MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 307

RESPONSE in Opposition re #297 First MOTION to Compel filed by DUKE UNIVERSITY. Replies due by 11/2/2012. (Attachments: #1 Exhibit 1- Email from Ms. Wells to Mr. Ekstrand, #2 Exhibit 2- Transcript from Rule 26(f) Conference, #3 Exhibit 3- Email from Mr. Ellis to Mr. Ekstrand, #4 Exhibit 4- Dukes Responses to Plaintiffs First Requests for Production, #5 Exhibit 5- Dukes Responses to Plaintiffs Third Requests for Production, #6 Exhibit 6- Dukes Responses to Plaintiffs First Set of Interrogatories, #7 Exhibit 7- Dukes Amended Responses to Plaintiffs First Set of Interrogatories, #8 Exhibit 8- Dukes First Supplemental Response to Plaintiffs Third Requests for Production, #9 Exhibit 9- Dukes Responses to Plaintiffs Fourth Requests for Production, #10 Exhibit 10- Dukes Responses to Plaintiffs Second Set of Interrogatories, #11 Exhibit 11- Subpoena to Richard Brodhead, #12 Exhibit 12- Duke Universitys Response to Plaintiffs First Requests for Admissions)(SUN, PAUL)

EXHIBIT 11

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the
__________ District of __________
Middle District of North Carolina
Ryan McFadyen, et al.,
Plaintiff

v.
Duke University, et al.,
Defendant

)
)
)
)
)
)

Civil Action No.

1:07-cv-953-JAB-JEP

(If the action is pending in another district, state where:
__________ District of __________

)

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
To: Dr. Richard Brodhead
c/o Ellis & Winters, 100 Crescent Green, #200, Cary, North Carolina 27518

✔
u Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following
documents, electronically stored information, or objects, and permit their inspection, copying, testing, or sampling of the
material: See Exhibit "A" Attached.

Place: Ekstrand & Ekstrand LLP

Date and Time:

811 Ninth Street, Suite 260
Durham, North Carolina 27705

09/21/2012 6:00 pm

u Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:

The provisions of Fed. R. Civ. P. 45(c), relating to your protection as a person subject to a subpoena, and Rule
45 (d) and (e), relating to your duty to respond to this subpoena and the potential consequences of not doing so, are
attached.
Date:

09/15/2012

CLERK OF COURT
OR
/s/ Stefanie A. Smith
Signature of Clerk or Deputy Clerk

Attorney’s signature

The name, address, e-mail, and telephone number of the attorney representing (name of party)
Ryan McFadyen,
, who issues or requests this subpoena, are:
Matthew Wilson, and Breck Archer
Robert C. Ekstrand (NC Bar No. 26673) and Stefanie A. Smith (NC Bar No. 42345), Ekstrand & Ekstrand LLP
811 Ninth Street, Suite 260, Durham, North Carolina 27705
Phone Number: [phone] Email Addresses: [e-mail], [e-mail]

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. 1:07-cv-953-JAB-JEP
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
This subpoena for (name of individual and title, if any)
was received by me on (date)

.

u I served the subpoena by delivering a copy to the named person as follows:
on (date)

; or

u I returned the subpoena unexecuted because:
.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness fees for one day’s attendance, and the mileage allowed by law, in the amount of
$
My fees are $

.
for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc:

0.00

.

AO 88B (Rev. 06/09) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), and (e) (Effective 12/1/07)
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or
attorney responsible for issuing and serving a subpoena must take
reasonable steps to avoid imposing undue burden or expense on a
person subject to the subpoena. The issuing court must enforce this
duty and impose an appropriate sanction — which may include lost
earnings and reasonable attorney’s fees — on a party or attorney
who fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or
to permit the inspection of premises, need not appear in person at the
place of production or inspection unless also commanded to appear
for a deposition, hearing, or trial.
(B) Objections. A person commanded to produce documents or
tangible things or to permit inspection may serve on the party or
attorney designated in the subpoena a written objection to
inspecting, copying, testing or sampling any or all of the materials or
to inspecting the premises — or to producing electronically stored
information in the form or forms requested. The objection must be
served before the earlier of the time specified for compliance or 14
days after the subpoena is served. If an objection is made, the
following rules apply:
(i) At any time, on notice to the commanded person, the serving
party may move the issuing court for an order compelling production
or inspection.
(ii) These acts may be required only as directed in the order, and
the order must protect a person who is neither a party nor a party’s
officer from significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party’s officer
to travel more than 100 miles from where that person resides, is
employed, or regularly transacts business in person — except that,
subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where
the trial is held;
(iii) requires disclosure of privileged or other protected matter, if
no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by
a subpoena, the issuing court may, on motion, quash or modify the
subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information;
(ii) disclosing an unretained expert’s opinion or information that
does not describe specific occurrences in dispute and results from
the expert’s study that was not requested by a party; or
(iii) a person who is neither a party nor a party’s officer to incur
substantial expense to travel more than 100 miles to attend trial.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(c)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under
specified conditions if the serving party:
(i) shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably
compensated.

(d) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information.
These procedures apply to producing documents or electronically
stored information:
(A) Documents. A person responding to a subpoena to produce
documents must produce them as they are kept in the ordinary
course of business or must organize and label them to correspond to
the categories in the demand.
(B) Form for Producing Electronically Stored Information Not
Specified. If a subpoena does not specify a form for producing
electronically stored information, the person responding must
produce it in a form or forms in which it is ordinarily maintained or
in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One
Form. The person responding need not produce the same
electronically stored information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored
information from sources that the person identifies as not reasonably
accessible because of undue burden or cost. On motion to compel
discovery or for a protective order, the person responding must show
that the information is not reasonably accessible because of undue
burden or cost. If that showing is made, the court may nonetheless
order discovery from such sources if the requesting party shows
good cause, considering the limitations of Rule 26(b)(2)(C). The
court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed
information under a claim that it is privileged or subject to
protection as trial-preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents,
communications, or tangible things in a manner that, without
revealing information itself privileged or protected, will enable the
parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as trialpreparation material, the person making the claim may notify any
party that received the information of the claim and the basis for it.
After being notified, a party must promptly return, sequester, or
destroy the specified information and any copies it has; must not use
or disclose the information until the claim is resolved; must take
reasonable steps to retrieve the information if the party disclosed it
before being notified; and may promptly present the information to
the court under seal for a determination of the claim. The person
who produced the information must preserve the information until
the claim is resolved.
(e) Contempt. The issuing court may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena. A nonparty’s failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at a
place outside the limits of Rule 45(c)(3)(A)(ii).

