EDHE 737 Legal Brief

Alia McAdams
November 15, 2016
Katharine Rouse v. Duke University
914 F.2d 717 (U.S. Dist. 2012)

Brief Overview of the Case

Katharine Rouse began as a student at Duke University in the fall of 2006. In February
2007 she was the victim of a rape at an off campus fraternity party. Katharine then took leave for
the remainder of the semester. Upon returning in the fall Rouse decided to transfer to a university
closer to home in New York. After meeting with her advisor Dean McKay she finalized her
decision to transfer. In the years following Rouse expressed her discontent with the way that she
was treated in the months following the assault. She went to the court against Duke University
claiming the creation and maintenance of a hostile educational environment, negligence,
negligent and intentional infliction of emotional distress and breach of contract. She alleged that
the universitys conduct towards her in the months following the event was negligent and
harmful to her education. After carefully examining the case the U.S. District Court granted
summary judgment to Duke University, dismissing the plaintiffs claims.

Summary of the Issues and Facts of the Case

Katharine Rouse sued Duke University for the creation and maintenance of a hostile
educational environment, negligence, negligent and intentional infliction of emotional distress
and breach of contract under Title IX. She claims that the treatment was the result of her rape in
February 2007.

Prior to the assault Rouse met with her advisor Dean McKay in January of 2007 to
discuss potentially transferring to another university in order to be closer to her sick mother. At
the time she had her mind made up about transferring, but she did not tell Dean McKay about her
decision at this time. As a result Dean McKay did not inform Rouse about Dukes policy against
allowing students to reapply to Duke after transferring. While the policy was not mentioned, it
was written in the Duke University Bulletin. The policy states that students who transfer to a
different institution to seek a degree, the student is no longer eligible to be enrolled as an
undergraduate student at Duke. The policy also mentions that students should bring this up when
speaking with their advisors about potentially transferring.

A month later, on February 10, 2007 Rouse attended an off campus party where she was
raped in one of the bathrooms at about 2:45am. Facebook listed the hosts of the party as Phi
Beta Sigma and Gattis St. Residents. After the assault Rouse returned to her dorm room. Police
arrived to the dorm at 4:51am after being called by other residents in the building on Rouses
behalf. She was transported to the hospital and the Duke Police contacted Durham Police to take
over the investigation. The Duke Police then reported the incident to Duke Student Affairs and
word of the event was immediately passed to the Dean of Students Sue Wasiolek and the Vice
President for Student Affairs Larry Moneta. The administrators informed Sheila Broderick, one
of the counselors at Dukes Womens Center who then met Rouse at the Hospital. Rouse
continued seeing Broderick for counseling in the months that followed the event. Upon
investigation the Durham police interviewed the residents of the party house as well as other
attendees and Michael Germaine Burch was arrested on February 19. He pled guilty to the rape,
however he was not a student of Duke so the university took no further action against him.

In March 2007 Rouse decided to take a leave of absence for the remainder of the
semester. Dean McKay sent notes to her professors excusing her from classes and she returned
home to New York. Dean McKay also informed Rouses mother about the incident and provided
Rouse with her options for the rest of the semester in terms of academics. Rouse requested to
complete the rest of her classes from home because she intended to transfer to Columbia
University for the following year, but Columbia required students to complete an entire academic
year in order to transfer in. Duke was unable to grant her request to complete her classes from
home, but Dean McKay worked with the Columbia administration to waive the full year
requirement. After consideration Rouse decided to take a leave of absence for the remainder of
the semester and to return to Duke in the fall. Her spring tuition was waived and her room and
board was prorated.

Vice President of Student Affairs Moneta informed President Richard Brodhead and
other administrators of the rape on February 11 by email. Dean Wasiolek instructed Christine
Pesetski, an administrator to hold a Greek Judicial Board hearing to investigate Phi Beta Sigma
and their role in the assault. The hearing was never held. Vice President Moneta suspended one
of the residents of the off campus house after he was caught throwing drugs out of his window.
Meanwhile the Associate Dean of Students and Director of Judicial Affairs Stephen Bryan
collected the names of the residents of the house. Later that day Vice President Moneta received
an email from Mr. McClendon, a significant donor to Duke, informing him that the donor owned
the house. The email implied that the donor was unhappy with the investigation. Vice President
Moneta then forwarded the email to the Vice President for fundraising with the message,
shit and to the President of the university with the message, unbelievable!. After the
discovery of the email the investigation of the fraternity and the residents of the house was
halted. The Assistant Dean of Students Todd Adams spoke with the fraternity president and
decided that the fraternity did not host the party. He then officially ended the investigation, and
no students were sanctioned though at this time Adams and Moneta were aware that the punch
served at the party was likely spiked with Everclear.

