I have had numerous readers and reporters send me links on the scandal that has taken hold of Case Western Reserve University in the last few weeks. Dean Lawrence (Larry) Mitchell has taken a leave of absence after a lawsuit accusing him of a pattern of sexual harassment and other abuses. Frankly, I have not posted anything on the story because Mitchell is a former colleague of mine at George Washington University and allegations from his time as a law professor at GWU have been raised as part of the lawsuit. I have no personal or direct knowledge of the GWU allegations of relations with students but I wanted to see if the matter was quickly resolved. It was not and appears, if anything, to be getting worse. Given the inquiries from readers, I felt that I would give an accounting of the current status of the controversy and the legal issues raised in the lawsuit. Given my position at GWU, I do not feel that it is appropriate to discuss those allegations.
The amended complaint of Law Professor Raymond Ku alleges that Mitchell engaged in sexual harassment and retaliation as Dean, including suggestions of three-some trysts with students and administrators. The complaint further claims relations with students during Mitchell’s tenure at George Washington Law School and notes that he married a student while a law professor. Ku’s allegations have been reportedly affirmed by a former administrator who came with Mitchell to Case Western from GWU, Daniel Dubé. There are also unnamed faculty and students referenced in the complaint. [Update: for Dubé's affidavit, click here]
The complaint states that a professor reported an allegation from a student that Mitchell had proposed a “threesome” and sexual flirting and harassment by the dean. Media has reported that Daniel Dubé had come forward to say that he is Administrative Staff Member 3 referenced in the complaint. The complaint states that Administrative Member 3 reported Mitchell’s alleged sexual relationship with a law student and that he was then subject to retaliation from Mitchell. The complaint states that he was offered a severance package in exchange for a nondisclosure agreement.
The complaint states that Administrative Staff Member 3 recounted how Mitchell had proposed a threesome with the staff member and his date during a party at Mitchell’s home. Mitchell’s prior tenure at GWU is also part of the complaint: “Before Dean Mitchell arrived at Case Law School to begin his deanship, his reputation preceded him. Members of the search committee and the Case Law School faculty, including Professor Ku, were aware of concerns about Dean Mitchell’s sexual behavior at [George Washington University Law School], including at least one sexual relationship with a law student and other inappropriate and questionable conduct.” [For the record, I was not interviewed by their search committee and gave no information to the school].
Mitchell has denied all of the allegations and his counsel, before answering the complaint, took the relatively rare step of seeking to strike large portions of the amended complaint. He insists that Ku is a bitter and disgruntled colleague who had it out for him after he beat Ku in the competition for the deanship and is trying “to cover up and distract from his unsatisfactory performance.” Notably, David Lat has published defenses of Mitchell at Above the Law. This was before Ku’s counsel responded to the motion.
Mitchell has retained one of the leading firms in the area as well as a well-known public relations firm, Dix & Eaton. He is on paid leave. It is not clear if the university is paying for both the firm and public relations firm, but the university continues to support Mitchell who is viewed as bringing new innovations to the school during a difficult time for all law schools.
The first matter before Cuyahoga County Common Please Judge Peter J. Corrigan is the motion to “strike certain immaterial, impertinent and scandalous allegations and materials.” The motion insists these “immaterial, impertinent and scandalous allegations are in no way relevant to the limited claim in this case as to whether Ku was retaliated against in his employment, are clearly prejudicial to Dean Mitchell, and must be immediately stricken from the court record to prevent even further harm to Dean Mitchell’s reputation and goodwill.”
The amended complaint does contain inflammatory rhetoric but the motion by Mitchell’s attorney, Steven Kaufman, is novel and, in my view, problematic. Such an order would have to be based on a finding that the allegations have no legal relevance to the underlying claims. It is hard to see how a court could come to that conclusion without even an answer. Ku insisted that the answer is part of the public relations campaign of Mitchell. However, the court is likely to be more concerned that it could be used in cases to avoid having to answer specific allegations on the record and under oath. Courts therefore view such motions with considerable suspicion. If Mitchell were successful in the motion, it would signal serious problems with the filing in the view of the court.
If the motion is denied, this could result in a long and bitter litigation. The problem with this type of case is that any law professor is a potentially relevant witness and depositions often generate considerable objections and delays. Absent a settlement, this could be a costly and protracted contest.