going to lose this case. All that happened here is that the judge refused to dismiss it. That's a long way from the student's winning.

To answer the OP's first question, I do think we'll see a lot more of these lawsuits. Even if the accused did it and knows he did it, it's very much in his interest to appear as outraged as possible.

FWIW, WSJ has taken a strong editorial stance against the current Title IX interpretation as it applies to accusations of sexual assault on college campuses. They are a pretty biased source, even more biased than me!


June 2nd, 2014 at 9:01 PM ^

...Universities have a definite conflict of interest to be seen to active against those accused of sexual assault or rape irrespective of the facts.

For example, what would have happened to the Duke lacrosse players if Title IX had been in effect then?

I also do not understand why are there different rules for University students than the population at large?

I am against sexual assault in all it's forms, however I do not believe creating the potential for kangaroo courts to be the answer.

Greater vigilance, education and on campus security can help.


June 2nd, 2014 at 9:08 PM ^

That point doesn't really carry any weight. Almost every organization you'll ever find has it's own unique bylaws that subject its participants to conditions and restrictions different from those placed on the general population. And it's easy to cherry pick evidence to the contrary. You can do that for anything. For every duke lacrosse case, there are hundreds of sexual assaults and rapes that go unpunished. This is a proactive step. Is it perfect? No. But it's infinitely, immeasurably better than the alternative.


June 2nd, 2014 at 9:10 PM ^

Title IX was in effect then. The guidance from DoE about what universities had to do to be compliant was just different. And i don't know what the university would have done; could it do any worse than the police and DA did in that case? I doubt it. Worse case scenario: Duke is also on the losing end of a lawsuit from the falsely accused?

There aren't different rules for anybody. See how long you keep your job if a coworker accuses you of rape.

Vigilance, education, and security do not unrape people. 


June 2nd, 2014 at 9:33 PM ^

The Duke issue was totally political. It was horrible police work that was tainted, at least in part, due to severe pressure from self-aggrandizing liberals at Duke and in the media who couldn't wait to jump on the race and class issues that exist in Durham. The number of statements from Duke professors and students, and op-eds from major left-wing newspapers decrying the crimes of the "white boys of privilege" was ridiculous given the fact that the investigation hadn't even been completed.


June 2nd, 2014 at 9:20 PM ^

"For example, what would have happened to the Duke lacrosse players if Title IX had been in effect then?" 

Title IX has been in effect since 1972. And the Duke lacrosse players were hosed by the university, and only were reinstated when it became obvious the district attorney falsified evidence. 


June 2nd, 2014 at 9:05 PM ^

Yes but you're assuming that preponderence means that you'll only catch people who are rapists or sexual presators. If you do not use "beyond reasonable doubt" you're bound to have a lot more innocent people convicted than if you had a trial. Essentially what these schools are saying is that you are guilty until you can prove you're innocent of what we're charging you with.


June 2nd, 2014 at 10:13 PM ^

I'm not ok with confirmed rapists remaining enrolled. (We're just supposed to be saying things that make our positions seem like common sense that only truly outrageous bastards could disagree with, right?)

That's not the same thing as what you said, though.  Neither of us is OK with confirmed rapists being enrolled.  Only one of us is OK with slapping the "rapist" label on people who aren't rapists.

You've created a terrific paradox in your own position.  You're saying that rape is such a heinous crime that it justifies tyrannical methods to stamp it out - yet you're fine with innocent people carrying the stigma of it.  That's supremely fucked up.


June 3rd, 2014 at 9:59 AM ^

have summed up in a succinct argument, the true issue at hand here.  Rape is a heinous crime that is difficult to prove and can be nearly as bad detrimental to be falsely accussed. I took a class called philosophy in law and rape was one of the topics we covered.  In college, with young hormone fueled adults with their first chance at freedom and access to lots of alcohol, rape is a very confusing issue and problem. 

I don't envy anyone in the process who has had to deal with rape, false accusations, or with making a judgement sure to affect both lives.   


June 3rd, 2014 at 10:40 AM ^

I didn't say it was the same thing as what i said before. I just thought I'd try to play the same game as you by saying things that it's uncomfortable to disagree with. There are not good solutions here. The bad solution where once in a blue moon somebody gets expelled on the basis of a preponderance of the evidence is probably the least bad solution.

I am, of course, ok with slapping the rapist label on rapists, even if the legal system can't convict them. Take, for example, Gibbons, who we both know is a rapist. I was willing to--and did--call him a rapist a long time before you were willing to call him one, and I've been right all along.

