Nearly two years after an undergraduate conduct board found Lewis McLeod responsible for sexual misconduct, his lawsuit against the University and administrators has been delayed a second time.
McLeod, who entered Duke with the Class of 2014, was expelled after a hearing by the Office of Student Conduct found him responsible for sexual misconduct following a female freshman’s report that she was sexually assaulted by McLeod in November 2013. McLeod appealed the decision, but a Duke appellate board upheld the decision in April 2014.
McLeod—who is the first Duke student known to be expelled for sexual assault—filed a preliminary injunction against the University in May 2014, arguing that his expulsion came after an unfair investigation and hearing. He is now suing the University for his diploma and damages.
His trial in the Durham County Superior Court—which was originally set to begin in February 2015 then rescheduled for Feb. 1, 2016—has been postponed again, with a new court date not yet set, wrote Michael Schoenfeld, vice president for public affairs and government relations, in an email.
He noted that the University does not comment on pending litigation.
The trial was first delayed in December 2014, when McLeod’s legal team added three additional defendants to the suit: Sue Wasiolek, assistant vice president for student affairs and dean of students, Stephen Bryan, associate dean of students and director of the Office of Student Conduct and Celia Irvine, a psychologist hired by Duke to conduct an independent investigation for the student conduct hearing.
The amended complaint focuses on Duke’s decision to hire Irvine—who, according to the filing, was “incompetent, capricious and lacked fundamental fairness.”
According to the complaint, Irvine’s psychology license does not permit her to conduct such legal investigations in North Carolina. It notes that Wasiolek was responsible for interviewing and retaining Irvine, and alleges that the University knew she was not licensed when Irving was hired.
“It kind of begs the question of why Duke hired her,” Rachel Hitch, who serves as McLeod’s lawyer, told The Chronicle in February 2015.
Hitch, Irvine and Bryan could not be reached for comment in time for publication.
McLeod’s case began in November 2013, when a female freshman student reported being sexually assaulted by McLeod, who was then a senior, according to the civil suit.
The two students met at Shooters II Saloon and left in a cab together, which dropped both students off at McLeod’s off-campus residence, where the two engaged in sexual intercourse. McLeod claims this was consensual, while the female student alleges it was not consensual, and that she made it clear she did not wish to continue.
The female student reported the alleged rape to both the University and the Durham Police Department the following day, according to the complaint. However, the DPD investigation into the matter was soon closed without charging McLeod because of the female student’s “lack of cooperation.” The case then went through Duke’s disciplinary process.
McLeod’s complaint alleges that the University’s investigation of the misconduct was “sloppy,” and that the Office of Student Conduct hearings “violated Duke University’s own written standards for sexual misconduct and student disciplinary hearings, as well as all notions of fundamental fairness.”
The filing also accuses the University of violating some of its own policies regarding student conduct hearings, including failing to give McLeod the then-unpublished sexual misconduct policy and copies of the evidence that was going to be presented. Duke had changed its policies in Summer 2013 to include expulsion as the recommended sanction for sexual assault.
The suit additionally claims that the panel relied heavily on anonymous witnesses in arriving at their finding, while it “interrupted, ignored and did not solicit significant testimony” from witnesses called on McLeod’s behalf. The complaint states that one student, who was the last person to have contact with McLeod and the complainant before the alleged attack, was not allowed to speak at all.
The complaint also alleges that at one point the female student said that she wanted the charges against McLeod dropped, but Bryan withheld this information from the panel.
One contentious allegation in the filing is that the hearing panel improperly used “intoxication” rather than “incapacitation” as the standard for inability to give consent. Both students admitted to being intoxicated at the time the assault allegedly took place.
McLeod’s expulsion was the first conducted under the University’s new sexual misconduct policy, which was updated in the Summer of 2013 and listed expulsion as the default sanction for sexual misconduct. The policy was later revised in 2014, and again in 2015. Hitch previously said that the University was looking to prove that it was harsh on sexual misconduct by clarifying the policy.
“Duke was looking to expel the first kid under that new practice to show how tough they were on sexual assault,” Hitch told The Chronicle in February 2015. “Fairness to Mr. McLeod was not a priority.”