McClean v. Duke Univ.
376 F. Supp. 3d 585
M.D.N.C.2019Background
- McClean, a dual‑degree Duke student, alleges she was raped and sexually assaulted by Steven Bishop and thereafter harassed and retaliated against by Bishop and Sheila Broderick (a Duke employee and Bishop’s girlfriend).
- McClean complained to Duke and sought counseling; she alleges Broderick failed to provide services, disclosed confidential information, made false reports, and participated in a campaign to damage her reputation.
- Bishop is not alleged to have been a Duke student or employee and the Complaint does not specify where the rape occurred.
- McClean asserts federal Title IX and multiple North Carolina state claims (conspiracy to interfere with civil rights §99D‑1, UDTP §75‑1, breach of contract and implied covenant, IIED, NIED, negligence).
- Duke, Broderick, and Bishop moved to dismiss under Rule 12(b)(6); the court grants Duke’s motion in full, grants in part and denies in part Broderick’s and Bishop’s motions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Title IX liability for Duke based on Bishop’s alleged rape/harassment | Duke had notice/should be liable for deliberate indifference to harassment of a student | Bishop was not affiliated with Duke; Title IX requires institutional control over harasser | Dismissed: Duke not liable under Title IX for Bishop’s conduct (no control over harasser) |
| Title IX liability for Duke based on Broderick’s conduct | Broderick, as a Duke employee, discriminated/was deliberately indifferent | Broderick’s actions motivated by personal animus/retaliation, not sex discrimination | Dismissed: allegations fail to plausibly plead sex‑based discrimination; deliberate indifference need not be reached |
| §99D‑1 conspiracy to interfere with civil rights (motivated by gender; Title IX "impacts on" Equal Protection) | §99D‑1 claim premised on interference with Title IX/equal protection | Title IX is a Spending Clause statute and does not enforce or interpret Equal Protection; §99D‑1 requires closer nexus | Dismissed: McClean failed to show Title IX enforces/interprets Equal Protection or that conspiracy was motivated by gender |
| Breach of contract / implied covenant (Duke promised counseling/services) | Duke contractually promised gender‑violence counseling and breached that promise | No specific contractual term identified; handbooks/policies are unilateral and not part of contract | Dismissed: complaint fails to allege an identifiable, enforceable contractual promise |
| UDTP (§75‑1) against Duke and Broderick (advertised services but denied) | Duke advertised services to students and then deceived/denied services; Broderick participated | University‑student relationship is educational (not consumer commerce); professional services exclusion; claim repackages educational malpractice | Dismissed as to Broderick; dismissed as to Duke on merits (no commerce) and also as educational‑malpractice (court declines to reach as pleaded) |
| Intentional infliction of emotional distress (IIED) vs. others | Defendants’ campaign, disclosure of records, false reports caused severe distress | Conduct may be serious but not all rises to extreme/outrageous; employer liability requires ratification/knowledge | IIED claim: DENIED as to Broderick and Bishop (plausible); GRANTED dismissal as to Duke (no ratification/knowledge of material facts) |
| Negligent infliction of emotional distress / Negligence | Duke and individuals negligently failed to protect or respond | Allegations are of intentional acts; no special relationship between Duke and student to create duty | Dismissed for all defendants: NIED and negligence claims fail (intentional acts or no duty/special relationship) |
Key Cases Cited
- Erickson v. Pardus, 551 U.S. 89 (2007) (pleading standard: accept factual allegations as true at motion to dismiss)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (plausibility standard for pleadings)
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (conclusory allegations insufficient)
- Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629 (1999) (Title IX deliberate‑indifference framework; institution must control harasser)
- Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (Title IX requires actual notice to an official with authority and deliberate indifference)
- Jackson v. Birmingham Bd. of Educ., 544 U.S. 167 (2005) (Title IX retaliation recognized)
- Jennings v. Univ. of N.C., 482 F.3d 686 (4th Cir.) (Title IX elements and institutional liability)
- Mercer v. Duke Univ., 190 F.3d 643 (4th Cir.) (Title IX context involving university conduct)