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http://dukecheck.com/

On February 11, 2007, a black Duke fraternity, Phi Beta Sigma, held a party off-campus, at a duplex in the Bentwood apartment complex at 405 Gattis Street. Advertised on Facebook, 100 people attended.

There were a few white people there, including an 18-year-old Duke freshman from Long Island, New York, Katharine Rouse. Another was a 22-year-old black man from Durham, with no connection to the University, Michael Jermaine Burch.

The Durham prosecutor said there was evidence the two were dancing and then making out. Both seemed intoxicated from a punch that was served at the party.

Rouse went to the bathroom. Burch followed her in. The two kissed again, and according to the freshman, she told him she did not want intercourse but he would not stop. A search warrant indicates that others at the party — wanting to use the bathroom — could not get in for perhaps an hour, and that they heard “thumping” from inside.

[Shouldn't the university inquire why no one tried to "intervene"?]

Please remember this was 2007, the year after false charges of rape were brought by Crystal Gail Mangum, a black go-go dancer, against three white members of the Duke lacrosse team. And it was two months before the North Carolina State Attorney General would declare the lax players “innocent” and victims of a “rogue prosecutor.”

The atmosphere was still tense.

The criminal case that grew out of Rouse’s statements did not go to trial. Burch copped a plea on a rape charge, and we will get back to that in a moment.

Rouse made a number of legal claims against Duke, and one by one, they were dismissed. The final blow to her lawsuit at the trial court level came last December when a federal judge in Greensboro threw out what remained.

Rouse appealed to the Federal Circuit Court of Appeals in Richmond, and a three judge panel has just unanimously ruled in favor of the University. For practical purposes, although there can be some legal wrangling including a request to the US Supreme Court for a hearing (good luck), the case is over.

We have long had difficulty understanding the legal basis for Rouse’s lawsuit.

Duke got some of the lawsuit dismissed in short order because it was filed too late, colliding with the statute of limitations, so some of Rouse’s assertions were never developed in court.

Another part seemed to revolve around her voluntary transfer from Duke and then a desire to get back in, which Duke denied. Rouse contends she did not know transferring out did not let her to get back in automatically; Duke disputed that, citing its published policy manual and also advice given her by the Dean who handled her case. (Ironically in other litigation, Duke has maintained its policy manual does not constitute a contract with students)

Other parts of Rouse’s lawsuit alleged Duke somehow violated federal law by tolerating an improper atmosphere: it did not penalize the fraternity, it did not help her. All because she was female.

But federal law requires a “severe and pervasive” environment to sustain a lawsuit based on sexual discrimination. The best evidence Rouse could assemble revealed that President Brodhead’s refused to meet with her, delegating the task to Vice President for Student Life Larry Moneta; Rouse claimed this lack of presidential attention met the statutory requirements, the Appeals Court disagreed sharply.

(snip)

And Burch: arrested on the Duke charges, while out on bail awaiting trial, he was charged with a second rape. And the prosecutor let him to cop two pleas. With time off for good behavior, he got out of state prison last January 27th.

Footnotes: Duke started to pay rough with Rouse, demanding she pay more than $10,000 that Duke spent to get copies of legal papers in the case. We have no new information on the status of this.

Normally we do not identify victims of crime. Rouse herself stepped into the public eye with an interview with her hometown newspaper on Long Island.[/small]

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OPINION

[none of the same judges who heard the lax case appeals took part in this hearing]

(snip)

Rouse contends first that she is entitled to a jury trial
on her Title IX claim, including an argument that Duke failed to
investigate her rape and “excluded her from its educational
program and denied her of its benefits by refusing to make
reasonable modifications to its policies that were necessary to
accommodate her inability to remain on campus as a result of the
rape and Duke’s indifference to it.”

Duke responds that the
district court correctly granted it summary judgment “because
[the Title IX] claim is time barred, because Duke cannot be held
liable under Title IX for the off-campus rape of a student by an
unaffiliated third party, because Duke did not sexually harass
Ms. Rouse, cause any sexual harassment, or make her more
vulnerable to it, and because Duke’s response to the rape was
not clearly unreasonable.”

The statute of limitations for Rouse’s Title IX claim is
three years, as borrowed from state law.

Because Rouse
commenced this action on December 17, 2010, the only alleged
events falling within the applicable three-year period of
limitations are (1) Dean McKay’s December 18, 2007 form letter
informing Rouse that she could not seek re-enrollment at Duke
and (2) Rouse’s father’s inability to secure a meeting with
President Brodhead. But neither of those acts contributed to
the hostile educational environment based on sex on which Rouse
bases her Title IX claim.