EXHIBIT A
DEFINITIONS
As used in this subpoena’s Exhibit A, the following words and phrases have the
following meanings:
1. “Civil Action” means the above-captioned civil action styled as McFadyen, et al. v. Duke
University, et al., and contained in the Middle District as File No. 1:07-CV-953-JAB-JEP.
2. Any defined term herein used shall have the meaning given to it in the Second Amended
Complaint in this matter, unless otherwise defined herein. The Second Amended
Complaint is available online through the PACER website
(https://pacer.login/uscourts.gov/cgi-bin/login.pl)/. Alternatively, if you would like a
copy of the Second Amended Complaint, you may contact the attorney who signed the
subpoena, and he or she will provide you with a copy.
3. “Document” is used in its broadest possible sense, and includes, but is not limited to,
Electronically Stored Information (defined below), every item listed in the Federal Rule
of Civil Procedure 34(a), and any written, printed, typed, computerized, programmed or
graphic matter of any kind or nature, however produced or reproduced, including files
maintained electronically, and all mechanical or electronic sound recording or transcripts
thereof, however produced or reproduced, including but not limited to, letters, notes,
emails, memoranda, reports, envelopes, summaries of conversations or conferences,
studies, analyses, bulletins, instructions, inter- and intra-office communications, charts,
graphs, photographs, anything stored on personal data machine such as a mobile phone,
palm pilot, iPhone, iTouch, iPad, Android, Blackberry, or any similar device, and all
forms of data compilations and recordings. A draft or near-identical copy of a document
is a separate document within the meaning of this term.
4. “Electronically Stored Information” or “ESI” means all electronic communications (e.g.,
e-mail, texts, posts, blogs, and the like), electronic documents, or any other form of
electronically stored information--including writings, drawings, graphs, charts,
photographs, sound recordings, images, and other data or data compilations--stored in
any medium from which information can be obtained either directly or, if necessary, after
translation by the responding party into a reasonably usable form for production
pursuant to this subpoena.
5. “Missing” documents or electronically stored information include any document or ESI
that was, but is no longer in your possession, custody, or control. When called for in this
subpoena, you must identify the missing material as such, and for each missing document
and all missing electronically stored information, you must state whether it is:
a. missing or lost;

b. destroyed;
c. otherwise disposed of, and, if so, in what manner; and
d. for each instance, explain the circumstances surrounding any authorization
for such disposition and state the approximate date thereof.
6. “Plaintiffs” shall mean the named Plaintiffs in this action, Ryan McFadyen, Matthew
Wilson, and Breck Archer.
7. The terms “and” and “or” shall be construed conjunctively or disjunctively as necessary
to make requests inclusive rather than exclusive.
8. The term “all” means everything, tangible or intangible, known to you or which can be
discovered by diligent efforts.
9. Where appropriate, the use of the singular shall include the plural, the use of the plural
shall include the singular, the use of the masculine shall include the feminine, and the use
of the feminine shall include the masculine.
10. “Relate to” or “relates to” means referring to, reflecting, containing, pertaining, referring,
indicating, relating, showing, describing, evidencing, discussing, mentioning, or
concerning.
11. In answering this subpoena, furnish such information as is available to you, not merely
such information that is known by, available to, or in the possession of your employees,
representatives, servants, or agents, including your attorney or any agent or investigator
for you or your attorney (unless privileged).
12. For any document no longer in your possession, custody, or control, identify the
document, state whether it is missing, lost destroyed, transferred to others or otherwise
disposed of, and identify any person who currently has custody or control of the
document or who has knowledge of the contents of the document.
13. If you claim privilege as grounds for objection in response to any part of this subpoena,
identify:
a. the names and address of the speaker or author of the document;
b. the date of the communication or document;
c. the name and address of any person to whom the communication was
made or the document was sent or to whom copies were sent or circulated
at any time;
d. the form of the communication or document (i.e. letter, memorandum,
invoice, contract, etc.);
e. the title and length of the document;

f. the names and addresses of any person currently in possession of the
document and a copy thereof;
g. a detailed description of the communication or document; and
h. the nature of the privilege claimed.
14. “March 14, 2006 Email” is the text alleged to have been sent from Ryan McFadyen’s
email account during the early morning hours of March 14, 2006 and published in the
application for the warrant to search Ryan’s residence and vehicle, which Durham Police
obtained and executed on March 27, 2006. The search warrant which contains the text
of the email has been attached for your reference. The text of the email can be found on
the page of the attached search warrant with Bates No. Pls.00008400 at the bottom right
corner.
15. “Duke University Administrator” includes all employees of Duke University’s Office of
Student Affairs, Duke University’s Office of Judicial Affairs, President Richard
Brodhead, Members of Duke University’s Board of Trustees, staff of Duke University’s
President’s Office, Provost Peter Lange, John Burness, Richard Riddell, Joseph Alleva,
Christopher Kennedy, Aaron Graves, Robert Dean, Kemel Dawkins, Paul Haagen, Chris
Cramer, and members of the Crisis Management Team (defined below).
16. “Crisis Management Team” includes President Richard Brodhead, Provost Peter Lange,
Executive Vice President Tallman Trask, Senior Vice President for Public Affairs John
Burness, Vice President for Student Affairs Larry Moneta, Chancellor for Health Affairs
and CEO of DUHS Victor Dzau, Secretary of the University Allison Haltom, Chair of
the Athletic Council Kathleen Smith, and Vice President for Institutional Equity Ben
Reese.
17. “Communication” is used in the broadest sense and includes, but is not limited to, the
actual or attempted imparting or interchange of thoughts, opinions, or information by
speech, writing, signs, or electronic medium, whether or not a thought, opinion or other
information is actually received or understood by the person(s) to whom it is directed.
18. “Judicial Affairs Report” is the Report titled An Examination of Student Judicial Process and
Practices, authored by the Academic Council Student Affairs Committee, addressed to
President Richard Brodhead and Professor Paul Haagen, Executive Committee of the
Academic Council, and dated May 1, 2006. The Chair of the Committee that produced
this report was Prasad Kasibhatla. The Judicial Affairs Report is attached for your
reference (Bates Nos. Pls.00008273-8286 at the bottom right corner).
19. “Ryan’s Parents” include Sherri and John McFadyen.
20. “Matt’s Parents” include Melinda and Peter Wilson.

