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KC--Reflections on Judge Beaty's rulings
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Topic Started: Apr 3 2011, 11:24 PM (536 Views)
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Quasimodo
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Apr 3 2011, 11:24 PM
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MONDAY, APRIL 04, 2011
Reflections on the Beaty Rulings
A few comments about last week’s rulings from Judge Beaty. In general, the rulings seemed like very good news for the falsely accused students and a very bad development for the triumvirate of Durham, Nifong, and DNA Security. For Duke and the unindicted lacrosse players, the results were more of a mixed bag. Given that Duke’s pre-March 31 strategy of avoiding good-faith negotiations was based on an apparent confidence in achieving total victory at the motion to dismiss stage, this outcome wasn’t good news for the university. A final broad point: though I disagree strongly with one aspect of Judge Beaty’s ruling (regarding his broadening of the Love precedent), his three memoranda were remarkably thorough and well-reasoned, and suggested he understands the case well.
(snip)
Duke’s Victories
Duke already has settled with the three falsely accused players for, according to Raleigh Metro, an eight-figure amount—not exactly an approach a university that doesn’t fear legal liability takes. That said, there’s no evidence that the institution has made any changes to address the kind of problems that mandated this massive settlement.
In the Carrington rulings, Duke’s most clear-cut victory also represented a tremendous setback to student rights throughout the 4th Circuit. Citing the precedent of Love (which involved a far, far narrower set of allegations), Beaty dismissed a breach of contract claim to hold Duke liable for failing to enforce the terms of its faculty handbook (all students must be treated with respect) and student bulletin (harassment against students won’t be tolerated).
He argued that, under Love, documents like the bulletin and handbook aren’t contracts. In other words: universities can use them to enforce judgments against students, but when universities don’t live up to their provisions, students have no legal recourse.
And since it would be hard to imagine a more clear-cut case of lack of respect (the Group of 88 statement with false assertions of departmental endorsements, the Houston Baker letter, Tim Tyson protesting outside the captains' house) or harassment (both in-class and on campus) than the lacrosse case, Beaty’s ruling fortifies and expands the Love precedent, and essentially means that students anywhere in the 4th circuit are out of luck on this line of response when activist faculty or favored elements in the student body go after them.
(By the way, historians aren’t supposed to make predictions, but I’ll offer one here: Duke won’t amend its student bulletin or faculty handbook to make clear to current and prospective parents that the university can violate these documents at will, if enforcing their provisions would require the administration to alienate activist faculty members on campus.)
Two other aspects of Beaty’s ruling reflected current law, but his findings seemed intellectually counterintuitive. First, he dismissed one claim against Duke on grounds that in North Carolina “no basis to support the contention that a sexual assault nurse examiner owes a duty to the general public, or to individuals who are members of the public who may subsequently be targeted during a police investigation,” on grounds that the SANE nurse has a “primary duty to the patient.” Yet in our legal system, the SANE essentially functions as an agent of the state, with a job of collecting and interpreting evidence for possible use in trial. If, in fact, such a figure owes no duty to the general public, then perhaps the general public should assign to SANEs a less significant role in criminal prosecutions.
Second, Beaty dismissed another claim against Duke on grounds that, under relevant case law, students have no expectation of privacy regarding their keycard information. This finding reflects the Supreme Court’s strained interpretation of privacy rights, but my sense is that most students would find it jarring to discover that they have no privacy rights regarding the electronic record of when they come and go from their dorms.
Duke’s Defeats
Duke’s defeats outweighed their victories—in what senior administrators must have regarded as a premature April Fool’s joke, Beaty allowed multiple claims of conspiracy and obstruction of justice, fraud, and negligent supervision to proceed against the University and its employees. His ruling also offered a rather . . . negative . . . review of how the Duke faculty approached the case.
On one fraud claim—which comes out of Duke’s having given the DPD access to its students’ keycard information without a warrant, in apparent violation of FERPA; and then lying about it when Nifong subsequently requested a court order for the information, which Judge Titus denied—Duke seems extremely vulnerable. (Duke has never explained why it didn’t notify the lacrosse players that the university had improperly shared their student data with the DPD.) And whether the university being held civilly liable for violating FERPA would prompt some federal accompanying actions remains an open question.
On the medical front, Beaty’s rulings clearly focused attention on former SANE-nurse-in-training Tara Levicy, whose willingness to constantly alter her story to fit Nifong’s needs played such an important role in keeping the case alive. He dismissed claims against Levicy’s supervisors—but they weren’t the figures who obviously committed misconduct in this case. And, perhaps most troublingly for Duke, his ruling invited the plaintiffs to establish a connection between Duke and Levicy’s unusual behavior.