What I really think is that universities are legally required to do whatever they can to remove threats from their classrooms, and that the current policy does that. As for the worry about false accusations, there are two kinds of situations where somebody can get falsely accused: (i) he said/she said cases and (ii) cases where the accusation can be proved false. In situation (ii), the falsely accused has a legal unicorn--a slam dunk defamation case--so things will work out that way. In situation (i), the outcome is bad. But I don't see how to avoid it without something worse happening, and we have no evidence that it's ever actually happened anyway. Seriously, point to a single case of somebody being expelled under the current DoE rules on the basis of a false accusation. Can't be done.


June 3rd, 2014 at 11:27 AM ^

...but we use the same "preponderance of evidence" standard if I want to take your property/money.


The only place the US Justice system uses "beyond a reasonable doubt" is in criminal cases where your FREEDOM could be taken.


If someone just want to take your money/property/posessions - it's straight up preponderance of the evidence.


June 2nd, 2014 at 10:32 PM ^

No, the answer to your question is yes.  I'd rather not, but there is absolutely, positively no way to nail down, with 100% unimpeachable certainty, every guilty party, while also with 100% certainty allowing every innocent to walk free.  That's a fantasy land that doesn't exist.

The choice between imprisoning innocent people and allowing guilty people to walk free is not a desirable one but it's an absolutely necessary one and I prefer to let guilty people walk.


June 2nd, 2014 at 11:23 PM ^

I'm not talking about incarceration. Liberty is a fundamental right and is protected by the whole "beyond a reasonable doubt" standard.

What we are talking about, though is not criminal. And it's a HUGE difference. We let O.J. Simpson off the hook under the "beyond a reasonable doubt" standard (I know it's a loaded example, but bear with me), but he didn't get off scot-free. He was later found guilty in civil court.

We should absolutely conform to the highest standard possible before taking away a person's freedom, but there's no reason that a person should be legally immune from all consequences   for his/her actions just because you can't prove they did it with 100% certainty.


June 3rd, 2014 at 10:44 AM ^

But liberty also involves not having your property unfairly confiscated.  And that's the what the accused says happened, and what future lawsuits will decide.  A degree is something one can own, and costs time and money.  In order to confiscate it, due process needs to be followed (in the examples I can think of at least).  OJ Simpson was found guilty in civil court with a lower burden of proof, but the legal system's due process was still followed.  The crux of this lawsuit seems to be that Duke did not follow proper due process.  While no system is perfect, proper due process is in place to help avoid the 'innocent' from being unjustly punished.  I imagine future lawsuits will explore other aspects of these type of accusations that are being discussed here though. 


June 3rd, 2014 at 11:52 AM ^

Incorrect from what I can tell. Note, this is not a criminal trial and does not require criminal burden of proof, but due process must still be followed.  From an ACLU chapter's webiste:


In 1974, the Supreme Court heard the case Goss v. Lopez, a case involving students who had been suspended without a hearing, and ruled that students have a right to due process in schoool...If a student is facing a more serious punishment (suspension for more than 10 days, or expulsion), the student is entitled to a formal hearing before an impartial body (usually the local school board). The student may have a lawyer present and may cross-examine witnesses.


June 3rd, 2014 at 11:57 AM ^

That was a public high school.

Just to repeat, private actors (which include universities) ARE NOT bound by the Bill of Rights.

Scenario #1: You are a government worker and your boss wants to fire you because you're ugly. You are ENTITLED to due process because your job counts as a property interest.

Scenario #2: You are a worker for any non-government employer and your boss wants to fire you because you're ugly. TOO BAD. You are NOT ENTITLED to due process.


Just to repeat, private actors are not obligated to give due process rights. Period.

Public actors are obligated to give due process rights.


June 3rd, 2014 at 12:50 PM ^

True, a private university has not been obligated to provide the same due process under the 14th amendment that public institutions are. I was just responding to the poster's statement about universities, seemingly, in general.

But private institutions are obligated to follow their own policies and 'due process' when disciplining a student. In Duke's case, it is very vague as to how the investigation should be carried out, who should conduct it, and what witness testimony should be allowed. It does specifically state the presumption of innocence and grant rights to confront the accuser and such. And more specifically in this case, the policy used to punish him I believe was unpublished at the time (and one of the deans allegedly told the accused he could see the policy when he sued Duke). Litigation is still pending and such, but the judge seemed to think there was enough evidence of Duke violating their own due process to stop the expulsion for now. I have no idea if this will result in any generalizability outside of this specific case though. Probably not.

