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June 20, 2007


First of all, let's be clear that the ad run by the Group of 88 didn't merely characterize the incident as a social disaster. It also said "thank you for not waiting" to those campus protesters whose activities included publishing a "wanted" poster with photographs of the lacrosse team and describing the team as "rapists." If the publication of a "wanted" poster is actionable, and it easily could be, then the endorsement of such publication by the faculty might also be actionable. And the statement of the Group of 88 didn't merely run as an ad in the newspaper, it also (according to K.C. Johnson) was prominently displayed on the homepage of Duke's African and African-American Studies program.

K.C. Johnson also documents published comments by History Professor Peter Wood that could easily be viewed as defaming defendant Reade Seligmann. Other professors' comments were also potentially actionable.

I believe the three vindicated defendants would have faced an uphill battle in lawsuits against the faculty members and against Duke, but they appear to have had at least colorable claims. Duke could certainly have concluded that the prudent course would be to settle claims, especially when doing so would also protect faculty members from having to defend lawsuits brought against them individually.

The strongest claims by the three vindicated defendants will be against Nifong, who unfortunately doesn't have much in the way of assets to pursue, and the City of Durham, whose pockets are deep and which will probably have to pay plenty. There are also possible claims against media like Newsweek and CNN for statements that could be regarded as libelous or slanderous; whether those claims will be made remains to be seen.

BTW, premature expressions of disgust at an incident that now appears never to have occurred are probably not actionable.

The exposure of Duke has to do with its refusal to protect its students from harassment and possible physical assault, not newspapter ads. There stories of Duke faculty members during course lectures castigating the three fellows by name. These kids paid tuition to go to school and the faculty was so hostile toward them that they did not feel safe on campus. Then the kids were suspended and not reinstated until late 2006 (I think). So, the real claim a breach of the duty owed by the school to its tuition paying students (for whom the school has very explicit responsibilities). Bruin

There is also the story of what happened immediately after the allegations were made. Apparantly, Duke called a meeting of the Lacrosse team and told them to give DNA samples and not tell their parents because they did not want lawyers inovlved. That is one of the most shameful things I have ever heard. To instruct any student to not inform his parents of this kind of possible legal exposure (rape) is probably an intentional tort. Thank goodness one of the kids called his folks anyway and got lawyers on the scene. Again, Duke did not protect its tuition paying students and instead got caught up and indeed fed the local hysteria. Believe me, after hearing this I would remove my kids from that school as fast as I could. Fortunately they go elsewhere.

To expand on what Rob said,

Not only did the ad increase public condemnation, it explictly stated that 10-12 Duke programs or departments had signed on to the condemnation. Further, Duke knew or should have known that this allegation was false and allowed the lie to be perpetuated for months.

Beyond that, Duke allowed a warrantless search of the teams dorm rooms, warrantless access to email acounts and strange advice from a Duke attorney to cooperate with the Police, not seek counsel and not tell their parents. All bad advice for the players, given the facts....

To find out more about Duke Group of 88 professors, visit:

Duke Group of 88 Professors

Didn't Duke suspend these students without any kind of hearing and without getting the facts. Not to contradict the other comments, but this to me seems to be a bit of a problem for the school.

Those concerned about the lack of due process in Duke's suspension of two of the defendants are right in identifying an unfairness but may be confusing the obligations of a public institution like UNC with those of a private institution like Duke. Duke is under no constitutional obligation to provide due process to students. It may arguably have violated its contractual obligations to the students, but the measure of damages for such a violation would probably just be the tuition they'd paid. Getting Duke on the hook for serious money requires a tort such as defamation.

Note also that the wrongs which some have perceived against lacrosse players other than the three criminal defendants are not covered by the settlement, which was for the benefit of only the three.

Actually, Rob, contractual damages could be much higher. In particular, Duke would be liable for incidental damages, e.g., breached leases, moving expenses, etc., and could be liable for consequential damages, i.e., damages flowing from the breach such as lost income by having graduation postponed, upon a factual finding that those damages were reasonably foreseeable at the time the parties entered into the contract. In addition, Duke might have liability for violations of the students civil rights. Although generally only governmental actors can be liable for civil rights violations, a private actor can have liability if it is proven that he acted in concert with governmental actors in violating civil rights. Permitting warrantless searches without authorization to do so may give rise to civil rights liability. Finally, Duke has potential tort liability for invasion of privacy and defamation, to name just two.

If Duke had a general policy of suspending students charged with serious crimes I don't see how the suspensions would have been actionable. Academic freedom and the First Amendment protect the 88 faculty people from being fired or disciplined. And aren't we forgetting that the student body heavily supported these guys, that James Coleman was out there early in support of their allegations re Nifong, and that stopping the lacrosse season may have been necessary to avoid possible violence at the games? The key event in this case was the DNA tests coming back negative, and that took 3 months or so from what I recall. So the settlement was more concerned with the University's belief, correct in my view, that it had not moved much earlier to support the defendants. Their lawsuit against Duke would not have been frivolous, but it was not all that great a case. The key was for the Univ to make amends for educational malpractice .

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