Judge dismisses part of lawsuit against Duke

Dec. 06, 2012 @ 08:17 PM

A federal judge on Thursday gave Duke University another partial victory as the school tries to fend off a lawsuit from a former student who was raped at an off-campus party early in 2007.

U.S. District Court Judge Catherine Eagles dismissed an array of common-law negligence and breach-of-contract claims that former student Katherine Rouse had lodged against Duke.

The decision followed about 45 minutes of oral argument and left Rouse and her lawyer, Durham attorney Bob Ekstrand, only a Title IX gender-discrimination claim to continue with.

Even that was on shaky ground, as Eagles said she would “take … under advisement” Duke’s request that she toss it as well.

She promised lawyers she’d try to rule in advance of a pre-trial conference scheduled for Dec. 20. The conference would, barring a complete dismissal of the case, set the stage for the start of a jury trial on Jan. 7.

Rouse and Ekstrand sued Duke last year, complaining about the way campus administrators handled the aftermath of her February 2007 rape.

The suit claims Duke officials the following semester duped Rouse into transferring to Hofstra University, a move that under Duke policy meant giving up any further chance to pursue an undergraduate degree from the school.

It further contends that administrators created a hostile environment for Rouse by failing to investigate the fraternity that allegedly sponsored the party, and by failing to give her the chance to complete all her spring 2007 courses from her New York home as she recovered.

Eagles said the “biggest problem” with Duke’s dismissal request on the Title IX front is that she has to weigh the school’s post-assault actions.

Ekstrand argued that Duke shut down an investigation of the Phi Beta Sigma fraternity after learning that one of the school’s biggest donors, Chesapeake Energy Corp. CEO Aubrey McClendon, was the de-facto owner of the Gattis Street house where the assault occurred.

It should have been “very clear” to Duke that Rouse and her parents wanted officials to “investigate that fraternity and hold those people responsible for creating the environment that led to her rape,” Ekstrand told the judge.

Instead, he said, administrators shut down the probe for fear of embarassing McClendon, who via a shell corporation had bought the property three months before the incident.

Duke also likely acted knowing two of the house’s tenants had previously been charged with felonies, Ekstrand said, adding that that information had reached him in the evidence-gathering “discovery” process even though documents supplied by Duke had withheld their names.

As for the transfer issue, Ekstrand said Rouse had only intended to leave Duke for the spring 2008 semester. Instead, he argued, she was in effect “expelled” by school officials who said she wanted a full transfer.

Duke lawyer Paul Sun countered that for Rouse to win a Title IX claim, she has to prove there she faced a “severe and pervasive” hostile environment at Duke.

He contended that’s impossible under existing precedents in part because there’s no allegation that Phi Beta Sigma members harassed or even contacted Rouse after she reported the rape.

The university helped police track down her attacker, Michael Jermaine Burch, and provided counseling and other services to Rouse in the aftermath of the attack, Sun said.

A three-year statute of limitations also should knock out claims based on anything pre-dating Duke’s acceptance of Rouse’s transfer, Sun said, adding that it was “undisputed that Rouse said she intended to transfer and undisputed that she did transfer.”

Eagles hinted that Ekstrand’s argument about the investigation of Phi Beta Sigma might not suffice in her eyes to establish a Title IX claim. Via Sun, Duke has argued that it had determined that the fraternity had not in fact sponsored the party, despite the event’s Facebook ads to the contrary.

“You can argue all day long about whether they conducted an adequate investigation, but that’s not the issue,” Eagles told Ekstrand. “You have to have a hostile environment.”

Eagles also gave short shrift to an Ekstrand argument that Duke should have required two of Rouse’s professors to let her complete her coursework from home. She noted that federal judges usually give university officials latitude in such matters.

“We don’t really run universities in the courtroom,” Eagles said. “It sounds like that’s what you’re asking me to do.”

Durham land records, meanwhile, show that McClendon no longer owns the Gattis Street house. His shell corporation sold it early 2009, taking a $137,000 loss on the deal.

Eagles on statute-of-limitations grounds had previously tossed out a claim by Rouse against Duke Vice President Larry Moneta.