On February 21, 2007 Rouses mother sent an email to Dean Wasiolek and Vice
President Moneta stating that the investigation had to continue. She discussed how important it
was for someone to be held responsible for the event that turned her familys life upside down.
The administrators responded by saying that the investigation was still in process, but there was a
high possibility that the investigation might not result in sanctions against any students.

The following fall semester Rouse returned to Duke to resume classes. After a few weeks
she began to consider transferring again claiming that her peers treated her differently and that
being on campus was difficult for her due to the negative memories. Rouse also claimed that
Vice President Moneta was avoiding her. On October 29 Rouse emailed Dean McKay with her
plans to transfer for the following semester. The two met in person on November 8 to discuss the
topic. Dean McKay still did not inform Rouse of the policy that Duke has against being
readmitted to the university after transferring to another university. Alternatively Rouse never
informed Dean McKay or any other university officials that she intended on only transferring
temporarily. The day after their meeting Rouse emailed Dean McKay with a scripted message
that they had discussed the previous day formally informing the dean of Rouses intentions to
transfer to Fordham University for the spring of 2008. Dean McKay sent Rouse a month later
stating that her withdrawal was being processed and that her eligibility to seek readmission to
Duke was being forfeited in the process. Rouse did not contact anyone at that time about her
anger towards the forfeiture because she had no intentions of returning to Duke at this time.
Rouse then enrolled at Hofstra in Spring 2008 and graduated in Spring 2011. In her time at
Hofstra Rouse decided that she had been treated unfairly during her time at Duke and decided to
sue under Title IX.

Court Decision
Rouse sued Duke University claiming the creation and maintenance of a hostile
educational environment, negligence, negligent and intentional infliction of emotional distress
and breach of contract. She brought these claims to the U.S. District court which examined each
claim carefully.

The hostile educational environment claim falls under Title IX of the Educational
Amendment of 1972. The law claims that no one shall be discriminated against based on sex in
terms of participation or benefits by any institution receiving Federal financial assistance. In
order to prove discrimination under the hostile educational environment claim the plaintiff must
be able to prove that she was a student at an institution that was receiving federal funds and that
she was harassed based on her sex. She also must be able to prove that the harassment created a
hostile environment in an educational program or activity, and that the institution is liable. Rouse
claimed that four incidents proved hostile environment. She alleged that Vice President Moneta
made offensive comments to the media about her rape and that Duke did not investigate or
sanction the hosts of the party where she was assaulted. She also made claims that Duke
penalized her after her leave by not permitting her to take courses at home and blocking her from
registering for the courses she wanted. Finally, Rouse claimed that Dean McKays tricked her
into transferring to another institution.

Rouse claimed that Vice President Moneta went to the media after she was raped and
stated that the incident was just a part of collegiate life. She alleged that he claimed that she was
just in the wrong place at the wrong time. The evidence that Rouse provided of this quote came
from a blog post and a book excerpt. The court considered both sources heresy and therefore
could not be considered. Furthermore, the court decided that the statement did not create a
hostile environment since Rouse did not learn of the statement until she had already transferred
to Hofstra. Since there was no evidence that the statement influenced the actions of the Duke
administrators, the claim was dismissed.

Next the court analyzed the claim that Duke did not properly investigate the Fraternity or
the residents of the house where the party was hosted. Evidence showed that Rouse was raped,
that there was alcohol provided at the party, that women were unknowingly drinking spiked
punch which may have contributed to the rape, and that Duke did not investigate the event due to
the fact that the house was owned by a significant financial donor. However, the claim could not
be upheld because there is no proof that the lack of investigation caused further sexual
harassment following the assault. Rouse was unable to provide evidence of additional
harassment following the rape or evidence that the failure to investigate led to her leave of
absence or her decision to transfer. It was also found that Duke fully cooperated with the police
and law enforcement during the criminal investigation of the rape and suspended the resident
who was caught with drugs. Since Rouse did not experience further harassment due to the lack of
investigation there is no claim that the lack of investigation caused a hostile educational
environment.

Rouses claims that Duke refused to make proper and necessary accommodations for her
by refusing to allow her to complete her courses from home were also found insufficient. This
claim was found Invalid for two reasons. First, Duke provided plenty of academic and personal
support following the assault. Second, there was no evidence that the refusal was based on
gender and therefore the case does not fall under Title IX liability. There was also evidence that
Rouse was offered the chance to complete two of her lectures from home, but she decided
against the offer. Her claims that she was not permitted to sign up for the fall 2008 courses she
wanted was also proven invalid due to lack of evidence.

