Federal Judge Stops Expulsion Of Duke Student Over Lack of Basic Due Process In Alleged Sexual Assault Case

I have previously written about my concerns over the elimination of basic rights of due process at universities for students accused of sexual assault or harassment under pressure from the Obama Administration. That pressure continues to build this year with the Obama Administration investigating dozens of universities and threatening to take away federal funds if they do not remove certain protections under their rules of adjudication. Now a North Carolina judge has issued a rare order enjoining Duke University from expelling a male student, Lewis McLeod, who was accused of raping a female freshman. The concern over the lack of due process afforded the accused is of course a continuation of the criticism of Duke over its handling of the infamous Duke lacrosse team case. I have previously written about my view that Duke abandoned not just those students but any sense of due process or fairness in joining the mob accusing them of raping a stripper.

Superior Court Judge W. Osmond Smith III on Thursday rejected Duke’s effort to dismiss a lawsuit filed by McLeod who says that the university violated its contractual obligations in expelling him. Notably, the standard is a high one but the court concluded that “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 university has a rule making expulsion the default punishment for a student it found culpable of sexual misconduct. He was accused of raping a freshman while she was intoxicated after the two met at a campus bar. They both took a late-night cab back to his fraternity house. However, the police rejected the criminal charge after an investigation. McLeod insisted that the sex was consensual. Duke however says that sex under the influence of alcohol is not consensual –even when both students were drinking but only the male is charged. That triggers the default expulsion provision.

I have objected to the rules at George Washington in writing for many of the same failings. Duke is particularly problematic in its default provision because it would effectively give one party control of the outcome. Here both parties were drinking and both went by taxi to the room. Such cases are very difficult to adjudicate despite our collective concern over sexual assaults at universities. It is for that reason that the pressure from Obama Administration is so problematic in my view.

In this case, 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.” However, McLeod insists that the panel would not interview key witnesses, including fraternity brothers at the house that night. However, it did rely on an anonymous second-hand account of a witness for the accuser. He also says that the panel discouraged him from seeking legal advice. Those are very common objections leveled against universities under the new rules being promulgated on campuses.

As academics, we have a special obligation to protect our students. This includes responding such allegations immediately and protecting alleged victims. It also means protecting the rights of the accused. Duke has one of the worst reputations in this area for disregarding the rights of the accused in such cases.

Frankly, colleges and universities have been intimidated by the Obama Administration’s insistence that schools strip away protections for students accused of sexual assault. Presidents of colleges and universities tend to look at the bottom line and see millions at stake. Rather than risk the revenue, they are throwing these students under the proverbial bus. These are life changing decision for the students — leaving a stigma that will follow them for many years. It is possible to aggressively fight sexual misconduct and assault without disregarding basic rights of adjudication. What advocates are seeking is guarantees of expulsion and discipline by stripping out access to witnesses, counsel, and other protections.

I have long viewed academia as a place where we strive to create special zones of free speech, fair treatment, and due process. We teach the ideals of society and create an environment reflecting those ideals. That includes an absolute commitment to identify and expel anyone who is assaulting or threatening our students. These new rules are designed to be outcome determinative and leave little ability of the accused to present a full defense. To put it simply, it is wrong and there has been little debate over the Administration’s campaign in this area. It is worthy of a congressional hearing where people of good faith can discuss how to reconcile our commitment to protect students from assault and our commitment to due process for those accused for such acts.