http://www.heraldsun.com/news/witness-lawyer-spar-over-duke-discipline-system/article_72c4c72a-ef18-11e6-89b7-1b04c0754246.html Witness, lawyer spar over Duke discipline system
Ray Gronberg 1 hr ago
DURHAM -- Day two of an injunction hearing with student rights implications saw a Duke University professor continue to insist the school wronged a member of its men’s soccer team by subjecting him to double jeopardy over a sexual-misconduct complaint.
The professor, James Coleman
of the Duke School of Law, maintained under cross examination that instead of putting student Ciaran McKenna through what amounted to two trials
, a campus appellate tribunal should have resolved and ended the case as soon as it decided the first was marred by a serious procedural error.
“There should never have been a second hearing panel,” Coleman told Duke’s chief lawyer, Paul Sun. “That’s the point.”
McKenna and his lawyers, Jay Ferguson and Emilia Beskind, are contesting a six-semester suspension handed down last month in the wake of the second campus trial and an unsuccessful appeal. A native of Great Britain, Scotland specifically, he faces losing his visa and with it his right to remain in the U.S. if he can’t remain enrolled.Coleman -- known nationally for his role in helping administrators deal with 2006’s notorious Duke lacrosse case,
and in the state as an advocate for prison inmates who say they’ve been framed by police -- became McKenna’s adviser during the campus appeals process.
Coleman stepped in at the request of Duke’s athletic department.
The case grew out of a November 2015 sexual encounter between McKenna and another then-freshman, a woman he danced with at Durham’s Shooters II nightclub and later accompanied to her dorm room.
By all accounts, the two engaged in consensual sexual activity, but the campus disciplinary process turned on the question of whether the woman consented to intercourse. Coleman and McKenna’s lawyers argues that she did, through her actions. The second Undergraduate Conduct Board hearing panel decided she didn’t, through both her words and actions.
The hang-up is that the first Undergraduate Conduct Board panel said it was “not unanimously convinced” the woman had withheld consent for intercourse. It did, however, find McKenna “responsible” for misconduct on the grounds he’d “relied on her failure to object” instead of making sure she agreed.
To Coleman, the first panel’s ruling on the question of verbal consent should’ve taken that issue off the table from that point on in the disciplinary process, leaving it a matter of whether the woman consented through her actions.
On appeal, campus officials ruled the board hadn’t weighed the facts through the eyes of the proverbial “reasonable person” Duke and many other universities consider the benchmark for judging student behavior. But rather than apply the standard to the known facts and deciding the case itself, it sent the matter back to Duke’s Office of Student Conduct, which wound up calling for a second trial.
Coleman argues that move compounded the first trial panel’s mistake. He points to language in the campus disciplinary code -- the Duke Community Standard -- that says an appeals panel should resolve a case, sending it back down only if “more information is needed” from additional witnesses.
Representing Duke, Sun appeared to focus more on the question of whether the second trial board was within its authority to consider the issue of verbal consent.
The woman and McKenna agree she told him before intercourse that she was a virgin. She contended, and the second trial board agreed, that that was a signal of non-consent, one that at the least required McKenna to seek “additional confirmation” of her willingness before going ahead.
Sun’s cross-examination of Coleman signalled that he’s likely to argue because sexual-misconduct rulings come down to an either-or answer on whether a student’s “responsible” or not, the second trial board was entitled to consider the woman’s words and actions both.
He so far hasn’t addressed the issue of whether there was need for more fact-finding, the point Coleman argues is central to the case.
In framing it that way, Coleman was putting it in terms familiar to Senior Resident Superior Court Judge Orlando Hudson,
who’s presiding over the lawsuit and has to decide whether to issue an injunction forcing Duke to keep McKenna in school.
At this point in the state-court process, Hudson is the main fact-finder. His take on what happened would generally be accepted as true in any higher-court review.
To date, Hudson has listened, and said little to tip his hand. But at the end of Thursday morning’s hearing, he noted that Duke traditionally doesn’t regard the due-process guarantees in its student handbooks as contractual.
“I’ve heard Mr. Sun argue that many times,” Hudson said alluding to prior court cases that have touched on the point.Departing from prevailing legal custom elsewhere in the U.S.
, North Carolina appellate courts generally don’t consider student handbooks and other materials part of a private university’s contract with students.
They base that on an analogy to state labor-relations law, which many legal observers believe favors management.
Being an arm of the government, public universities have to honor federal and state due-process guarantees. Courts here have long held they can’t depart from published student-discipline procedures. The key case there grew out of an early 1980s incident in UNC Charlotte’s nursing school, and wound up in front of a federal appeals court that sided with a student who’d been accused of cheating.
But a 2013 case hinted that state appellate judges may reconsider their opinion of how binding things like the Duke Community Standard are on private universities. A challenge to Duke’s disciplinary process that year produced a split opinion at the N.C. Court of Appeals level, and a 3-3 deadlock on the N.C. Supreme Court that sided with the university by default. The tie came because one justice sat out the case.
Ferguson said he believes Duke has made binding promises to McKenna, via the NCAA letter-of-intent and Duke scholarship contracts he signed on the way to joining the soccer team.
The scholarship agreement included a clause that said he could lose aid if he receives a “disciplinary penalty as determined by Duke’s regular student discipline authority.”
In an affidavit, McKenna said he’d taken that to mean “I could attend Duke unless and until Duke, following their student disciplinary process, determined that I had engaged in misconduct.”
“I believe Duke has not honored that agreement,”
by not following normal procedure, he added.
The injunction hearing will resume early next week. Prospective witnesses include Stephen Bryan, director of the Office of Student Conduct
, and Tim Bounds, a student-affairs official who chaired the two campus appeals panels.
Follow Ray Gronberg on Twitter @rcgronberg