Rouses final argument under the hostile educational environment claim stated that Dean
McKay encouraged her to transfer, misinterpreted her interest to take courses at another
institution as transferring, and then barred her from re-enrolling at Duke in the future. Seeing as
Rouse used the word transfer in the email to Dean McKay, which is taken to mean that she
intended to enroll at another institution, her argument held no merit in the eyes of the court. This
was further upheld by the lack of evidence that Rouse informed Dean McKay that she intended
for the transfer to be temporary.

Rouses claims of negligence, negligent and intentional infliction of emotional distress

and breach of contract fell under state law claims. In terms of negligence, North Carolinas
negligence claim constitutes that there is a legal duty, breach of that duty, and injury proximately
caused by that breach. The court found that Dean McKay owed Rouse no special treatment
including an outline of campus policy. Rouse had the ability to find the policy about not being
able to transfer back to Duke. Furthering the argument, Rouse admitted that she had no intention
to return at the time of the meeting and Dean McKay had no reason to believe that Rouse would
intend on returning. Because of this, Rouse cannot prove that Duke violated duty of care or that
the letter sent by Dean McKay caused injury of any kind. The negligence claim was dismissed.

Rouse also filed a claim that Duke University caused negligent infliction of emotional
distress. She made this claim in terms of McKays letter notifying Rouse that she forfeited her
ability to re-enroll at Duke. Claims under negligent infliction of emotional distress must prove
that the defendant was negligent, that it was reasonably foreseeable that such conduct would
cause the plaintiff severe emotional distress, and that the conduct led to severe emotional distress
of the plaintiff. Rouse could not provide evidence that Dean McKay showed negligence by
sending the letter in December 2007 and she stated that she was not really worried about the
letter at the time of receiving it because she had no intention of returning to Duke. There was
also no evidence that Rouse suffered emotional distress from the letter and no evidence that
Dean McKay tricked Rouse into transferring. Because of this Duke was awarded summary
judgment on the claim.

The final claim was breach of contract. Since Rouse told Dean McKay that she planned
to transfer, she did not tell anyone at the school that she planned to transfer, and there was no
evidence to support the claim, the claim was dismissed. Once again, Duke received summary
judgment.

After carefully analyzing each of the claims the U.S. district court awarded summary
judgment to the defendants. The Law of Higher Education defines summary judgment as, a
judgment on the merits issued by a trial court prior to and in lieu of a trial (Kaplin, 2007, p.
853). Duke University argued that the plaintiff had no case, and the court appeased this
judgment, therefore closing the case.

Importance to Higher Education Administrators

This case is relevant for higher education administrators as they consider the creation and
implementation of campus policies. Negligence was one of the main issues brought up in this
case which highlights the importance of having policies in place to prevent litigation. In order to
prove negligence the plaintiff must be able to show evidence that the defendant had the duty to
protect, that they breached that duty by not providing standard of care, that there was proximate
cause for the incident, and that actual injury took place. If higher education administrators are
aware of these standards when creating their rules and policies, they can avoid loopholes and
ensure that the university is keeping the students safe to the best of their ability.

Not only is it crucial to create formidable policies, but the university officials must then
follow the policies. Had the administration at Duke not followed their judicial hearing policies
and cooperated with the police in the sexual assault investigation, they may have faced bigger
issues. Similarly, Dean McKay followed the campus policies throughout her communication
with Rouse, which helped her avoid being prosecuted for creating and maintaining a hostile
educational environment or causing caused negligent infliction of emotional distress.

Finally, this case shines light upon the importance of universities having understanding of
Title IX requirement and restrictions. The law claims that no one shall be discriminated against
based on sex in terms of participation or benefits by any institution receiving Federal financial
assistance. Many institutions that receive financial aid now have offices dedicated specifically to
interpreting and upholding the standards of Title IX. By paying special attention to the mandates
established by Title IX university officials can be cautious about following the regulations and
providing adequate support for their students. This case highlights the importance of
communication within a university as well as the importance of detailed and lawful policies.
Additional References

Kaplin, W. A., & Lee, B. A. (2007) The law of higher education (5th ed.). San Francisco, CA:
Jossey-Bass.

Duke University Bulletin Including Policy against Readmitting Transferred Students

https://registrar.duke.edu/university-bulletins/duke-university-bulletins-policy

U.S. Department of Education Website Provides Information and Clarification on the
Regulations of Title IX
http://www2.ed.gov/about/offices/list/ocr/docs/tix_dis.html