Durham County

Does Duke's new sexual misconduct policy protect the students or the school?

Duke Chapel
Duke Chapel rgronberg@heraldsun.com

Not even half a year after losing a court battle over them, Duke University has changed its student-discipline rules to give its student-affairs office more power in the handling of appeals in sexual-misconduct cases.

The latest edition of the Duke Community Standard in Practice says that if a student accused of sexual misconduct wins a campus appeal, the university’s Office of Student Conduct alone will get to decide whether to drop the case or continue pursuing the charge.

Previous editions of the rules going back to at least 2013-14 had given campus appeals panels at Duke the authority to throw out a case. This year’s change wiped out that authority.

Duke’s move sparked criticism from lawyers active in representing college students accused of sexual misconduct.

“The wording affects current students and shows them Duke is more interested in protecting itself than its students,” said Emilia Beskind, one of the attorneys who in February convinced Durham Senior Resident Superior Court Judge Orlando Hudson to block Duke’s attempts to suspend soccer player Ciaran McKenna for six semesters.

“It’s like watching a herd of goats train for the Kentucky Derby,” added Kerry Sutton, who represented UNC Chapel Hill football player Allen Artis in his ultimately successful attempt to fend off campus and criminal charges in a misconduct case on that campus. “They’re not lawyers. No matter how they phrase this process, it’s a judicial or quasi-judicial process and they need to treat it like that.”

The appellate-procedure clause was directly at issue in McKenna’s lawsuit, which argued that Duke officials didn’t follow published procedures in 2016 as they weighed a female student’s accusation that he’d had intercourse with her without securing her consent.

Hearing officers found him “responsible” for a violation of the university’s sexual-misconduct policy, but an appeals panel said it wasn’t sure they’d used the proper standard of proof to weigh the facts of the case. A second set of hearing officers again found McKenna responsible for a violation, and their ruling held up on appeal.

McKenna sued, and Hudson temporarily barred Duke from suspending him after Beskind and co-counsel Jay Ferguson pointed out the 2015-16 edition of the Duke Community Standard instructed appeals panels to “resolve” cases except if they saw a need to secure more witness testimony about what happened to inspire a charge.

Beskind and Ferguson argued the decision in McKenna’s case to have a second hearing amounted to double jeopardy.

Previous versions of the Duke Community Standard, and the one for the 2016-17 academic year, gave appeals panels the authority to either resolve cases or send them back to the Office of Student Conduct or hearing officers for further review.

The new version eliminates its resolution authority entirely, with the Office of Student Conduct now holding all power after a student’s successful appeal to decide to drop a sexual-misconduct case, ask the original set of hearing officers to reconsider its decision, convene an all-new set of hearing officers, alter the list of charges or “(re)implement any aspect of the disciplinary process.”

Regardless of the path chosen, “a different decision” on whether or not the accused student violated policy “may subsequently result,” it says.

On its face, the wording sets up the theoretical possibility a student could be accused of misconduct, be found responsible, appeal, win on appeal and then face a never-ending string of new hearings, new finding and new appeals.

Campus officials tinker with the wording of Duke Community Standard every year, particularly with its sexual-misconduct section. An explanation for this year’s change wasn’t immediately forthcoming. “We’re always reviewing our practices and adjusting as appropriate and necessary,” said Larry Moneta, Duke’s vice president for student affairs.

Sutton contends the issue speaks to a deeper problem at Duke.

“We work with student-conduct offices all over the country, from Stanford to Florida,” she said, alluding to the practice she and fellow attorney Stephen Lindsay have built up in the field of Title IX law. “Duke’s is honestly the most difficult to work with.”

The situation is frustrating because “they have one of the finest law schools in the world not even half a mile from where they sit,” she added. “Why not use those resources?”

Sutton said she thinks a solution come from a legal trade group, the American Bar Association, that’s in the midst of drafting a set of model guidelines on “college due process rights and victim protections” for campuses to use in sexual-misconduct cases.

An ABA task force that came up with the still-a-work-in-progress recommendations includes Pamela Bernard, Duke’s general counsel. Bernard declined an interview request.

Having a nationwide model would mean lawyers “don’t have to go to every campus and re-create the wheel,” Sutton said.

This year’s change to the Duke Community Standard doesn’t affect McKenna’s lawsuit, which turns entirely on the document’s wording as of the 2015-16 academic year, when the incident that sparked the campus charges against him occurred. The lawsuit remains pending, with Hudson’s order keeping McKenna in school in the meantime. He also has resumed his place on the soccer team.

Beskind the issues surrounding sexual-misconduct cases and their handling on campuses are “an incredibly complicated and emotionally charged discussion.”

“I don’t think I have an answer for what the best practice would be,” she said when asked about Sutton’s hopes for the ABA model. “But if you get to write your own rules, the least you can do is follow the rules you’ve written. You have to start there.”

Ray Gronberg: 919-419-6648, @rcgronberg