Stephen Bryan, associate dean of students and director of the Office of Student Conduct, testified for two and a half hours Monday in an ongoing civil suit filed by sophomore Ciaran McKenna against Duke.
In January, McKenna—a men's soccer player—exhausted appeals through the University’s judicial process and was suspended for six semesters after being found responsible for sexual assault by the Office of Student Conduct. McKenna is suing Duke on the grounds of a breach of contract, common-law fairness violations and negligence.
James Coleman, John S. Bradway professor of the practice of law and faculty advisor to McKenna, testified Thursday about the reliability of the alleged victim—a female student—and what he viewed as McKenna’s innocence. Coleman also described the mistakes made by Bryan and the OSC—primarily that McKenna’s case should not have gone to a second, new panel in November after McKenna appealed the first panel’s July decision.
During his questioning, Bryan repeatedly stated that he followed the policies laid out by the Duke Community Standard and that he did not recall the specifics of his office’s responses to McKenna’s particular case.
Jay Ferguson, McKenna’s lawyer, suggested that Bryan convened a second panel because at least one member of the original three-person panel did not believe the alleged victim was credible—and that Bryan had decided to start a new panel in the hopes of it being less favorable toward McKenna. Bryan denied this.
“You are trying to imply that my motivation for going forward with the hearing was as if I'm out to find the student responsible,” Bryan said. “That is not my role. My role is to do what is fair to all parties.”
Ferguson also implied that Bryan had departed from the policies laid out in the University's student conduct handbook by convening a second panel, and repeatedly asked Bryan to point to the place in the handbook that says a new panel can be convened after an appeal.
“I’m asking you to admit that in these policies and procedures, there’s not one word that talks about Duke’s ability to have a second hearing on remand with a new panel,” Ferguson said. “There’s nothing in the policies and procedures whatsoever that talks about having a brand-new hearing.”
In response, Bryan pointed out that the handbook provides principles to follow, rather than extreme details.
“Our handbook does not outline every single process," he said. "It would be impossible to write everything down, but I follow the principles as outlined in this handbook, which states that when a case is received by the Office of Student Conduct, the Office of Student Conduct has authority on that case.”
Bryan admitted that he had met with the alleged victim before making his decision. Ferguson asked if she “urged” him to convene a second panel after McKenna’s appeal. Bryan disagreed with Ferguson’s characterization of the alleged victim’s motivations and said she was “willing to move forward with the case.” He also said that he met with McKenna and Coleman but would not comment on their motivations.
Ferguson asked if Bryan convened another panel because he found that the “reasonable person” standard—whether a reasonable person would have concluded that the female student had given consent—was not used in the first panel's decision. Bryan said that although he did not consider the reasonable person standard in his decision to convene a second panel, he did follow the University’s protocol which, he noted, relies on whether there was substantial evidence that McKenna had committed a policy violation.
Get The Chronicle straight to your inbox
Signup for our editorially curated, weekly newsletter. Cancel at any time.
At one point, Ferguson repeated his question on whether Bryan thought the original July panel had used the correct standard in determining McKenna’s responsibility eight times, before asking Judge Orlando Hudson to compel Bryan to answer. Ferguson then asked four more times.
“I did not form an opinion on that,” Bryan ultimately said, adding that he did not recall if he thought the OSC had used the correct policy when he reviewed the first panel’s decision before it was finalized.