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Monday, March 03, 2008

Duke Lacrosse IV: Universities and Student-Athletes

Eric Muller, of Is that Legal?and the University of North Carolina Law School, complains about the way in which academic operations at the law school are hindered and frustrated by the school's seemingly greater commitment to even non-revenue athletics and the role that athletics plays in the university power structure relative to academic departments. Good timing on that post, because part of the question Eric describes is at the heart of the Duke lacrosse controversy and the recent player lawsuit: Given the important (over-important?) role that sports plays in Division I school, what duties and commitments does a university owe its scholarship student athletes? How should schools deal with (potentially serious) misconduct by student-athletes? Do different rules apply?

Much of the player's claims against the university boil down to the following: The university, its president, and its administration threw us under the bus.

According to the narrative in the complaint, the school initially professed to support the players, constantly assuring them the school could make the problem go away. The school even provided a "legal adviser" to work on behalf of the team as a whole (while not formally representing anyone), setting up meetings with law enforcement for the players to tell their stories and provide DNA samples. In exchange, players were advised not to retain counsel and, in fact, not to tell anyone, including their parents, what was going on. Then, when the noise began (from the media, from law-enforcement, and from various members of the Duke faculty and community, many pushing a political agenda), the school stopped supporting the players. The school canceled the season and fired the coach (who had not done anything wrong). President Brodhead made statements criticizing the players and suggesting some or all of them had engaged in some wrongdoing (at worst a gang-rape, at least underage-drinking and hiring a stripper, and somewhere in the middle, obstructing justice). The school disclosed private information about the players, including information obtained in meetings between players and administrators that the latter promised to keep secret (my favorite allegation in the complaint is that one lower-level administrator told players that anything they revealed was protected by "administrator-student privilege"). Ultimately, the university sacrificed the team for the school's reputational greater-good.

Of course, it turns out Duke got the situation tragically wrong--the allegations were entirely false, the players truly did nothing wrong, and the university looks even worse because of it. But understanding the school's obligations should not turn on the ultimate result of a given case, unknowable in advance. So what is a school's duty in the face of allegations of player misconduct? Must the school wait until the entire criminal-justice process works itself out? Or can a school act to protect its reputation early on? Are student-athletes entitled to continue playing their sports or is it enough that they are able to remain in school? Can the school act against a team as a whole, when the legal focus is on only a few players (recall that none of the plaintiffs in this complaint ever was indicted or even a serious suspect in the underlying sexual-assault accusation)? How much greater leeway does the school have with respect to student-athletes (who, as team members, "represent" the university before the public) as opposed to ordinary non-athletes?

Finally, there are sports teams and there are sports team at any university. In Until Proven Innocent, their expose of the lacrosse scandal, Stuart Taylor and K.C. Johnson tell the following story: After the prosecution fell apart and it became clear the university had made serious mistakes, President Brodhead met with lacrosse-team members. One player asked whether the university response would have been the same had it been the national-powerhouse men's basketball team (the crown jewel of the Duke athletic department) as the target of the accusations. Brodhead said yes--but neither the players nor the authors seem to believe him.

Posted by Howard Wasserman on March 3, 2008 at 10:15 AM | Permalink


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"understanding the school's obligations should not turn on the ultimate result of a given case, unknowable in advance"

Why not? That is how history and reputation works--if you are ultimately right, history rewards you. If you turn out wrong, history condemns you. Good process and good intentions are pretty much irrelevant here. Neville Chamberlain thought he was acting in the best interest of his country, too. A school wanting to get a good reputation has only one objective: get it right. That it is hard, perhaps impossible, is unfortunate, but there really is no other lodestar here.

Posted by: TJ | Mar 3, 2008 2:37:23 PM

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