“Run over by a really bad process,” Duke soccer player has his day in court

Duke University broke its word to a men’s soccer player when it mishandled the disciplinary process it put him through after a fellow student accused him of sexual misconduct, Durham’s top judge agrees.

Senior Resident Superior Court Judge Orlando Hudson acted on that conclusion Monday by turning a temporary injunction into a permanent one that bars Duke from imposing a six-semester suspension that soccer player Ciaran McKenna otherwise faced.

Hudson’s ruling effectively decided McKenna’s breach-of-contract lawsuit against Duke ahead of trial, leaving the two sides little more to do but argue about the damages Duke eventually might have to pay him.

He’ll be seeking more than just attorneys’ fees, as the question ultimately revolves around “what effect does it have to be falsely labeled as a rapist and how much does it cost you in life,” said Emilia Beskind, one of McKenna’s lawyers.

But Beskind noted that Duke can appeal Hudson’s ruling to the N.C. Court of Appeals.

McKenna is contesting a ruling from Duke’s in-house disciplinary process that found him responsible for alleged sexual misconduct that happened in 2015.

The known facts of the incident are, at this point, legally secondary to the questions about how Duke handled the disciplinary process. McKenna and the woman involved met at a Durham nightspot, went back to their dorm, and engaged in sexual activity that included intercourse.

By all accounts, everything but the intercourse was consensual. The case went through the campus hearing process twice, the first panel saying that McKenna in going ahead had “relied on [the woman’s] failure to object” and the second saying he “should have sought additional confirmation” after she told him she was a virgin.

Procedural error

What put the case in court was McKenna’s belief – encouraged by Duke law professor James Coleman, his adviser during the disciplinary process – that there shouldn’t have been a second campus hearing at all. It happened after a campus appeals panel ruled that a procedural error had marred the first.

Duke policy in 2015-16 said the appeals panel should “resolve the case” after discovering such an error, except when it sees the need for more witness testimony. Instead, in the McKenna case it sent the matter back to the Office of Student Conduct, which called for an all-new hearing.

Because of a quirk of North Carolina law, a private university like Duke isn’t normally vulnerable to breach-of-contract challenges to its student-disciplinary process. But McKenna’s lawyers – Beskind and Jay Ferguson – relied on the terms of the letter-of-intent and financial-aid agreement he signed during his recruitment by Duke’s soccer team.

The aid deal specifies that Duke was free to cancel his scholarship if he engaged “in misconduct warranting substantial disciplinary penalty as determined by Duke’s regular student disciplinary authority.”

Published procedures

McKenna’s lawyers argued that wording obliged Duke to follow its published procedures for handling the case. But Duke’s lawyer, Paul Sun, said it only implied that the Office of Student Conduct – the relevant “authority” – would handle a complaint but left university officials free to decide how.

Sun added that the contract didn’t include the Duke Community Standard in Practice, the document that spells out the disciplinary process. In successful contract-law claims “where there’s an incorporation of rules and procedures from another document, it specifically refers to those procedures,” he said. “That’s what’s missing here.”

But Ferguson had already noted that one of the normal rules lawyers and judges use in reading contracts is that any ambiguity should count against the person or organization that wrote it. Duke controlled the wording of its deal with McKenna.

And anyway, “there’s no ambiguity in the term ‘resolve the case,’” Ferguson said.

He added that one Duke official, Janie Long, now the associate vice provost for undergraduate education and a former chairwoman of the student-discipline appeals board, is on record as telling a student in 2015-16 that an appeals board “will make the final decision” in cases where there’s no need for more testimony.

Duke officials “didn’t want this court to see” that email, Ferguson said, telling Hudson that the university handed it over late in the trial-preparation process after McKenna’s lawyers asked them to confirm its authenticity or see Long called as a witness.

Hudson said little about the reasoning for his decision other than that he agreed with McKenna’s arguments.

He left it to Ferguson and Beskind to draft an order for him to sign that would figure in any Duke appeal of his ruling. The judge a year ago issued a temporary injunction that kept McKenna in school in 2017 and so far in 2018.

Beskind, a Duke School of Law graduate, said afterward that the ruling “feels special” because of the nature of the case.

From the start, “I felt really strongly that this kid just got run over by a really bad process and is entirely innocent,” she said.

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