Administratively, Duke itself and President William Brodhead as an individual remain potentially liable for fraud and negligent supervision—meaning that depositions and discovery will commence, presumably to include Brodhead’s emails. And Beaty suggested that the negligent supervision claim could provide the avenue he seemingly blocked by dismissing the breach of contract claim to examine why the administration stood aside meekly as activist faculty members chose to exploit their students’ difficulties.
(snip)
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Quasimodo
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Apr 3 2011, 11:26 PM
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What Discovery Should Reveal
The path laid out by Beaty’s rulings strongly suggested that—one way or the other—the discovery process will provide answers to a few lingering questions from the case, namely:
(1) When, precisely, did senior members of the Durham Police Department (and City Manager Patrick Baker) elect to allow Mike Nifong to assume personal command of the police investigation? Why did they do so? And why did they not step back in to establish normal processes when Nifong ordered the DPD to violate its own procedures and run a suspects-only lineup?
(2) When, precisely, did senior members of the Duke administration, including Brodhead and former BOT chairman Bob Steel, learn of former SANE nurse-in-training Tara Levicy’s involvement in the case? And why did they not step in to establish normal processes when Levicy started violating regular SANE procedures by changing her story to fit Nifong’s tale and providing the police with information not contained in her written report?
(3) When, precisely, and for what reason did Duke establish its students’ presumption of innocence as one of the two pillars of the university’s policy, as Brodhead subsequently, and misleadingly, claimed? We know that one senior administrator, Larry Moneta, told Samantha Ekstrand on tape that he did not believe the players were innocent; and we know that in his April 5, 2006 open letter, Brodhead made no mention of a presumption of innocence. By June, he would do so: had university counsel grown concerned with the possibility of civil suits?
(snip)
So is this what it’s come to in this case? The university’s spokesperson says Duke “hoped” for an outcome in which multiple claims of conspiracy and obstruction of justice, fraud, and negligent supervision would go forward; and a Duke apologist compares the intellectual diversity of his former university’s activist faculty to that of a blog’s commentariat.
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Payback
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Apr 3 2011, 11:29 PM
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"And Beaty suggested that the negligent supervision claim could provide the avenue he seemingly blocked by dismissing the breach of contract claim to examine why the administration stood aside meekly as activist faculty members chose to exploit their students’ difficulties."
Can you put this in simple words, Quasi?
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Quasimodo
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Apr 3 2011, 11:39 PM
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- Apr 3 2011, 11:29 PM
"And Beaty suggested that the negligent supervision claim could provide the avenue he seemingly blocked by dismissing the breach of contract claim to examine why the administration stood aside meekly as activist faculty members chose to exploit their students’ difficulties."
Can you put this in simple words, Quasi?
"Administratively, Duke itself and President William Brodhead as an individual remain potentially liable for fraud and negligent supervision"
Beaty almost let Duke off the hook by dismissing plaintiffs' claims of Breach of Contract; but the plaintiffs will still be able to depose Brodhead and co. about their actions, because the claims against them for negligent supervision still remain.
And that means the administration can still be asked, among other things, why it permitted the Gang of 88 to attack Duke's own students.
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Payback
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Apr 3 2011, 11:47 PM
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Thanks, Quasi. That makes it clear!
I should have pointed out that KC mis-typed Brodhead's name before we repeated it.
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Quasimodo
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Apr 4 2011, 12:03 AM
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- Apr 3 2011, 11:47 PM
I should have pointed out that KC mis-typed Brodhead's name before we repeated it.
William Brodhead?
But then, "A Brodhead by any other name...
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kbp
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Apr 4 2011, 12:24 AM
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And since it would be hard to imagine a more clear-cut case of lack of respect (the Group of 88 statement with false assertions of departmental endorsements, the Houston Baker letter, Tim Tyson protesting outside the captains' house) or harassment (both in-class and on campus) than the lacrosse case, Beaty’s ruling fortifies and expands the Love precedent, and essentially means that students anywhere in the 4th circuit are out of luck on this line of response when activist faculty or favored elements in the student body go after them.
??????? That's giving Beaty's ruling quite a bit of weight in the circuit. It hasn't been appealed, has it?
A faculty handbook, to me, is about 2 degrees or more outside of being a part of a contract between Duke and a student (student / Duke > faculty > handbook).
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