21. “Breck’s Parents” include Madolin and Robert Archer.
22. The terms “You” and “Your” refer to Richard Brodhead, including all persons acting on
your behalf.

DOCUMENTS AND TANGIBLE THINGS REQUESTED
1. All Documents relating to the disciplinary proceedings of Matthew Wilson between May
24, 2006 and October 1, 2006.
2. All Documents relating to Matthew Wilson’s Appeal of the Undergraduate Judicial Board
Hearing panel’s decision between May 24, 2006 and October 1, 2006.
3. All written communications (or documents that refer to non-communications)
exchanged between You and any Duke University Administrator relating to the
disciplinary proceedings of Matthew Wilson between May 24, 2006 and October 1, 2006.
4. All written communications (or documents that refer to non-communications)
exchanged between You and any Duke University Administrator relating to Matthew
Wilson’s Appeal of the Undergraduate Judicial Board Hearing panel’s decision between
May 24, 2006 and October 1, 2006.
5. All written communications (or documents that refer to non-communications)
exchanged between You and Matt’s Parents relating to the disciplinary proceedings of
Matthew Wilson between May 24, 2006 and October 1, 2006.
6. All written communications (or documents that refer to non-communications)
exchanged between You and Matt’s Parents relating to Matthew Wilson’s Appeal of the
Undergraduate Judicial Board Hearing panel’s decision between May 24, 2006 and
October 1, 2006.
7. All Documents relating to the disciplinary proceedings of Breck Archer between August
1, 2004 and August 1, 2005.
8. All Documents relating to Breck Archer’s Appeal of the Undergraduate Judicial Board
Hearing panel’s decision between April 1, 2005 and August 1, 2005.
9. All written communications (or documents that refer to non-communications)
exchanged between You and any Duke University Administrator relating to the
disciplinary proceedings of Breck Archer between August 1, 2004 and August 1, 2005.

10. All written communications (or documents that refer to non-communications)
exchanged between You and any Duke University Administrator relating to Breck
Archer’s Appeal of the Undergraduate Judicial Board Hearing panel’s decision between
April 1, 2005 and August 1, 2005.
11. All written communications (or documents that refer to non-communications)
exchanged between You and Breck’s Parents relating to the disciplinary proceedings of
Breck Archer between August 1, 2004 and August 1, 2005.
12. All written communications (or documents that refer to non-communications)
exchanged between You and Breck’s Parents relating to Breck Archer’s Appeal of the
Undergraduate Judicial Board Hearing panel’s decision between April 1, 2005 and August
1, 2005.
13. All Documents relating to the disciplinary proceedings for Duke University students
charged with Driving While Intoxicated or Driving While Impaired from August 1, 2005
to the present.
14. All written communications (or documents that refer to non-communications)
exchanged between You and any Duke University Administrator relating to the
disciplinary proceedings for Duke University students charged with Driving While
Intoxicated or Driving While Impaired from August 1, 2005 to the present.
15. All Documents relating to the interim suspension of Ryan McFadyen from March 27,
2006 to October 1, 2007.
16. All Documents relating to the March 14, 2006 Email from March 14, 2006 to October 1,
2007.
17. All Documents relating to any investigation of the March 14, 2006 Email from March 14,
2006 to October 1, 2007.
18. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the interim
suspension of Ryan McFadyen from March 27, 2006 to October 1, 2007.
19. All written communications (or documents that refer to non-written communications)
exchanged between You and Ryan’s Parents relating to the interim suspension of Ryan
McFadyen from March 27, 2006 to October 1, 2007.
20. All written communications (or documents that refer to non-written communications)
exchanged between You and Glen Bachman relating to the interim suspension of Ryan
McFadyen from March 27, 2006 to October 1, 2007.

21. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the March
14, 2006 Email from March 14, 2006 to October 1, 2007.
22. All written communications (or documents that refer to non-written communications)
exchanged between You and Ryan’s Parents relating to the March 14, 2006 Email from
March 14, 2006 to October 1, 2007.
23. All written communications (or documents that refer to non-written communications)
exchanged between You and Glen Bachman relating to the March 14, 2006 Email from
March 14, 2006 to October 1, 2007.
24. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to any
investigation of the March 14, 2006 Email from March 14, 2006 to October 1, 2007.
25. All Documents relating to the email1 sent by Chauncey Nartey to Mike Pressler from
March 27, 2006 to September 1, 2006.
26. All Documents relating to any investigation of the email sent by Chauncey Nartey to
Mike Pressler from March 27, 2006 to September 1, 2006.
27. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the email
sent by Chauncey Nartey to Mike Pressler from March 27, 2006 to September 1, 2006.
28. All Documents relating to the Judicial Affairs Report from March 14, 2006 to September
15, 2006.
29. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the Judicial
Affairs Report from March 14, 2006 to September 15, 2006.
30. All Documents relating to the attached Application for Disclosure of Customer Account
Information and Order. (The Application for Disclosure of Customer Account
Information and Order are attached for your reference with Bates Nos. Pls.0000840100008402 at the bottom right corner.)
1 The email which was sent from Chauncey Nartey to Mike Pressler on March 27, 2006 which contained the subject line
“WHAT IF JANET LYNN WERE NEXT???” has been attached for your reference (the document has Bates Nos.
Pls.00022346-00022347 at the bottom right corner) for this request and requests 26 and 27.

31. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the attached
Application for Disclosure of Customer Account Information and Order. (The
Application for Disclosure of Customer Account Information and Order are attached for
your reference with Bates Nos. Pls.00008401-00008402 at the bottom right corner.)
32. All Documents relating to the Ryan McFadyen Situation/Timeline2 from March 14, 2006
to September 15, 2006.
33. All written communications (or documents that refer to non-written communications)
exchanged between You and any Duke University Administrator relating to the Ryan
McFadyen Situation/Timeline from March 14, 2006 to September 15, 2006.

2 This document was authored by Eric Van Danen and has been marked as Confidential by your counsel, Ellis &
Winters LLP. Please contact Ellis & Winters, LLP for access to this document so that you can comply with this request
and request 33.

Pls.#00008394

Pls.#00008395

Pls.#00008396

Pls.#00008397

Pls.#00008398

Pls.#00008399

Pls.#00008400

Pls.#00008401

Pls.#00008402

Pls.#00008403

Pls.#00008404

AN EXAMINATION OF STUDENT JUDICIAL PROCESS AND PRACTICES

Report from
Academic Council Student Affairs Committee (ACSAC)
to
President Richard Brodhead
and
Prof. Paul Haagen, Executive Committee of the Academic Council

May 1, 2006

Pls.#00008273

1. INTRODUCTION
1.1 Charge to the Committee
On April 4, 2006, the Academic Council Student Affairs Committee (ACSAC) was
charged by Executive Committee of the Academic Council of Duke University to
examine the student judicial process and practices. As stated in President Richard
Brodhead’s letter to the Duke community on April 5, 2006, the review was
commissioned to address questions raised within the Duke and Durham communities
about the way Duke deals with problems of student behavior and the applicability of the
Duke Community Standard to social life. The charge specifically instructed ACSAC to
answer the following questions:
• Do the Community Standard and the policies which apply to student behavior
adequately convey Duke's values and behavioral expectations?
• Are there distinctions between on campus and off campus behaviors, and is Duke's
approach to adjudication of those behaviors appropriate?
• Are there limitations in the policies which prevent various behaviors from being
addressed appropriately and effectively?
• How has Duke responded when students face both criminal (or civil) charges as well as
campus judicial charges? Has this created problems and should there be changes to our
approach?
• Given the requirements of FERPA, how can both the Duke and Durham communities
be better informed about disciplinary actions that are taken?
1.2 The Review Process
This review focuses on the judicial process as applicable to undergraduate students.
ACSAC began its process of review by obtaining relevant information on Duke’s official
regulations and policies pertaining to the student judicial process from the Office of
Student Affairs. The Committee also sought written input from various individuals on
campus with some connection to the student judicial process. These include the
heads/chairs of Office of Institutional Equity (OIE), Undergraduate Judicial Board (UJB),
University Judicial Board, the Greek Judicial Board (GJB), Appellate Board, Academic
Integrity Council (AIC), and Honor Council. Written input was also received from a
subgroup of Trinity College Academic Deans, Stephen Bryan (Associate Dean of
Students and Director of Judicial Affairs), and Brad Berndt (Assistant Athletic Director).
Written input was also received from a number of Duke faculty members in response to a
request directed to the members of the Academic Council through the Executive
Committee of the Academic Council. In addition, phone interviews were conducted with
Ms. Polly Weiss (Office of Institutional Equity), and Dr. Donna Lisker and Dr. Jean
Leonard (Women’s Center). Input was also received from the Board of the Duke
University Black Alumni Connection (DUBAC), by the Concerned Citizens at Duke, 2
Duke parents, and 1 Duke alumnus.

Pls.#00008274

The Committee also considered the views expressed by the community outside Duke.
Letters were sent to Mr. John Dagenhart (President, Trinity Park Neighborhood
Association), Ms. Risa Foster (ex-President, Trinity Heights Neighborhood Association),
and Dr. Nancy Hill ( President, Trinity Heights Neighborhood Association) requesting
information specifically on unresolved issues relating to the process by which Duke deals
with complaints about student misconduct from the residents of the respective
neighborhoods. In response, the committee received letters from 2 residents of Trinity
Heights and 7 residents of Trinity Park. Two of the Committee members also personally
interviewed Ms. Risa Foster, who followed up by forwarding to the Committee several
past email exchanges involving student misconduct in the Trinity Heights neighborhood.
Finally, the Committee received input from Durham city officials. The City Manager, Mr.
Patrick Baker, and City Councilman Mr. Thomas Stith III and City Councilman Mr.
Eugene Brown attended separate Committee meetings. In addition, the chair of the
Committee participated in an interview with Captain Ed Sarvis of the Durham Police
Department conducted by the committee exploring the lacrosse culture at Duke.
The information gathered during this process was examined and analyzed by the
Committee. In particular, the following 8 committee members were involved
substantially in the deliberations:
Aura Gimm, faculty, Biomedical Engineering
Prasad Kasibhatla (chair), faculty, Nicholas School of the Environment & Earth Sciences
Jacqueline Looney, Associate Dean for Graduate Student Affairs
Rachel Lovingood, graduate student, Department of Cell Biology
Marjorie McElroy, faculty, Economics
Caroline Haynes, faculty, Associate Dean for Medical Education, School of Medicine
Benjamin Ward, faculty, Philosophy
Gary Ybarra, faculty, Electrical and Computer Engineering
We present below background information relevant to the charge to the Committee and a
summary of the key themes that emerged during our deliberations. We follow with a
presentation of key findings that are the considered judgment of the Committee, and
conclude with a list of recommendations that flow from these findings.

