Duke’s handling of sexual assault reports under scrutiny

The University is currently facing a Title IX lawsuit brought by a former Duke student as well as two ongoing investigations by the U.S. Department of Education’s Office for Civil Rights into Title IX complaints. 

To date, the federal government has initiated over 300 investigations into dozens of colleges for potentially violating Title IX—the federal law that prohibits sex discrimination in educational settings. This month, the OCR opened a new investigation into Duke's handling of sexual misconduct reports, while a separate probe that was initiated in November 2015 remains open. Also this month, a former Duke student filed a Title IX lawsuit against the University, alleging the school mishandled her sexual misconduct complaint from several years ago. The OCR only releases the names of students who file complaints at the end of its investigations, so at this time it remains unclear whether the lawsuit and either of the two OCR investigations against Duke are connected. 

Sued by former student

In the female student's lawsuit—which was moved to federal court Aug. 9—she alleges that she was subject to a "drug-facilitated rape” by two other students, one of whom is the stepson of then-Provost Peter Lange, while they were all undergraduates. She reported the assault to University officials and the Duke University Police Department, as did other students against the same men, according to the suit. 

The plaintiff brought the issue to Duke's Office of Institutional Equity after the University's only sanction was putting Lange's stepson on probation July 12, 2013, the suit states. The OIE later issued a decision which concluded that the University's response was "sufficient to remedy the hostile educational environment that Plaintiff suffered as a result" and was "sufficient to meet its obligations under Title IX."

“Duke does not comment on pending litigation,” wrote Michael Schoenfeld, vice president for public affairs and government relations, in an email. “What we can say that the well-being of all our students is Duke’s highest priority. We follow a careful process when a sexual misconduct allegation is made, one that ensures we are responsive, thorough and fair as federal law and our own policies require.”

According to the lawsuit, the Office of Student Conduct hired Celia Irvine, an independent psychologist, to investigate multiple claims against the two male students. Her report, the complaint alleges, concealed evidence of sexual assault. Irvine could not be reached for comment in time for publication. 

“The purpose of Ms. Irvine’s report was to fabricate a basis for the University to not suspend, expel or remove [one of the accused students] from the University,” the complaint alleged.

Outside legal experts noted that in the female student’s lawsuit against the University, the plaintiff has the challenge of providing concrete evidence in support of her case.

“That can take many forms, anything from eyewitness testimony to video to text messages to voicemail messages to emails, something that corroborates or substantiates what the victim said occurred, so it's not just a 'he said, she said,’” said Andrew Boutros, a partner at the law firm Seyfarth Shaw LLP.

A video of the alleged assault was taken by Lange's stepson and seen by Duke Police investigators, according to the complaint.

Erin Buzuvis, a law professor at Western New England University, explained that the plaintiff has to show what is called “deliberate indifference” on the part of the University, which is different than just arguing that the University took insufficient action.

“The plaintiff needs to show intent, intent to not take action, like the University intentionally disregarded the problem,” Buzuvis said.

Parts of the complaint referring to Lange and Irvine could fit that definition, but only if proven, she said.

“The mere fact that this person is the Provost’s stepson does not tell you that was motivation to suppress a disciplinary response,” Buzuvis explained. “You would need to have some evidence that would show that affected the investigation.”

The plaintiff's attorney, Bob Ekstrand of Ekstrand & Ekstrand LLP, will likely look for such evidence, if it exists, during the discovery process before trial, Buzuvis said. Ekstrand declined to comment. 

Kerstin Sutton, a partner at Sutton & Lindsay PLLC and Lange's attorney, said the lawsuit’s implication that Lange did something improper was false. 

“There are no facts to support that in the complaint, and there will be no facts to support that because he did not do that,” she said.

Federal investigations

In addition, Schoenfeld confirmed Friday that the University is also facing a second Title IX probe by the Office for Civil Rights. Such probes, initiated by the federal government, are separate from and not necessarily related to lawsuits filed by private citizens. 

According to the Chronicle of Higher Education's database of Title IX investigations, the OCR began investigating this new complaint Aug. 11. This marks the second Title IX probe opened against the University within a year and the second ongoing investigation, as The Chronicle previously reported that the OCR began investigating an earlier Title IX complaint in November 2015. 

Prior to these two investigations, Duke faced an OCR Title IX probe in March 2013 that was resolved July 2013, when the OCR determined the allegations were "untimely," according to the Chronicle of Higher Education. The day before that resolution, a U.S. Court of Appeals ruled in favor of Duke on a Title IX lawsuit brought by a former Duke student, saying the plaintiff's allegations were outside the statute of limitations. 

Prior incidents

Recent scrutiny of Duke's policies of handling sexual assault and harassment reports come on the heels of several sexual assault cases and allegations in recent years.

In 2013, Lewis McLeod, who entered Duke with the Class of 2014, was accused of sexually assaulting a female freshman student. After a hearing by the Office of Student Conduct in 2014, McLeod was found responsible for sexual misconduct and became the first and only known Duke student to be expelled for sexual assault.

McLeod filed a preliminary injunction against the University in May 2014, arguing that his expulsion came after an unfair investigation and hearing.

Much of McLeod's complaint also centered on Irvine, whom Duke hired to independently investigate McLeod's case as well. McLeod’s suit claimed that Irvine was not properly licensed to be conducting such investigations in the state, and 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 yet to be set. 

From January to July 2015, the Durham Police Department also investigated a female freshman's claim that she was drugged and raped the evening of Jan. 8 after a party at Alpha Delta Phi fraternity's house on West Chapel Hill Street. Durham District Attorney Roger Echols announced July 2, 2015 that his office would not seek an indictment charging any subject of the investigation with a criminal offense.

Also in 2015, men's basketball head coach Mike Krzyzewski announced that then-junior guard Rasheed Sulaimon was dismissed from the Duke for being "unable to live up to the standards" of the Duke Basketball program. This marked  the first time Krzyzewski had ever dismissed a player from his team.

Sulaimon's dismissal was clouded by allegations of sexual assault. Separate allegations against Sulaimon came from two female students in the 2013-14 academic year. Both students voiced allegations publicly, but neither filed a complaint through the Office of Student Conduct or took legal action through the Durham Police Department.

In an interview with ESPN, Sulaimon denied the allegations, saying "I have never sexually assaulted, not only anyone on the Duke campus, but anyone period."

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