An anonymous student has filed a lawsuit against Duke alleging that the University improperly handled a disciplinary process that led to him being suspended for three semesters over sexual assault allegations.
The student, referred to by the pseudonym John Doe in court filings, accused Duke of violating his rights of due process, breaching contract and negligence, after he was found responsible for sexual violence and suspended for three semesters beginning in fall 2020.
The student asserted that being withdrawn from the University would cause him “irreparable damage” and that he was withdrawn from consideration for the Rhodes Scholarship, among other sanctions. He filed suit after his appeal to the University was denied, initially requesting damages in excess of $25,000 and a jury trial.
Michael Schoenfeld, vice president for public affairs and relations, wrote in an email to The Chronicle that Duke “doesn’t comment on pending litigation and will respond directly to the court.”
The Durham County Superior Court granted the student a restraining order Oct. 7, preventing Duke from suspending the student and ordering the University to re-enroll him “and return him to the same status as [he] enjoyed prior to his suspension of October 7, 2020.”
The court granted the order based on the student’s assertion that he would be “irreparably harmed in the event a temporary restraining order is not entered.”
The sexual assault allegations against the student involve an incident that occurred with a female student in an East Campus dorm on Jan. 19, 2018. According to court documents, the female student alleged to Duke investigators that the student now suing Duke performed an unconsensual act during otherwise consensual sex, whereas the student suing Duke asserted the act was consensual.
The disciplinary process began in February 2019, according to the student’s complaint, and the student who filed the lawsuit was interviewed by Associate Dean of Students Victoria Krebs, who is in charge of Title IX outreach and response. The complainant then decided against pursuing the case, and it was halted. It was later reopened in May 2020 with a disciplinary hearing on Aug. 6, according to the documents.
At this hearing, a Duke panel found the student responsible for sexual violence because he allegedly made inconsistent statements to investigators and his account did not match witness observations. He appealed ten days later on the basis of “procedural errors,” including the use of Zoom for the hearing, according to the initial complaint.
The student claimed in his complaint that he was not allowed to review the full, unredacted notes from his 2019 conversation with Krebs before his disciplinary hearing. He also argued that Krebs had a conflict of interest as a witness in the hearing making 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 University’s appellate panel denied the student’s appeal in a Oct. 7 letter, stating that the appellate panel found “no ‘procedural error that materially impacted the hearing panel’s decision’.” It found “no evidence of a conflict of interest” by Krebs, stating that only the Office of Institutional Equity investigator made the decision about what evidence and portions of Krebs’ notes to include in the investigative report.
The letter also claimed that Jeanna McCullers, director of the Office of Student Conduct, denied that the student requested for notes in writing prior to his hearing. It added that when the student requested notes for his appeal and received them, he did not provide the notes to the appellate panel or explain why they would be relevant to the hearing panel’s initial decision.
The student also argued, according to a University appellate board letter included in court filings, that if his hearing had been scheduled later as requested, he would have been entitled to have his case resolved under updated Title IX regulations implemented Aug. 14. However, Duke rejected this argument in its letter on the basis that the allegations against the student occurred in January 2018, so the new regulations did not apply.
“According to a technical assistance document issued by the Department of Education’s Office for Civil Rights, the new Title IX regulations do ‘not apply to schools’ responses to sexual harassment that allegedly occurred prior to August 14, 2020,’” the letter reads.
The student’s court complaint alleges that Duke violated his rights to “Common Law Fundamental Fairness and Due Process” when Krebs created a conflict of interest by being both a witness during the hearing and an investigator making decisions on what information was included in the final investigation report. The complaint states that Krebs was never interviewed by the Duke investigators, while other witnesses were.
“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,” the complaint states. “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.”
The complaint alleges that Duke breached its contract of good faith and fairness with the student when Krebs “became an investigator and subsequently a witness in this matter,” denying the student of a “neutral decision maker,” according to the complaint. It adds that the student’s nomination for the Rhodes Scholarship was refused before he had received his appeal, which violates the process mandated in the Duke community standard.
“Defendant Duke University is vicariously liable for the negligence of its employees and agents, including but not limited to, the negligence of Dean Krebs, and the employees in the Office of Student Conduct,” the complaint states.
Krebs and McCullers forwarded requests for comment to Schoenfeld. Beskind declined to comment.
The lawsuit was originally filed in Durham County Superior Court Oct. 6.
Duke accepted the service of summons, complaint and temporary restraining order the Oct. 8. The preliminary injunction hearing was initially scheduled in the Superior Court for Oct. 16 before Duke moved for “a continuance of said hearing” until Nov. 4.
On Nov. 2, Duke removed the case to a federal court given the subject matter. However, the student argued that the case was within the jurisdiction of state courts because he is not alleging a Title IX violation and all the claims of the suit are based on North Carolina law, according to his Dec. 2 motion to remand. The student requested that Duke pay attorney and legal fees to remand it to Durham County Superior Court.
Duke responded to the request Dec. 23 arguing that the case falls under federal jurisdiction because it deals with the University’s adherence to Title IX and the student’s fairness and negligence claims are not recognizable under North Carolina law. They also cited an affidavit filed Oct. 29 on behalf of the plaintiff by Brett Sokolow, higher education lawyer and president of the Association of Title IX administrators, in which he argues that the disciplinary process should have followed the updated Title IX regulations. In the event that the case is remanded to the Superior Court, Duke requested that the student’s request for fees be denied.
As of Jan. 14, the student continues to fight for the case to be remanded.
An initial pretrial hearing was held Jan. 21 and the case is now proceeding to discovery.
The plaintiff in this case is not the first student to sue the University over its handling of sexual misconduct cases. He is represented by Emilia Beskind, the same lawyer that represented former men’s soccer player Ciaran McKenna, Trinity ‘19, in a breach-of-contract suit. McKenna was initially suspended for six semesters but was reinstated after a judge permanently barred the University from taking disciplinary action regarding the assault claims.
Lewis McLeod, Trinity ‘17, also previously sued the University over how it handled an allegation against him. Ariana Qayumi filed suit in 2016 alleging that the University mishandled a sexual assault complaint she filed.
According to a 2018 Duke survey, an estimated 48% of female undergraduates and 13.5% of male undergraduates have experienced sexual assault since arriving at Duke.
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Nadia Bey, Trinity '23, was managing editor for The Chronicle's 117th volume and digital strategy director for Volume 118.