Pls.#00008275

2. BACKGROUND AND DISCUSSION
2.1 The Duke Community Standard (DCS)
The DCS is the University’s honor code, and articulates the core values and principles of
the institution. The DCS was adopted in the fall of 2003, following a review of the
existing Honor Code by the Academic Integrity Council (AIC). It is important to note
that, while the DCS is a statement of broad principles, the AIC was formed with the
narrower goal of improving the climate of academic integrity on campus. The DCS
states:
Duke University is a community of scholars and learners, committed to the principles of
honesty, trustworthiness, fairness, and respect for others. Students share with faculty and
staff the responsibility for promoting a climate of integrity. As citizens of this community,
students are expected to adhere to these fundamental values at all times, in both their
academic and non-academic endeavors.
First-year students commit to the principles of the DCS at the start of their studies at
Duke by participate in a ceremonial signing of a pledge immediately following
convocation. The pledge states:
Students affirm their commitment to uphold the values of the Duke University community
by signing a pledge that states:
1. I will not lie, cheat, or steal in my academic endeavors, nor will I accept the actions of
those who do.
2. I will conduct myself responsibly and honorably in all my activities as a Duke student.
All students reaffirm their commitment to the principles of the DCS by signing a
statement to that effect upon the completion of every academic assignment. The
reaffirmation statement states:
“I have adhered to the Duke Community Standard in completing this assignment.”
[Student Signature]
The Bulletin of Information and Regulations emphasizes academic integrity in the
context of the DCS. Specifically, the bulletin affirms that the DCS not only requires
students to uphold the highest standards of academic integrity in their own endeavors, but
also obligates students to not accept violations of academic integrity by others.
It is the view of the Committee that the DCS, in and of itself, articulates the core values
of the University. However, the focus on academic endeavors in the presentation and
affirmation of the DCS during the course of student life, combined with its historical
basis, has resulted in the standard being perceived as primarily applicable to integrity in
academic endeavors only. To the extent that the DCS is viewed as expressing general
standards of behavior, it is perceived as applying principally to interactions within the
University community only. It is worth noting that there is widespread agreement with
regards to this assessment among the various University constituencies that provided
input to the Committee.

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2.2 University Judicial Policies and Judicial Process
The specific rules and regulations pertaining to student conduct are codified in the
University judicial policies which are published in the Bulletin of Information and
Regulations. The policies cover a comprehensive range of academic and non-academic
endeavors, including but not limited to: Academic Dishonesty, Alcohol, Disorderly
Conduct, Noise, and Sexual Misconduct. The Bulletin of Information and Regulations
also details the judicial process involved in adjudicating allegations of student
misconduct.
In terms of the Duke judicial process, all cases involving violations of University policy
are within the jurisdiction of the Office of Judicial Affairs, which falls within the
Division of Student Affairs. The Director of the Office of Judicial Affairs reports to the
Dean of Students, who in turn reports to the Vice President for Student Affairs. It is
worth noting that a significant fraction of disciplinary cases are resolved informally by
Residence Coordinators. During the 2003-2005 period, approximately 70% of
disciplinary cases were adjudicated in this manner.
The formal disciplinary process is described in detail in the Bulletin of Information and
Regulations and can involve an administrative hearing, an Undergraduate Judicial Board
hearing, or a Greek Judicial Board hearing. In practice, most cases involve administrative
hearings in which a hearing officer determines responsibility and imposes sanctions if
appropriate. Faculty involvement in the judicial process is in the form of participation in
Undergraduate Judicial Board hearing panels.
When students are charged criminally, the Office of Judicial Affairs launches an
investigation, typically upon receipt of a police report describing the arrest or citation.
As stipulated in the Bulletin of Information and Regulations, the judicial process may run
concurrent with criminal action. However, if a student requests that the university process
be placed on hold until the criminal case is resolved, this request is usually granted. If an
allegation is serious and represents a threat to the university community, interim actions
may be taken, such as an interim suspension. A challenge to waiting is that the criminal
case is often postponed (continued) in the courts, creating an indefinite delay for the
University’s disciplinary process. Request for postponement have been occasionally
granted when the charges have been relatively minor and deferred prosecution has
seemed likely.
The Committee’s assessment is that the judicial policies are quite comprehensive in
scope, and clearly identify conduct that is not in keeping with the core values articulated
in the DCS. Nevertheless, there is a disconnect in the sense that the judicial policies are
not viewed as being grounded in the DCS. Rather, the judicial policies are perceived as a
list of prohibited behaviors which can result in University disciplinary actions. In
addition, the Bulletin of Information and Regulations does not highlight and prioritize
judicial polices in terms of their importance in relation to the behavioral values expressed
in the DCS.

