Duke University and would-be graduate Lewis McLeod are on their way toward settling a long-running lawsuit that alleges the university mishandled a 2014 sex-misconduct disciplinary hearing.
Lawyers from both sides conferred Monday, striking a deal shortly before 3:45 p.m.
“I’m pleased to report that we have able to resolve our differences, among all the parties, to the point that we do not require court involvement any further,” Duke lawyer Dan Hartzog Sr. told Superior Court Judge Henry Hight.
“Great, thank you,” Hight responded.
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The prospective settlement still requires a couple of weeks’ worth of paperwork before it’s final. Hartzog and McLeod’s lawyer, Rachel Hitch, declined to discuss the terms.
“There’s nothing I can tell you,” Hitch said. “I’m sorry.”
McLeod sued Duke in 2014 after campus officials tried to expel him. He’d been found responsible for sexual misconduct stemming from an encounter with a first-year student he’d brought home to a Burch Avenue fraternity house.
He alleged the campus hearing was rife with errors and that Duke was breaking a contract with him by failing to give him the fair hearing promised by its student-discipline handbook, the Duke Community Standard in Practice.
Duke countered with its long-standing argument, anchored in state-court doctrine, that the handbook isn’t a part of the university’s implied or actual contract with students. Courts here since the early 1980s have agreed public universities have to honor the procedural guarantees they make in their disciplinary handbooks. But they haven’t extended the principle to cover private universities, unlike their counterparts in many other states.
Hartzog last week asked Hight to dismiss McLeod’s lawsuit. The judge was supposed to rule on that motion Monday, setting the stage either for a trial if he sided with McLeod or for an N.C. Court of Appeals review if he sided with Duke.
But things never got to that point. The two sides gathered at 10 a.m. and Hartzog immediately told Hight the two sides were having talks. The judge told them to take their time, and eventually decided everyone should come back after lunch.
They reconvened at 2:30, with Hartzog telling Hight the lawyers had spent lunch working “with our respective clients trying to deal with some things.” He asked for more time.
“I’ll be upstairs,” Hight said. “Take whatever time you need.”
Settlement eliminates McLeod’s case becoming a precedent that either reinforces or overturns the existing cases that regard private-university discipline-handbook promises as non-binding unless they’re part of an actual contract package the student and campus officials have signed.
Hitch predicted during last week’s hearing that Duke might settle if Hight ruled against them, precisely to avoid the risk of losing on the bigger issue somewhere down the line.
The N.C. Supreme Court considered overturning the existing doctrine in 2013, in connection with another Duke disciplinary case. But the justices deadlocked 3-3 after one of their colleagues, Barbara Jackson, recused herself.
Hight didn’t do much to tip his hand during last week’s four-hour hearing on Duke’s motion. But he noted the obvious point that a student at a public institution like N.C. State University has more protection than one at a place like Duke, and said the university’s stance invites the assumption that “he who has the gold makes the rules.”
McLeod faced expulsion in 2014 just as he was getting ready to graduate. He’d finished all his coursework, and off-campus legal action was already underway when he finished his exams. Duke has insisted throughout the litigation on its right to withhold a degree. On the flip side, securing it has been one of the lawsuit’s primary objectives.
Hitch’s refusal to confirm the details of the settlement included whether Duke has now agreed to give McLeod a degree. Hartzog referred questions to Duke’s chief spokesman, Vice President for Public Relations and Government Affairs Michael Schoenfeld, who echoed the lawyer’s assessment that the “parties have settled their differences.”
Normal procedure at Duke calls for both the university faculty and the campus trustees to sign off on decisions to award a diploma.
Hight let McLeod approach the bench to shake his hand at the end of Monday’s hearing. The judge, who’s based in Vance County, also said he’d “spent more time reading and going through this case than any one I’d ever had.”