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Thursday, May 29, 2014

Durham judge: Duke student accused of sexual misconduct to remain in limbo

Posted by on Thu, May 29, 2014 at 4:17 PM

UPDATED 4:17 WITH RESPONSE FROM DUKE

A Durham judge ruled this morning on the preliminary injunction case of Lewis McLeod, a Duke senior who was expelled for sexual misconduct three days before his final exams last month, even though he was never criminally charged.

Both sides are claiming partial victory.

This morning, after a four-day hearing last week, Superior Court Judge W. Osmond Smith III did not compel Duke to immediately issue McLeod the degree that he says is necessary to begin his job at a Wall Street firm in July. However, Smith also ruled that Duke may not go forward with its official expulsion until a victory at trial, keeping McLeod—and his potential degree—in limbo until then.

McLeod says the sexual encounter with the freshman who accused him last fall of rape was consensual. Earlier this month he sued Duke for breach of contract.

McLeod, a citizen of Australia, says he can remain in the country until July 11, when the grace period of his expired student visa runs out. If both parties agree to fast-track the trial, it is possible that the matter can be resolved before then. Otherwise, he will be forced to return to Australia and abandon his Wall Street job offer, he says.

But even if he sacrifices his job, McLeod's lawyer, Rachel B. Hitch, says that Smith, with his ruling, confirmed McLeod would likely prevail in trial.

"We view this injunction as very hopeful news," said Hitch, adding, "in our opinion it is an extremely strong indication that Duke has acted improperly, unfairly and illegally."

Duke administrators, however, are also satisfied with the ruling. "We are pleased the Court recognized the need to preserve the integrity of Duke’s decision not to issue a degree at this point in the lawsuit," said Michael Schoenfeld, the university's vice president for public affairs and government relations. "Duke follows federal legal requirements for complaints of student sexual misconduct and works very hard to make sure the process is fair and just in every case.”

In his four-page ruling, Smith said: "The plaintiff has demonstrated a likelihood of success on the merits as to his contentions that the defendant has breached, violated, or otherwise deprived the plaintiff of material rights related to the misconduct allegations against him and the resulting disciplinary process addressing such allegations." However, he added, "this is not a finding as to whether or not the plaintiff is likely to ultimately prevail on the merits in obtaining his desired permanent injunctive relief of requiring the defendant to grant the plaintiff a degree from Duke University."

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