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The Committee also notes that there is little faculty engagement in the judicial process,
and inadequate reporting of disciplinary actions to faculty governance bodies such as
Academic Council and advisory bodies such as Athletic Council. These deficiencies are
symbolic of the pervasive disconnect between student academic and non-academic life.
2.3 Alcohol and Student Misconduct
A major issue in the context of this review is Duke’s judicial philosophy related to the
use and abuse of alcohol. Specifically, the Committee examined the role of alcohol in
student misconduct as well as Duke’s policies and approach to adjudicating alcoholrelated misconduct. We provide below our perspective of the role of alcohol in student
misconduct, and follow with a discussion of the extent to which Duke’s judicial policies
and practices are addressing these issues.
An initial perspective on the role of alcohol in student misconduct can be gained by
examining the official disciplinary statistics published by the University. Comprehensive
disciplinary statistics for 2003-2005 period are available on the Office of Judicial Affairs
website. During this time period, of the 150-170 formal charges filed per year for nonacademic judicial violations, 40-50% were specifically for violations of the alcohol
policy. In addition, 350-400 student misconduct cases were handled by the Residence
Coordinators each year, and a significant fraction of these involved alcohol use and
abuse. Examination of the separate alcohol statistics summaries shows that roughly 300350 violations of the alcohol policy come to the attention of the Office of Judicial Affairs
every year. An examination of the judicial statistics related to off-campus misconduct
during Fall 2005 is also revealing. Of the 126 violations, 107 were specifically for
violation of the alcohol policy. It is worth noting that a majority of these violations arose
from charges stemming from a special law enforcement campaign carried out by the
North Carolina Alcohol Law Enforcement agency during the first weekend of the Fall
2005 semester. This strongly suggests that the actual number of alcohol policy violations
is significantly higher than what is reflected in the official statistics. Finally, there are
roughly 30-50 alcohol-related medical calls to DUPD/EMS every year; in general these
numbers are not reflected in the disciplinary statistics due the health and safety amnesty
clause in the alcohol policy. Furthermore, a perusal of the narrative record related to
these calls reveals the severity of alcohol abuse, with a large fraction of cases involving
repeated episodes of vomiting and loss of consciousness.
It is also clear that alcohol use and abuse is the major underlying factor in both offcampus and on-campus student misconduct. Conversations with the staff of the Women’s
Center reveal that alcohol is involved in 70-80% of the roughly 60 cases of sexual assault
complaints that are received by the center per year. From an off-campus perspective,
neighborhood residents and police are in broad agreement that alcohol abuse underlies
most of the ‘public nuisance’ complaints against students. The same is true for
misconduct in on-campus residences. Dean Bryan is categorical in his assessment that
alcohol use and abuse is the major underlying factor in terms of student misconduct. This
view is endorsed by the review Committee.

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The review Committee also finds that there is inconsistent enforcement of the University
alcohol policy. This inconsistency is most acutely manifested in the University’s
tolerance of large-scale violations of its alcohol policy at events such as Tailgate and Last
Day of Classes. It is our understanding that these events, which are essentially
‘sponsored’ by the University, involve egregious violations of the alcohol policy that
exceed in severity the violations that are generally adjudicated by the Office of Judicial
Affairs. In effect, the University is violating its own written alcohol policies regarding
group-sponsored social functions, which state in part
‘A group is responsible for reasonable monitoring of underage drinking and may be
sanctioned if the lack of monitoring leads, or could lead, to unsafe/irresponsible behavior
and/or community expectations violations. Additionally, groups are expected to ensure
that unsafe/irresponsible behavior and/or violations of community expectations do not
occur’.
The Committee concludes that inconsistent enforcement of the University alcohol policy
severely undermines its effectiveness.
2.4. Duke-Durham Issues Related to Student Misconduct
The Committee devoted a significant portion of its time to examining issues related to
off-campus student misconduct, and Duke’s role in dealing with such misconduct. We
provide below our assessment of the defining characteristics of these issues and the
extent to which Duke is addressing the concerns of the Durham community, and identify
issues that remain to be addressed.
We begin by noting that the problem of off-campus student misconduct can generally be
viewed as one that is geographically restricted in the sense that most complaints seem to
involve the Trinity Height and Trinity Park neighborhoods off East Campus. The
complaints typically involve misconduct that can be classified as ‘nuisance’ associated
with large parties involving up to 150-200 students at so-called ‘party-houses’ in the
residential neighborhoods. The typical ‘nuisance’ behaviors include noise, public
urination, and general disorderly conduct. In addition, it is important to note that
residents and city officials are uniformly of the opinion that the problem is generally
confined to only a small percentage of the off-campus student community. City
Councilman Eugene Brown characterized this as the 90/10 problem – 90 % of the
problems caused by 10% of the students. Furthermore, the City Manager and City
Councilmen expressed the Durham community’s appreciation of the educational,
economic, and cultural contributions of Duke to the city.
To place the problem of off-campus student misconduct in context, it is worth noting that
Duke has a 3-year on-campus residency requirement for its undergraduate students, and
has well developed policies related to on-campus residence life. Students who reside on
campus must sign a Housing License prior to occupying an on-campus residence. The
Bulletin of Information and Regulation states:

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‘Any conduct that reflects a serious disregard for the rights, health, safety, and security
of other occupants of university housing will be reason for revocation of this license
and/or disciplinary action’
In contrast, the Bulletin of Information and Regulations does not explicitly discuss
behavioral expectations in relation to off-campus student life. The philosophical approach
that has been adopted is that students living off-campus have the same rights and
responsibilities, and are subject to the same law enforcement sanctions, as other adults in
the broader community. Duke’s current approach is to give students living off-campus
greater freedom in terms of behavioral choices, and intervene judicially only in cases
involving arrests/citations and repeated misconduct.
In light of the differences in off-campus and on-campus housing policies, there is a clear
perception among the residents who contacted the Committee that Duke has not taken
sufficient ownership the problem of off-campus student misconduct. Neighborhood
residents complained about the lack of adequate response from the Duke administration
to their complaints. One specific suggestion was that a hotline be established for residents
to report student misconduct. City officials also indicated that the law enforcement
actions that had been undertaken by the city had not acted as an adequate deterrent to
such misconduct. The City Manager and City Councilmen we met with were unanimous
in their view that it was time for Duke to take bold new steps to address neighborhood
concerns about student behaviors. It was suggested that Duke consider the approach
taken by Wake Forest University, where off-campus living privileges can be revoked as a
disciplinary measure.
There is some, but not uniform, recognition by the community of the steps that Duke has
already taken to address off-campus student misconduct. It is generally well known that
Duke recently purchased a number of houses off East Campus, and it is believed that this
will ameliorate the problem of ‘party houses’ to some extent. There seems little
awareness of the fact that the Office of Student Affairs has recently hired a full-time staff
person specifically devoted to off-campus student life. There is almost no recognition of
Duke’s change in judicial policy whereby all students receiving citations by the Durham
Police are subject to Duke’s formal disciplinary procedures.
It is the Committee’s view that the University has taken noteworthy steps to address
neighborhood concerns regarding off-campus student behaviors. However, the full
impacts of these measures remain to be determined. The Committee did not find a
compelling argument in support of a hotline to report student misconduct. Nevertheless,
the Committee notes that behavioral expectations related to off-campus living have not
been effectively articulated in the context of Duke’s core values embodied in the DCS.