Gulo Gulo Luscus

June 2nd, 2014 at 11:42 PM ^

Which is the worse (and far more common) injustice to the innocent: being sent to prison or getting raped and watching "the guilty people walk"?  To present what may be a reasonable summary of the question:

It is true that most rapes go unreported, that the public believes false accusations are exponentially more common than they actually are, and that a man's chances of being falsely accused of rape are incredibly small.


June 3rd, 2014 at 1:09 AM ^

the legal system's capability to handle rape has a heinously bad type II error rate. and considering that the consensus on rape statistics shows that type I errors are rare, this seems like the lesser of two evils.

and far worse punishments are doled out to people who deserve it much less every day. or maybe i'm just watching too much GoT...


June 3rd, 2014 at 1:31 AM ^

if 1) the punishment is expulsion from school and not a prison sentence, 2)false accussations are rare, and 3) it means that damn near 100% of real incidents of sexual misconduct that are reported result in expulsions.

1 is definitely true, there is a "preponderance of evidence" that 2 is true, and considering the lowered burden of proof, 3 is most likely true as well.


June 2nd, 2014 at 11:07 PM ^

people can argue alot of things, but that is most definitely not the legal standard. And you're saying so doesn't make it so.  The burden of proof--which is a meaningful obstacle that must be met in our jurisprudence--remains on the complainant.

I try to no longer open these types of threads because of, among other reasons, the consistent legal misrepresentations--particularly in administrative settings--and the unbelievable lack of concern for women--and sexual assaults on our campuses.  


June 2nd, 2014 at 9:43 PM ^

1) yes

2) no

3) standard should be the court of law. We have laws and lawyers for a reason (even if the system is flawed). That should be it. A university does not have the same ability to investigate anything, which is why police departments exist (again, even if flawed). I don't understand how anybody can believe otherwise. Maybe change laws to make it easier to convict accused sexual assault perps? However, we have laws for a reason.


June 2nd, 2014 at 9:58 PM ^

So when BYU decides to expel a student for extramarital or premarital sex the investigation should be entrusted to the police and the action should go through the courts? When they expel a student for failing to meet the requirements for religious observance, they should go through the courts?

We have courts for a reason--to administer the law. They aren't there to enforce every code of conduct belonging to a voluntary association (though they are available, as in the present case, if someone believes that the voluntary association has acted illegally in enforcing its code).


June 2nd, 2014 at 10:43 PM ^

When a police officer pulls her over, does she get the chance to say she's not responsible because she's a female and she didn't understand what she was doing? No, she is held accountable for her actions. Yet when most likely both parties were drunk and made a poor decision, the female says she couldn't give consent and it's the guys fault. The guy's life is destroyed even though two parties were involved in the poor decision. We are just going to assume the female wasn't responsible because sometimes the guys take advantage. The guy gets kicked out of school and is stigmatized for life and the female goes to the next party.

I have a daughter and a son.

I'm going to be damn sure I explain to my daughter that if put yourself in the wrong circumstances, bad things will happen. Hopefully you don't do that but know that you can put yourself in situations where bad things will happen and drinking makes it more likely.

I'm going to be damn sure to explain to my son that if you put yourself in the wrong circumstances, bad things will happen and drinking makes it more likely.

Saying a mutually stupid decision is the guys fault makes no sense but it's the way it's looked at now. Both parties need to be held responsibility for the stupidity.

A rape is different. I'm talking about sex that happens every weekend after leaving every bar in the country.


June 2nd, 2014 at 11:24 PM ^

Is there actually any evidence that schools wouldn't take action if a male student brought allegations that somebody took advantage of him while he was drunk and unable to truly consent? Has any male student ever brought such a case?

I know that there are men that joke about "banging drunk chicks" and set up situations with the intent of bringing that about. I've never heard of women doing the same, with reference to drunk guys. Maybe they talk about it on their own and I'm not invited to the conversation?

I'm guessing not.


June 3rd, 2014 at 12:12 AM ^

That is absolutely not what you were referencing when you said "I'm guessing not." You were referring to your sarcastic hypothetical of women setting up men for unwanted sex, i.e. rape. And you were sarcastic because you were dismissing it as a possibility, by implication. It can and does happen. It is not a mere theoretical possibility.