“38 lacrosse players sue Duke University”

by Walter Olson on February 21, 2008

Inevitably so? Maybe not. As longterm readers will recall, we were early and vocal among those calling attention to the legal travesty that was the Nifong prosecution, but it’s quite a jump from there to the proposition that the taxpayers of Durham, the university and its president Richard Brodhead personally should fork over money for emotional distress damages to, say, students never prosecuted at all and family members, who comprise the plaintiffs in this new case. (Kristen M. Daum, Newsday, Feb. 21; Bob Van Voris, “Duke Lacrosse Players to Sue School Over Rape Probe”, Bloomberg, Feb. 21; Malkin). The plaintiffs have a website here. (Corrected to fix misstatement on identity of plaintiffs. And broken link now fixed).

More: James Taranto at the WSJ quotes the Raleigh News & Observer under the heading “Yoo Hoo! Over Here! Ignore Us Please!”:

*** QUOTE ***The latest Duke lacrosse suit got off to a big start Thursday with publicists, lawyers of national renown, a media blitz at the National Press Club and a lawsuit with its own Web site.

The 38 members of the 2006 Duke lacrosse team who filed the suit in federal court say their reputations were damaged by their association to an escort service dancer’s phony gang-rape allegations.

The players chose not to appear at the news conference, said Bob Bork Jr., the group’s hired publicist, because they don’t want to attract attention.

*** END QUOTE ***

If they didn’t want to attract attention, it might have made more sense not to call a press conference. Or, if they had already called it and felt they had no choice but to go through with it, maybe they could have created a diversion by having a stripper show up or something.

The News & Observer also notes at the end of its article:

Only three members of the 2006 team have not filed suit — Matt Zash, a former captain; Matt Danowski, the current coach’s son, and Kevin Mayer.

And more: Bob Bork, Jr. writes to say he was misquoted in the News & Observer report, and says the following is a transcript of what he did say about the players’ absence:

One final comment before we start. None of the 38 players who are filing this lawsuit are here today. They considered participating, but many have jobs and some are still students and lacrosse team members at Duke. One is in Army Ranger school preparing to deploy to Iraq.

Know this — the players are united behind this lawsuit. At the same time that they are understandably concerned about retribution and slanderous media coverage. Who can blame them after what they endured for 13 months in 2006 and 2007. They are walking a fine line between trying to live normal lives in the wake of an unspeakable trauma and at the same time trying to get answers to questions that remain unanswered by their university.

{ 9 comments }

1 Richard Nieporent 02.21.08 at 10:26 pm

I tuned into a sports radio station coming home from a business trip tonight and the talk show host (I didn’t catch who it was but I believe it was a Philadelphia station) made the exact same point. He said that the three accused players deserve to get as much compensation as they can, but he could not see how the rest of the team has a legitimate claim to being harmed. Basically, he felt that they were just doing it for the money. I guess that won’t be the first time that has every happened.

2 Jim Thomlonson 02.22.08 at 2:36 am

They were most definitely harmed and do deserve compensation BECAUSE for over a week all we heard was that some unnamed lacrosse players had raped a young woman. During that lengthy time before the identities of the 3 were revealed, every member of that team was vilified throughout Duke and Durham as their characters were slandered. They even had to stay home from school because it was determined it was not safe for members of the team to be seen in public! You would have to be crazy to think there was no emotional distress and discrimination experienced by the rest of the team during that time.

3 Waste93 02.22.08 at 9:12 am

Actually I think they may have a fair chance. In regards to the school a number of faculty members may have defamed them with their Group of 88 statement. You also have the protests stages against all the LAX players that were endorsed by those same faculty members. There was at least one case of grade retaliation by a faculty member also. If I remember the school also gave the police information about dorm card use and other information that should have required a subpoena. A school lawyer also gave legal advise to the players to not talk to anyone even their parents.

The police department and the prosecutors office gave out false information that the LAX players were not cooperating while they were. Also the NTO that was obtained listed all the players. Under state law all those named in the NTO were required to be given copies of the results of the DNA test, none of which were.

Overall I would think they have a decent chance. Especially if they can use the information from the settlement between the other three players and the school.