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3. FINDINGS
3.1 Do the Community Standard and the policies which apply to student behavior
adequately convey Duke's values and behavioral expectations?
3.1.1 The Duke Community Standard (DCS), and the policies that flow from it, articulate
Duke’s values and behavioral expectations in a broad sense for academic as well as nonacademic endeavors
3.1.2 The DCS is however perceived by students and faculty alike to apply primarily to
academic endeavors
3.1.3 The DCS, and the policies that flow from it, are further interpreted as applying
primarily to interactions within the Duke University community, rather than as a set of
principles of good citizenship that are applicable in the broader communities of which
the students are a part
3.1.4 There is a lack of on-going education, modeling, and reinforcement of the broad
values and behavioral expectations articulated in the DCS and the associated judicial
policies

3.2 Are there distinctions between on campus and off campus behaviors, and is
Duke's approach to adjudication of those behaviors appropriate?
3.2.1 On-campus and off-campus living experiences are important parts of
undergraduate life and education at Duke
3.2.2 Off-campus and on-campus behaviors differ both in terms of the characteristics of
events that result in student misconduct and in terms of the community that is impacted
by the misconduct; alcohol abuse is however the major underlying factor in both offcampus and on-campus student misconduct
3.2.3 Duke’s philosophical approach to adjudication also differs between off-campus and
on-campus misconduct, with much less oversight of off-campus conduct; but attempts are
underway to minimize these differences
3.2.4 Law enforcement efforts that have been undertaken by the city have not served as
an adequate deterrent to off-campus student misconduct
3.2.5 The University has taken noteworthy steps, from both judicial and non-judicial
perspectives, to address the problem of off-campus student misconduct; the full impact of
these changes is yet to be determined

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3.2.6 In sharp contrast to campus residence life, sufficient attention has not been paid to
articulating and educating students about behavioral expectations related to off-campus
living; this discrepancy is also manifested in the differences between on-campus and offcampus housing policies

3.3 Are there limitations in the policies which prevent various behaviors from being
addressed appropriately and effectively?
3.3.1 While University judicial policies are quite comprehensive, they are not presented
or perceived as being grounded in the Duke Community Standard other than for
academic endeavors
3.3.2 Inconsistent enforcement of the University alcohol policy severely undermines its
effectiveness
3.3.3 Furthermore, the judicial policies in general are skewed towards addressing issues
involving interactions within the University community, and therefore do not
appropriately and effectively address breaches of good citizenship standards involving
the broader community
3.3.4 There is little and reluctant faculty engagement in the University judicial process,
symbolizing the pervasive disconnect between the academic and non-academic spheres of
University life

3.4 How has Duke responded when students face both criminal (or civil) charges as
well as campus judicial charges? Has this created problems and should there be
changes to our approach?
3.4.1 The current Duke judicial approach when students face both criminal (or civil)
charges as well as campus judicial charges seems reasonable

3.5 Given the requirements of FERPA, how can both the Duke and Durham
communities are better informed about disciplinary actions that are taken?
3.5.1 There is lack of adequate reporting to, and follow-up discussion with, faculty
governance bodies such as Academic Council and advisory bodies such as Athletic
Council about disciplinary policies and actions
3.5.2 There is little awareness in the broader community of judicial steps being taken by
Duke to address off-campus student misconduct
3.5.3 There is a lack of lasting, non-crisis based engagement by Duke with the larger
community concerning off-campus student behaviors

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4. RECOMMENDATIONS
The Committee makes its recommendations regarding Duke University’s judicial code,
policies, and process in the wake of an acute event of student misconduct in an offcampus setting. However, we considered the event in the context of broader educational
issues in designing our recommendations, and addressed the adequacy of the statement of
values and expectations, the consistency of application of policies in on- and off-campus
situations, limitations in the effectiveness of policies and judicial process, and the
relationship between the judicial process and that of the legal system and between the
University community and the Durham community at large. We endorse the University’s
efforts in recent years to articulate institutional values and expectations through the
design of the Duke Community Standard, to build community relationships through the
Duke-Durham Neighborhood Partnership and Office of Community Affairs, to partner
with the Durham Police by increasing the role of Duke Police in the communities that
surround campus, to gain more oversight of off-campus housing by acquiring properties
that house students, and to clarify and more effectively enforce the University alcohol
policy. We applaud the more recent Campus Culture Initiative as a means to involve
more of the Duke community in conversation and deliberation about values and
expectations. Our recommendations are aimed at systemic issues that we believe would
extend and lend context to the changes already taking place to ensure that students
graduate from Duke University fully prepared to be citizens of an increasingly global
community.
We regard the Duke Community Standard (DCS) as a cornerstone of the identity of the
University community, and as a critical, overarching statement of institutional values and
intentions and a basis for judicial policies. We believe that the central tenet of the DCS
should be good citizenship, and that the concept of community should be expanded to
include the broader communities in which students interact, reside, or represent the
University. Statements of expectations in academic and non-academic matters should
flow from this broad tenet, rather than be affirmed separately. We are concerned that the
current separate affirmation within the pledge suggests that academic matters are the
primary focus of the DCS. In keeping with this more integrated approach under the broad
concept of citizenship, we recommend that the ways in which the tenets of the DCS are
communicated also be integrated, and that a single Bulletin (perhaps a Bulletin of
Undergraduate Education, or BLUE) should incorporate both information on instruction
and information on the critical policies that flow from the DCS. The dichotomy between
academic and non-academic endeavors is also reflected in the University administration,
with distinct academic and student life administrative structures. We recommend
examination of the extent and consequences of this divide and consideration of a revised
structure and ways to better emphasize an integrated educational experience governed by
principles of good citizenship.
While changes in the statement of values and policies are important, we also believe that
simply stating or pledging a set of values is only an initial step in internalizing and living
them. We also recognize that, given the wonderful and growing diversity of the
University community, the words used to state institutional values may not have the same

