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Thursday, February 28, 2008

Duke Lacrosse III: Harassment

A commenter on my second post on the Duke lacrosse players' lawsuit (first post here) wonders why the players did not assert federal claims for racial (Title VI) or sexual (Title IX) harassment in education. One guess is that, to the extent they were harassed, it was because of their status as lacrosse players and because of their being implicated (by association) in alleged misconduct (that turned out to be false). Now, because the criticism and verbal attacks on the team were charged with issues of race and sex, an argument that they were attacked because of those characteristics perhaps becomes stronger. But the atmosphere on campus was not generally harassing to white males; only those white males who were on the lacrosse team and only because of the party and its aftermath. Moreover, such claims also would require showings by individual players, not the group as a whole--and the complaint presently is light on player-specific factual allegations.

But the players tried to do something similar. The complaint targets the university's failure to stop the verbal criticism and attacks, which the complaint alleges constituted harassment under the university's anti-harassment policy. That policy prohibits harassment "of any individual for any reason" and defines harassment as "verbal or physical conduct . . . that, because of its severity and/or persistence, interferes significantly with an individual's work or education, or adversely affects an individual's living conditions." The theory is that the players were harassed and the school did nothing to stop that harassment--and, in fact, through the actions and statements of university officials hinting at the players' guilt, helped add to that harassment. This forms the basis for several claims, including breach of contract and negligent supervision of faculty and employees.

Quick thoughts:

1) The Foundation for Individual Rights in Education makes a living tracking and criticizing over-enforcement of overbroad university harassment policies in a way that infringes on free speech and the folks at the Volokh Conspiracy write about F.I.R.E. cases quite a bit (recent example here). The plaintiff's liability theory actually raises those same concerns--much of what they are calling "harassment" was socio-political speech of unquestioned protection and an effort by Duke to punish such speech (had it been directed against, for example, a speaker criticizing the predominantly African-American football team) under its own policy would have aroused F.I.R.E.'s ire. Here, in a sense, the school is being hoisted on its own petard--its failure to enforce an overbroad policy against harassment, because doing so would have raised free speech concerns, is the basis for the lawsuit against the school. Of course, we again have the paradox of the players seeking to hold the school legally liable for failing to stop a great deal of speech that could not have formed the basis for liability against the individual speakers.

2) The complaint does allege some specific instances of what sounds like true harassment against particular individual players: Professors going on rants about the lacrosse team with particular players sitting in the classroom (more about this later); some direct, face-to-face threats; and some physical assaults against particular players. Much of this is speech and conduct the university could restrict and punish. Again, that works for particular players. It becomes harder to form the basis for liability as to the team as a whole.

3) Many of the harassment claims focus on Duke's failure to control its faculty, which, of course, raises questions of academic freedom. What does it mean for academic freedom if Duke potentially could be held liable for failing to silence faculty members who wanted to speak out on a matter of public concern on campus. This is not to defend what many of the faculty members said, some of which was extreme and wrongheaded and, ultimately, factually wrong. It is to suggest concern at the incentives created if a university can be held liable for failing to silence its faculty. Of course, this problem is present in all the cases F.I.R.E. tracks--a university that fails to stop a white supremacist professor from speaking may find itself at the wrong end of a similar suit brought by African-American students. But because it now is white male athletes bringing the claims for speech that allegedly harassed them, university administrators may begin to see the problems with such overbroad harassment standards.

Posted by Howard Wasserman on February 28, 2008 at 03:55 PM | Permalink

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