A judge in North Carolina ruled that Duke University could not expel a male student accused of sexual misconduct because his due process rights were violated.
Superior Court Judge W. Osmond Smith III issued a preliminary injunction on May 29, stopping Duke from expelling Lewis M. McLeod, a senior at the university who was barred from graduating in early May.
Smith ruled that Duke “breached, violated, or otherwise deprived [McLeod] of material rights related to the misconduct allegations against him and the resulting disciplinary process addressing such allegations.”
McLeod had been accused last fall of sexually assaulting a female student, though he said the sex was consensual. The female student accused McLeod of rape following an alcohol-fueled night of sex. When the police declined to file a report after investigating her claim, she went to Duke’s student conduct office.
Duke's controversial student misconduct policy defines sexual misconduct as “any physical act of a sexual nature perpetrated against an individual without consent or when an individual is unable to freely give consent.” The policy states that an individual “incapacitated due to alcohol” cannot freely consent.
Conversely, the policy states that “being intoxicated does not diminish one’s responsibility to obtain consent.”
This means that being intoxicated excuses someone from giving consent, but not from obtaining consent.
A Duke disciplinary panel ruled in March that the female student was too intoxicated to give consent.
Following his expulsion, McLeod filed a lawsuit accusing Duke of violating his due process rights, prohibiting testimony from key witnesses and relying on second-hand testimony in order to find him guilty of sexual misconduct.
The expulsion would keep McLeod, an Australian native in the U.S. on a student visa, from obtaining the degree he needs to be hired by a Wall Street investment firm that offered him a job.
Judge Smith ruled that McLeod “is likely to suffer irreparable harm if he is expelled from Duke University pending a final determination on the merits in this action.”
Smith found, however, that it was “unlikely” that Duke would “suffer any damage or loss as a result of this preliminary injunction.”