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meaning for everyone. Therefore, we recommend that the DCS be a highlight of ongoing
activities after orientation, including activities that challenge the students to grapple with
the limits and tensions implied by the DCS and the differences in how others interpret the
DCS. Faculty development around explicit modeling and reinforcement of the DCS will
be important in this effort as will integration of these activities into academic and nonacademic settings.
In order for students to remain aware of the DCS in all their activities, internalization of
the standard must be deliberately and consistently promoted through the application and
enforcement of policies that derive from the DCS. Inconsistency in the application of
policies creates confusion, ambivalence, or cynicism about the validity of and
commitment to the DCS. In this regard, we are especially concerned about the
inconsistency of application of the alcohol policy. We recognize the complexity of
developing and applying a policy that allows students to have ‘formative experiences’ in
the responsible use of alcohol, encourages students to get help if they endanger
themselves through using alcohol, and is consistent with the law. We also recognize that
students who will go on to have serious problems with alcohol later in life are having
‘formative experiences’ on college campuses, and that most of the behaviors that cause
students to come to the attention of the police, Durham community, and judicial process
are alcohol-related. We therefore recommend a broad-based, Presidential-level initiative
as part of the Campus Culture Initiative to explore ways to develop policies, educational
programming, and a campus culture that consistently discourages the inappropriate use of
alcohol.
With a DCS that broadens the definition of ‘community’, we believe that it would be
appropriate to develop an explicit off-campus housing code that reflects the values stated
in the DCS, to communicate that clearly at a mandatory meeting to students who register
to live off-campus or to study away from Duke, and to implement systematic mechanisms
for tracking and reporting disciplinary actions and legal actions against Duke students
irrespective of their living circumstances. We recommend that information about such
actions be communicated regularly with as much detail as FERPA allows to faculty
governance bodies such as the Academic Council, advisory bodies such as the Athletic
Council and ACSAC, and to appropriate bodies within the local community. Accurate
information about trends in the frequency and magnitude of disciplinary issues and
efficacy of current educational and enforcement efforts is key in designing strategies to
improve and in engaging the local community in a reality-based partnership.
It is clear that the recent incident of off-campus misconduct by students, irrespective of
the outcome of the sexual misconduct allegations, has damaged a still-fragile relationship
between the University community and its neighbors, and has overshadowed the less
often reported but no less dramatic positive activities of Duke students in Durham. While
we recognize efforts by the Office of Judicial Affairs to be responsive to community
concerns, we believe a more proactive initiative is needed to display the University’s
commitment to engage the community in helping to educate students about citizenship. In
order to forge a more resilient relationship between the University and local community,
we recommend the development of activities intended to introduce Duke students to their

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neighbors, their neighbors’ concerns, and the expectations of the community regarding
citizenship. The disciplinary process for students engaging in misconduct in the
community could include options for direct contact and negotiation with neighbors or
community service. Regular meetings of stakeholders in this relationship could be
convened to discuss problems and design proactive approaches to helping students living
off-campus continue to internalize and exemplify the values of the DCS in the greater
community.
In summary, we believe that the University needs to refine the Duke Community
Standard and pledge to reflect the core principles of good citizenship as guiding activities
in all settings, and then follow that refinement with ongoing, intentional activities to
promote internalization of the DCS and policies that are consistent with the DCS and
consistently applied. The dichotomy between academic and non-academic activities that
is currently reflected in the structure of the DCS, bulletins, and the administrative
structure should be diminished through integration of those structures in order to reflect
that a Duke education encompasses academic and non-academic endeavors that prepare
students to be exemplary citizens of the global community. Education in citizenship
should continue as students live off-campus or study elsewhere, and the University needs
to proactively engage the community in partnering with us to provide and reinforce this
education.
The specific recommendations of the Committee are:
• Modify the DCS so that the central tenet is good citizenship in relation to the
University community as well as in relation to the broader communities of which the
students are a part
• Develop a comprehensive set of programs to educate students about, explicitly model,
repeatedly reinforce, and promote internalization of the institutional values articulated
in the DCS
• Create a Bulletin of Undergraduate Education (BLUE), that would be a synthesis of
the current Bulletin of Undergraduate Instruction and essential topics from the Bulletin
of Information and Regulations, to give prominence to the integral role of the DCS in
fulfilling the mission of Duke
• Develop and implement a Presidential-level initiative as part of the broader Campus
Culture Initiative with the goal of tackling the major underlying problem of alcohol
abuse
• Develop an off-campus housing code of conduct and judicial policies pertaining to offcampus living that reflect the values of good citizenship articulated in the DCS
• Minimize the disconnect between the academic and non-academic spheres of
University life to emphasize that both spheres are integral parts of the general
educational experience at Duke; as a first step, rethink the administrative structure to

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integrate student academic and non-academic life to better serve the broad educational
mission of the University
• Codify and implement systematic mechanisms for reporting on disciplinary actions,
including Duke-Durham actions, to faculty governance bodies such as Academic
Council and advisory bodies such as Athletic Council
• Explore creative alternatives to inculcate values of good citizenship in the context of
off-campus student life, recognizing that learning to live productively in the global
community outside of University walls is an integral part of a Duke education
• Convene a group of major stakeholders (university officials, off-campus student
representatives, neighborhood residents, Duke and Durham police, and city officials)
on a regular basis to discuss and develop pro-active approaches to issues related to
off-campus student life, with the goal of partnering in educating students in how to live
within the larger community

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