Judge has to decide if discrimination claim against Duke sees trial

Hoping to stave off a mid-summer trial, Duke University has once again asked a federal judge to dismiss a former student’s gender-discrimination lawsuit that claims it botched the handling of a sexual-misconduct investigation.

University officials uncovered the incident, found the woman and encouraged her to report it, investigated it and offered her support services, all in line with their obligations under federal Title IX anti-discrimination law, lawyers for Duke said in a recent motion asking U.S. District Court Judge Catherine Eagles to end the case.

All that’s very far from the sort of “deliberate indifference” that would justify a finding of discrimination, they said, adding that when schools investigate misconduct complaints, federal courts in this part of the country “have not allowed juries to second-guess” the choices they’ve made along the way.  Pending since 2016, the lawsuit concerns an incident that happened in March 2011 and an investigation that concluded in 2013. Durham lawyer Bob Ekstrand – of Duke lacrosse case fame – is representing the former student and has argued the fact that one of the two men she accused is the stepson of former Provost Peter Lange, which he alleges influenced the university’s handling of the case.

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Ekstrand’s original filings alleged his client was the victim of a “drug-facilitated rape” that one of the men secretly videotaped.

The court file, however, paints a much more convoluted picture.

Originally, Ekstrand’s client wasn’t even the focus of a campus police investigation that began in April 2011 when Duke’s student affairs office learned of rumors that a woman had shown up outside a campus dorm “apparently very intoxicated and unaware of her location.”

That initial report didn’t pay off directly, as police never found that woman, who wasn’t a student. But it tipped them to the March incident, leading them to the two men, the video and eventually Ekstrand’s client.

She turned out to have no direct memory of the incident, and apparently flip-flopped at least once on whether she’d consented. She admitted to having used alcohol and inferred from her lack of memory that someone might have drugged her.

Campus police consulted Durham prosecutors, but eventually decided not to pursue a criminal case, in part because she waffled about her willingness to testify. Another factor, former campus policeman David Dyson said in a 2012 report, was “serious doubts that the incident was non-consensual,” based on a video where the woman’s “speech was not slurred and she was making quick responses to what the males said.”

A parallel campus student-conduct investigation, meanwhile, was slow to develop momentum again because the woman wasn’t sure how she wanted to proceed. She took a semester off in the spring of 2012, and by Duke’s account didn’t give the student affairs office a statement on the case until the spring of 2013.

That led to a mid-summer student-conduct hearing that, by the woman’s account, led to one of the men being “fully acquitted” and the other receiving a light punishment – probation, other court filings indicate. Rather than appealing that ruling, she complained to Duke’s Office of Institutional Equity, which eventually decided there was “insufficient evidence” to say the university had “denied rights under Title IX or subjected [her] to a hostile environment.”

Ekstrand, meanwhile, likely is on the back foot because a 10-month pretrial “discovery” evidence-gathering period came and went in 2017 without him asking to depose any witnesses in the case. He essentially ceded the field on that to Duke.

At the end of November, he asked for another two months, but Judge Eagles said no.

“Deadlines are in place for a reason,” namely so cases can move “efficiently and fairly” toward a conclusion, she said.

Former Provost Lange’s attorney, Kerry Sutton, is tracking the case and on Friday said she thinks Duke’s stance is “well-supported by the facts and the relevant law.”

Duke has asked Eagles to shut down the case before, but in late 2016 she declined that request.

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