In an ongoing Title IX lawsuit against the University, experts said the plaintiff has the burden of providing concrete evidence before succeeding on the merits of the case.
The University was sued earlier this month for allegedly mishandling the plaintiff’s sexual assault investigation. As part of the complaint, the plaintiff alleges she was subjected to a “drug-facilitated rape” by two students, one of whom was the stepson of former Provost Peter Lange.
"The individuals involved in determining the University's response to the reports and evidence of [one of the student's] sexual misconduct were all subordinates of [one of the student's] stepfather,” the complaint alleges.
Also criticized in the lawsuit is the hiring of Celia Irvine, an independent psychologist, to conduct sexual assault investigations. During these investigations, the complaint states, Irvine concealed evidence of “drug-facilitated” sexual assault and aimed to protect the accused students.
The Office of Institutional Equity later affirmed the University’s decision to put one student on probation as “sufficient to meet its obligations under Title IX,” but the plaintiff is asking for damages and an admission that the University mishandled the investigation.
University procedures
In 2011, the Department of Education’s Office of Civil Rights wrote a letter lowering the evidentiary standard universities use to decide if an accused student is guilty of sexual misconduct. The standard was reduced from the stricter “clear and convincing evidence” to “preponderance of the evidence” standard.
“That standard seeks to determine whether it is more likely than not that the accused has engaged in the alleged misconduct,” said Andrew Boutros, a partner at the law firm Seyfarth Shaw LLP.
Duke’s Student Affairs website confirms the University uses a “preponderance of the evidence” standard for sexual assault cases. Academic dishonesty cases, on the other hand, still require “clear and convincing evidence” to find the accused in violation.
Although the lower burden would seem to benefit the plaintiff, Robert Shibley, executive director of the Foundation for Individual Rights in Education, said both alleged victims and accused students often have problems with administrative procedures.
“We hear reports from both the accused and from the alleged victim and both of them commonly think the procedure is biased against them or left out important parts of their story,” Shibley said.
He added that the university often has its own interest in the outcome of an investigation, a “perverse incentive to do what’s convenient, not necessarily what’s right.”
Michael Schoenfeld, vice president for public affairs and government relations, countered that notion in a written statement. The “well-being of all our students is Duke’s highest priority,” he wrote, adding that Duke follows a “careful process” when investigating sexual misconduct.
Shibley said universities are in a poor position to make decisions on such allegations, and that decisions of guilt or innocence should be made by outside law enforcement instead. Because university proceedings are not criminal justice proceedings, the rights that each party should have are still being debated, Boutros added.
“That’s what law enforcement is for,” Shibley argued. “There’s also a moral problem with allowing people who may have engaged in sexual assault, because they were on campus, to not go through the same procedures had they decided not to go to college or were just a year after college.”
The lawsuit alleges that Duke Police investigated the issue and told University officials a felony had been committed.
Concrete evidence
Both Boutros and Erin Buzuvis, a law professor at Western New England University, said the plaintiff has the challenge of providing concrete evidence in support of her case.
“That can take many forms, anything from eyewitness testimony to video to text messages to voicemail messages to emails, something that corroborates or substantiates what the victim said occurred, so it's not just a 'he said, she said,’” Boutros said.
According to the complaint, a video of the alleged assault was taken and was seen by Duke Police investigators.
Buzuvis said the plaintiff has to show what is called “deliberate indifference” on the part of the University, which is different from just arguing that the University took some action but not enough.
“The plaintiff needs to show intent, intent to not take action, like the University intentionally disregarded the problem,” Buzuvis said.
Parts of the complaint referring to Lange and Irvine could fit that definition, but only if proven, she said.
“The mere fact that this person is the Provost’s step-son does not tell you that was motivation to suppress a disciplinary response,” Buzuvis explained. “You would need to have some evidence that would show that affected the investigation.”
Buzuvis said that the plaintiff’s attorneys will likely use the discovery process—wherein both sides share evidence with each other prior to trial—to actually find such evidence, if it exists.
“The attorneys are going to look for record evidence, for conversations amongst the investigators and the University, or from the Provost if he has conversations with people who are involved that could be seen as direct or indirect pressure to let his step-son off the hook,” she explained.
Past lawsuits
John Burness—visiting professor of the practice in the Sanford School of Public Policy and former senior vice president for public affairs and government relations—explained that Duke faces lawsuits “all the time.”
He noted that many people in Durham view Duke as having “deep pockets” so it is not surprising that Duke is encountering another suit. However, he said that he never faced a lawsuit like the most recent one during his time as vice president for public affairs and government relations.
Duke has always had a policy not to comment on ongoing litigation, Burness explained.
“You don’t want to have the issue tried in the press, you want to have it tried in the court,” he said.
Claire Ballentine contributed reporting.
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