4 John Burgess 02.22.08 at 9:22 am

I agree that the players deserve some compensation, but how much and from whom is another question.

From Duke, whose pusillanimous faculty and administration defamed them as a group (canceling the LAX season, for instance), certainly.

From the city or state? Maybe not.

Innocent people do get caught in the crossfire of prosecutions, good and bad, inadvertently. ‘Collateral damage’ isn’t just applicable to military situations.

5 Hans Bader 02.22.08 at 11:24 am

It seems obvious to me that the plaintiffs were treated worse by Duke’s administration and faculty because of their race and gender, thereby concretely harming their education and harassing them on the basis of their race and gender, in violation of Title VI of the Civil Rights Act (42 USC 2000d) and Title IX (20 USC 1681-1688).

So why is there not a discrimination claim under these statutes in the complaint? I don’t see one in the complaint.

Racial harassment violates federal civil rights laws, even when the victims are white. Bowen v. Missouri Dept. of Social Services, 311 F.3d 878 (8th Cir. 2002); Huckabay v. Moore, 142 F.3d 233 (5th Cir. 1998).

Sexual harassment violates the civil rights laws even when the victims are male. Thus, an insulting 3-day “diversity training” seminar that insulted males gave rise to a viable sexual harassment lawsuit in Hartman v. Pena, 914 F.Supp. 225 (N.D. Ill. 1995).

Sexual harassment in schools and colleges violates Title IX when the school or college is indifferent to it, see Davis v. Monroe County Board of Education, 526 U.S. 629 (1999) (K-12 school); Jennings v. University of North Carolina, 482 F.3d 686 (4th Cir. 2007), or when the school’s administration directly promotes or engages in it itself. Simpson v. University of Colorado, 500 F.3d 1170 (10th Cir. 2007).

Racial harassment in schools and universities also violates federal law. See, e.g., Gant v. Wallingford Board of Education, 69 F.3d 669 (2d Cir. 1995).

Treating people as if they are guilty based on their race or sex can constitute illegal racial or sexual harassment, or discrimination. See, e.g., Yusuf v. Vassar College, 35 F.3d 714 (2d Cir. 1994) (practice of invariably assuming guilt of males accused of sexual harassment stated claim under Title IX); Underwood v. Northwest Health Services, 57 F.Supp.2d 1289, 1303 (M.D. Ala. 1989) (“baseless accusations of racism” supported white employee’s harassment claim under Title VII); Weberg v. Franks, 229 F.3d 514, 524 (6th Cir. 2000) (suspension of white employee by official who admitted he did so based on blacks’ “perceptions,” independent of whether they had merit, to maintain workplace peace, violated Title VII).

6 Anonymous Attorney 02.22.08 at 11:29 am

My job and my bias lie with civil defendants, but in this case, I wouldn’t mind seeing the retirement accounts/pensions of the Group of 88 transferred to the players.

7 Melvin 02.22.08 at 12:43 pm

How about going after the group on campus who posted the players’ photo with “WANTED” on it?

8 William Nuesslein 02.23.08 at 10:18 am

I recommend that the boys hold a press conference where they drop their litigation for the sake of the school and the community. They would be heroes, and they would be better able to get beyond the incident.Taking money off the table would increase the creditability of their public comments.

9 gitarcarver 02.23.08 at 2:35 pm

I recommend that the boys hold a press conference where they drop their litigation for the sake of the school and the community.

Loyalty is a two way street. The school and community not only abandoned these players, they made their lives horrible for a year.

They would be heroes, and they would be better able to get beyond the incident.

Heroes to who? You do realize that many in the Duke community and the surrounding areas still feel that the players were in the wrong. Some of the faculty in the “gang of 88″ continue to make comments about the guilt of the players. If you also remember, people such as Al Sharpton and Jesse Jackson made highly publicized appearances condemning the players. At the same time, the city and University refused to follow the law and their own rules of conduct. Sharpton and Jackson have not apologized for their conduct that inflamed the passions of the community. Duke withheld evidence that would have exonerated the players but instead allowed them to be bullied, harassed and threatened by the students and faculty.

This is a case where the rooster has come home to roost.

The players owe the university and the community nothing. There may have been a time when an extended hand from the community and the University could have prevented this, but not now.

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