Duke Shoots And Misses The Point

It was alleged to have happened in 1999, which just happens to be 20 years ago. Meredith Watson’s attorney wrote a statement alleging two rapes, one by an unnamed Duke basketball player, the other by now-Lt. Governor Justin Fairfax. According to the lawyer’s statement, they happened at Duke University. They happened 20 years ago.

But Watson graduated from Duke long ago. Other than being the site of these two-decade old allegations, Duke has nothing to do with this, but that’s not going to stop it from pretending it’s relevant.

Duke’s interest in an allegation from 1999 goes well beyond sports. The university and its administrators had reporting obligations under both Title IX and the Clery Act. These are federal laws designed to prevent and deter sexual harassment, violence and discrimination on college campuses. While potential civil liability and government fines under these laws have likely passed due to the impracticality of enforcement two decades later and the expiration of relevant statutes of limitation, the university will nonetheless want to self-assess its compliance.

This reflects the fundamental misunderstanding of Title IX, that it exists as if it’s a free-standing law against “sexual harassment.” Or more to the point, rape and sexual assault, which are subsumed in the meaningless use of “harassment” that has come to be used as a generic substitute for vague offenses against women. The oddity is that it’s a one-sentence law that really shouldn’t be all that difficult to comprehend.

No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.

This is not about eliminating sex discrimination. It’s not about rape or sexual assault, nor even sexual harassment, whatever that means. It’s about students not being denied the opportunity of federally funded education programs. It’s about education. It’s about a particular college or university not allowing a person’s education to be impaired by sex discrimination.

What it’s not about is revisiting allegations decades after an education has been completed. It may be that a person’s educational opportunities were impaired decades ago, but they can’t be remedied now. Why? Because they’ve graduated and their education at the college is done.

The window of compliance with Title IX slammed shut, and there is absolutely nothing Duke can do about it now. There is, in the attorney’s statement, one matter of concern, but it doesn’t bear on either of the students accused of wrongdoing.

She went to the Dean, who provided no help and discouraged her from pursuing the claim further.

This is a personnel matter if true, but given that it was 20 years ago, before the 2011 Dear Colleague Letter and the rise of Title IX hypersensitivity that has since pervaded academia, the dean involved, assuming he is still around, likely has already realized the error of his ways. If someone at Duke feels compelled to find a goat, and the dean remains on the roster, they can sit the dean down and give him a stern talking to about what he should have done 20 years ago based on sensibilities today.

Does this mean that a rape on campus goes uninvestigated and, gasp, unpunished? Not necessarily. It’s not as if the campus sex tribunals were ever intended as a substitute for the real system.

This is particularly the case if law enforcement launches its own investigation. North Carolina law does not attach a statute of limitations for felony sexual assault cases. This means it’s possible that a person who committed rape in 1999 could be criminally charged for that crime in 2019.

There has been no complaint to the police of a rape at Duke in 1999 by Watson. It’s not that she couldn’t, but she hasn’t. Nor is she obliged to do so, if that’s not the direction she chooses to go for any reason or no reason. And this was a path she could have chosen in 1999, when she claims the dean discouraged her from pursuing her claims. She did not, and that was her choice then as well. It does not prove these rapes didn’t happen, but it similarly does nothing to enhance the possibility they did.

But if the police were to investigate today upon a decades old complaint, they would not have the opportunity that current proceedings provide. A male accused of sexual assault will be given an opportunity, notwithstanding the denial of requisite information about the allegations against him, to provide a statement to the Title IX administrator. Failure to do so will be taken as a refusal and used as a facile means of finding the accusation credible. If he does give a statement, the investigator will have to find another reason to convict.

But what no one will tell the student is that any statement he makes, any explanation he gives about what, if anything, happened, can be used by real police in real court against him. As the police are well aware, there’s no Miranda in Title IX, and they’re more than happy to have the campus investigator do the dirty work that would be unlawful if done by them.

Should Fairfax and the unnamed basketball player be concerned? Not this time, as Duke’s wading into this cesspool is pointless virtue signaling. There is no Title IX mandate that they do an investigation. The sole purpose to a Title IX investigation ended long ago, and should they ask either of the former students to give statements and defend themselves from this belated accusation, the only answer they need give is “bite me.” Whether Duke can retroactively rescind their diplomas is unclear, but that would make for a curious lawsuit.

If the cops want to use that statement against them, there is nothing to stop them.

9 thoughts on “Duke Shoots And Misses The Point

  1. B. McLeod

    No doubt Duke feels compelled to do this to dispel any vestigial, 20-year after-effect that might discourage women from reporting stare rapes today if the university were to brazenly take no action on these complaints.

  2. szr in helmet

    With regard to the Clery Act, I’m not sure Duke is merely pretending Ms. Watson’s allegation is relevant.

    In Nov. 2016, the Dept. of Ed. fined Penn State $2.4 million for Clery Act violations that arose from the Sandusky scandal. Those acts occurred in 1998. In that case, the Dept. of Ed. said the university administration’s failure to report a May 1998 complaint against Sandusky was a Clery Act violation. When Penn State argued that the Clery Act reporting requirement only became law in Oct. 1998, the Dept. of Ed. didn’t seem to care.

    If Duke is legitimately concerned about Clery Act liability, it is another example of how ignoring due process in a case with extreme facts (child predator tolerated for 20 years) leads to weakening due process for everyone.

    1. SHG Post author

      First, Clery Act is about reporting to DoE, not about anything else relevant here. Second, who was in charge of OCR in 2016?

      1. szr in helmet

        The Clery Act is relevant here. The Clery Act requires reporting to the DoE incidents of crime and crime reports. According to the DoE, an incident of crime is considered to be reported as soon as relevant information is brought to the attention of a campus police or security entity or a campus security authority (“CSA”). In Penn State, the DoE asserted that CSAs reached all the way down to graduate assistants. Because the May 1998 incident was not included in the University’s Clery Act disclosures despite several CSAs being aware of it, DoE concluded that Penn State violated the Act.

        Here, Watson alleges she reported relevant information about a crime to a dean at Duke. If the DoE deems a graduate assistant to be a CSA, then surely so would a dean. Thus Duke could be liable for a Cleary Act violation because its 1999 Clery Act report did not include an incident of crime reported to a CSA.

        You wrote: “Should Fairfax and the unnamed basketball player be concerned? Not this time, as Duke’s wading into this cesspool is pointless virtue signaling.” And maybe you’re right. But perhaps Duke isn’t just virtue signaling. Perhaps Duke has concluded that throwing Fairfax under the bus now will save the University from Clery Act liability later.

        I also would not take comfort in the fact that Penn State happened under the previous DoE regime. That regime could return to power in the near future, and never seemed overly concerned about using decades-old allegations to justify its crusade.

        1. SHG Post author

          Those old deans sucked. You’re right that a new-old regime can come back and impose a fine, but even if so, that ship sailed in 1999.

  3. Steve Brecher

    The inset quote is from a Sports Illustrated online article by a law professor who is Sports Illustrated’s “legal analyst.” The author speculates about a Duke investigation, but I don’t see anything about the University’s actual plans or activities in that regard.

      1. Steve Brecher

        Coach ” stressed that the allegation is highly troubling and he pledged that university officials will look closely into it.”

        Ya, missed that. It’s future, but it’s a pledge.

  4. Pedantic Grammar Police

    Seeing people who promoted this nonsense now falling victim to it gives me hope. These accusations are garbage. Even if the person reporting a 20-year-ago crime for the first time via the media believes what xe is saying, 20-year-old memories are unreliable. But here they are losing their jobs just like the evil Republicans.

Comments are closed.