Duke's Upcoming Liability, or Richard Brodhead Needs to Find a Good Lawyer

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Even though the criminal case against the three Duke lacrosse players has not yet been deep-sixed, the lawsuits against Duke University have begun. The family of Kyle Dowd, a lacrosse player who was graduated last spring, filed against the university and a faculty member, Kim Curtis, claiming that Curtis failed Dowd in retaliation for his being on the lacrosse team.

Curtis, who is a visiting professor in Duke’s political science department, has a reputation for being a leftist ideologue, and was one of the 88 signers of the infamous "social disaster" advertisement in the Duke Chronicle that thanked the protesters who acted in the aftermath of the charges levied against the lacrosse players. Furthermore, Curtis actively participated in a number of rallies in which protesters held up signs calling for the lacrosse players to be "castrated," while other signs declared: "Get a conscience, not a lawyer," and others just declared: "Confess!" Her postings on a community web site (not available here, but I have read them) left no doubt that she believed her students either committed rape or at the very least were covering for the alleged rapists.

To gain a picture of what the Duke University lacrosse players experienced last spring as they walked through a literal gauntlet on their way to class, envision the following things:

  • Students holding signs declaring: "Castrate";
  • Speakers at regular rallies calling for their expulsion;
  • Students screaming slogans at them;
  • The New Black Panthers came to Durham and said they were going to the Duke University dorms where lacrosse players lived in order to get "confessions" from them;
  • A poster with the pictures of the white lacrosse players calling for them to "please come forward" and tell police who allegedly raped the accuser, Crystal Gail Mangum, was distributed and posted all over Duke’s campus, along with a "fact sheet" that we know today had no "facts" that were correct.

For the time being, people are trying to make this a "free speech" issue, but the situation is much deeper than that. Each year, college campuses all over the country host rallies such as "take back the night" marches against rape, and "stop the hate," and the like. Many of the topics covered in these rallies are controversial and clearly people are not in agreement, but for the most part they are general in nature.

What happens, however, when ideologies meet specific accusations? To use the words of the 88 Duke signees, one has a "social disaster." (A group called "Liestoppers," put its own advertisement in the Raleigh News & Observer last summer to point out that the real "social disaster" is the attempt to railroad innocent people into prison.) That is where the real liability for Duke University begins.

For all of the talk about free speech, Duke University also has a contractual obligation to its students, and that includes keeping them from being physically and verbally harassed by faculty and students. Assume that the objects of this wrath are homosexuals, and they are met with signs that mock them and have anti-gay slurs, or call for their sexual organs to be cut off. Furthermore, assume that the protest is not against homosexuality in general, but rather aimed specifically at certain males on campus who are gay.

The liability that Duke would face in the previously-mentioned example is the same liability the university undoubtedly faces now. Claims of grade retaliation, while having to be proven in the proper legal setting, are serious charges. Moreover, many lacrosse players quit attending classes altogether in April because some faculty members allegedly were calling them rapists in class or strongly hinted that the players were guilty of rape. The situation became so serious that the Duke administration literally had to send an email to faculty members reminding them that they were not free to do such things.

When one adds the intimidating atmosphere on campus, it is clear that Duke did not actively protect students who by law were under the presumption of innocence. As we have seen Michael Nifong’s case fall apart even more, we come to understand just how important the innocence presumption really is. After being accused not only of rape, but also of covering up a rape and then hiding behind a “wall of silence,” we understand now that the players did come forward and tell the truth, but the “truth” they told was not what the police, prosecutors, and apparently the powers that be at Duke University wanted to hear.

In the legal sense, it was Duke University itself that told the lacrosse players that they were rapists and killers. (One Duke professor wrote that the lacrosse players were like the people in Mississippi who murdered Emmett Till in 1955.) No, the president of Duke University, Richard Brodhead, did not say it, nor did anyone else in the administration directly declare the lacrosse players to be guilty.

However, under the standards of vicarious liability, the fact that the lacrosse players had to run a gauntlet each day, and they had to listen to themselves being called “rapists” in class and on campus, and the university did almost nothing to protect them, as though Brodhead did it himself. Perhaps that is unfair, but that is how the law works. In light of just how pathetic and dishonest a case that Nifong has been putting forth, Duke’s culpability seems even greater than one might imagine.

One hopes that this case will end soon, and charges will be dropped against three young men who never should have been facing them in the first place. Literally, every safeguard that the law supposedly has against wrongful prosecution was obliterated, and only because the players could afford expert legal help, and because an army of bloggers and writers were able to take Nifong’s case apart and not suffer legal sanctions for it have we been able to move to where we are today.

This also should serve as a warning to university administrators as to the importance of things like due process and legal presumption of innocence, not to mention the adoption of Political Correctness as the guiding light of university policy. Even if Duke University were to allow the Dowd and other upcoming lawsuits (and they surely will be coming, trust me) to go to trial, and even if the university were to appear before friendly Durham juries and win, the information that would come out no doubt would constitute a public relations nightmare. The world would be able to see firsthand just how badly Duke University treated students who told the truth, and how the university legally encouraged its campus to be a forum of lies.

Below are photographs of demonstrations that the lacrosse players faced each day they were on campus. The Duke administration did nothing to curb these excesses.

January 11, 2007

William L. Anderson, Ph.D. [send him mail], teaches economics at Frostburg State University in Maryland, and is an adjunct scholar of the Ludwig von Mises Institute.

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