Dean McKay’s form letter, confirming Rouse’s request to
transfer, was routinely used by Duke’s academic deans and was
based on a generally applicable transfer policy, that was
publicly available on the internet. Moreover, Dean McKay’s form
letter was substantially similar to letters that she sent to
other students who had stated they were transferring from Duke.
In sum, the undisputed facts establish that Duke followed its
ordinary policy in sending the letter in response to a transfer
request.

[Except that perhaps Rouse's request to transfer was based on unusual
circumstances?]

Moreover, the letter directed Rouse to contact the Academic
Advising Center by phone or email if she had questions about
Duke’s transfer policy. Rouse did neither. And although Rouse
alleges that Duke misapplied the transfer policy to her because
she was not enrolled at another school at the time she received
the letter, Rouse did not request to re-enroll at Duke before
she transferred. Indeed, Rouse testified that at the time she
received the letter she “did not have a desire to go back” and

did not even think about returning to Duke until more than a
year later. At that point, she had already been enrolled at
Hofstra. Thus, the letter did not contribute to the hostile
environment claim.

[She was a rape victim; maybe she should have deserved a bit more
consideration? Of course she could have been conflicted about going
back. Whether that claim has merit or not, Duke surely might have
considered handling her case as "special" rather than "ordinary", imho.]

That leaves Rouse’s father’s inability to secure a meeting
with Duke’s President Brodhead. Rouse asserts that although
Vice President Moneta promised to confer with President
Brodhead, President Brodhead never agreed to meet with her
father, and she was therefore unable to seek re-enrollment. But
Rouse does not assert that she was unable otherwise to
communicate with Duke or to request an exception to Duke’s
generally applicable transfer policy. Indeed, she identifies no
evidence suggesting that she ever expressed her desire to reenroll to Duke.
A university president sending a high-level
designee to a meeting and himself not meeting does not
constitute a contributing act to a hostile environment claim.

Because the acts not barred by the statute of limitations
do not rise to the level of acts contributing to a Title IX
claim, the district court properly dismissed Rouse’s Title IX
claim.

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As to the state law claims for breach of contract,
intentional infliction of emotional distress, and negligence,

the district court dismissed them as being barred by the
applicable statute of limitations except for the claims that
might arise out of Dean McKay’s December 18, 2007 letter. Rouse
did not appeal this application of the statute of limitations.

She also did not appeal the dismissal of her claim for negligent
infliction of emotional distress.

[If the Duke players couldn't get their claim for infliction of emotional distress
recognized, then such a claim cannot be pursued in the Fourth Circuit...the requirements
are too high. ]

As to the letter’s support of a breach-of-contract claim,
Rouse contends that “[a] reasonable jury could conclude that
Duke breached its educational contract . . . by applying its
provisions governing students who enroll as degree-seeking
students in another institution” to her when she was not
enrolled or admitted at another institution. Rouse also argues
that “in misapplying the transfer policy to her . . . Duke
breached an implied covenant of good faith and fair dealing.”

We disagree. Duke merely followed its standard procedure

[Was the case of a rape victim one calling for the following of "standard procedure"?]

of sending a confirming letter after it received a formal
expression of an intent to transfer, which Rouse pursued by
attending Hofstra. Indeed, she did not even think of reenrolling at Duke until the spring of 2009, after she had
already been enrolled at Hofstra for a year. Accordingly, we
affirm the district court’s dismissal of the breach-of-contract
claim.

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As to Rouse’s claim for intentional infliction of emotional
distress, the district court concluded:



[T]he record does not establish any basis for finding
that Ms. Rouse suffered severe emotional distress as a
result of Dean McKay’s letter. . . . [T]here is no
evidence that Dean McKay coerced, duped, or tricked
Ms. Rouse into transferring from Duke and forfeiting
her ability to reenroll. . . . Dean McKay’s actions do
not amount to extreme and outrageous conduct.

[If the conduct (and statements ) of Duke officials during the lacrosse
case were not considered sufficient to result in emotional harm,
then nobody can claim emotional harm in the Fourth District; because
the standards are too high.]

The record supports these conclusions, and we therefore affirm
the dismissal of that claim.


Finally, as to Rouse’s negligence claim, the district court
concluded:

Since Ms. Rouse told Dean McKay that she wanted to
transfer, Dean McKay had no reason to believe Ms.
Rouse would want to re-enroll at Duke, and Ms. Rouse
did not at the time have any intention to return to
Duke, Ms. Rouse cannot show that Duke violated any
duty of care in sending the letter or that the letter
caused her any reasonably foreseeable injury.

These conclusions are fully supported by the record and again,
we affirm the district court’s dismissal of that claim.
Rouse’s claim for punitive damages obviously cannot stand
with the dismissal of her other claims for compensatory damages.
See N.C. Gen. Stat. § 1D-15(a).
* * *

For the foregoing reasons, we affirm the judgment of the
district court. We dispense with oral argument because the
facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the
decisional process.

AFFIRMED