4th Cir Short Note: Bend Over And Take It Like A Man, Dorrance; And Shame On UNC

JENNINGS v. UNIVERSITY OF NORTH CAROLINA AT CHAPEL HILL, USCA-4 No. 04-2447, http://pacer.ca4.uscourts.gov/dailyopinions/opinion.pdf/042447A.P.pdf , on appeal from USDC-NCMD, before USCA-4 en banc, filed 09 Apr 2007.

Coach Anson Dorrance of the UNC-CH women's soccer team is by far the winningest and most successful coach in women's soccer nationwide. According to Plaintiff, a soccer player for two years, Dorrance was also an outrageous pervert, obsessed with his players' sex lives and constantly commenting on their bodies. In front of some or all of the team, he asked players with whom they were fornicating, talked of large "racks" and spandex, described his wish for a threesome with two Asian players, wondered if a particularly promiscuous player would do the whole lacrosse team, and would have died to be a fly on the wall when a player who was an evangelical Christian committed to chastity lost her virginity. On a road trip, Dorrance got Plaintiff to be alone with him in a dark hotel room with an unmade bed, told her she was on the verge of being cut from the team for low grades, and asked "who are you [do]ing?" Dorrance seemed to focus his vulgar inquiries on each player in turn, and when he chose Plaintiff for such singling out, asked her in front of others whether she had a shagfest with her boyfriend the previous week; Plaintiff, humiliated, refused to respond. Dorrance also touched players inappropriately or pretended to, especially when they were lightly clad. Plaintiff approached Susan Ehringhaus, UNC counsel and assistant to the Chancellor, and detailed Dorrance's behavior. Ehringhaus pooh-poohed her concerns, said Dorrance was a great guy, and told Plaintiff to work it out. Dorrance eventually cut Plaintiff from the team for low grades and lack of fitness at the end of her sophomore year.

Plaintiff sued UNC, Dorrance, Ehringhaus, and others for Title IX (20 U.S.C. § 1681(a)) sex discrimination and per 42 U.S.C. § 1983 for violating her constitutional or federal statutory rights. The trial court granted Defendants' motion for summary judgment and dismissed the case, and a divided panel of the Fourth Circuit affirmed, but the Fourth Circuit granted review en banc.

To defeat summary judgment on a Title IX claim, Plaintiff had to forecast evidence sufficient to prove four elements to a reasonable jury. (1) UNC was an educational institution receiving federal funds, which it of course was. (2) She was subject to harassment based on her sex. UNC laughed off Dorrance's behavior as jokes and horseplay, but the Fourth Circuit ruled that his conduct went far beyond simple teasing and qualified as sexual harassment. (3) The harassment created a hostile or abusive environment. While Title IX is not a general civility code, and substantial allowance is due for the locker-room nature of athletics, a jury could find on these facts that Dorrance's persistent sexual harassment was sufficiently degrading to young women to create a hostile or abusive environment. The harassment deprived her of educational opportunities or benefits. Even after a discount for her disappointment at being cut, Plaintiff certainly suffered deprivation from the sexual harassment she had to endure in order to play soccer for as long as she did. (4) There was a basis to impute liability to the institution. Plaintiff went directly and personally to Ehringhaus and detailed Dorrance's outrageous behavior at length, only to have Ehringhaus take Dorrance's side immediately and not communicate Plaintiff's concerns to anyone else, much less do anything about them. UNC had actual notice and could be liable for its nonfeasance.

As to Section 1983 liability, Plaintiff showed that Dorrance was a state actor and used his position as coach to sexually harass Plaintiff, and this harassment was sufficiently severe or pervasive to interfere with her educational activities. Defendants did not press their qualified immunity defense below, so the Fourth Circuit would not consider it anew on appeal. Plaintiff's other claims were correctly dismissed, but Title IX and Section 1983 survived. GRANT OF SUMMARY JUDGMENT VACATED and cause remanded for further consistent proceedings.

EDITORIAL: Way to go, Heels! They haven't lost yet--all the Fourth Circuit really said is that now it can go to trial--but it's looking pretty bad for the home team. Chapel Hill is supposed to be the Land that Time Forgot as of 1969, a paradise of perfect Diversity, where all people and beliefs are celebrated. (except, of course, for white heterosexual male conservative Christians not of Hispanic origin). So how did the Thought Police allow this to happen in the Home of World Socialism? Tellingly, one of the harassment victims was a Christian who got humiliated because she wanted to wait for marriage. This is a totally unacceptable attitude in UNC, so I guess they didn't care what Dorrance did to that student. Could it also be that the soccer team won a lot of games and 19 national championships, and that's all that matters to UNC?

Mostly, I would guess that this mess was due to UNC's being so totally obsessed with annihilating the imagined Religious Right conspiracy, and after 9/11 making sure that all students agree that Islam is the greatest and most wonderful religion on earth, that they couldn't be bothered with bad things that were actually happening to their students. You see, Dorrance wasn't a Bible-thumping Baptist, so he must have been all right. Susan Ehringhaus said it, and we must all believe it. Except now, of course, she will get to explain to a jury her unbelievable treachery against a female student who needed a little help. As will UNC--but hopefully not with our tax dollars. Take it out of the athletic donation box.

Incredibly, Dorrance is still there. Winning is everything, justice and right are nothing, at UNC.

Supreme Court Short Note: Convert To Global Warming Religion Or Die

A gang of blue states and enviro-whacko groups have decided that American automobile emissions, even though they admit that these emissions account for only 4 percent of alleged greenhouse gases, simply MUST be regulated by EPA. As liberals always do when they lose in the political and scientific process, they turn to the courts for some bench legislation, and this time they have hit the big one. SCOTUS has officially established global warming voodoo as the state religion.

In a long opinion that reads like a transcript of a sermon by Grand High Llama Algore, the Supremes cherry-pick the facts they like, mash them up with enviro-propaganda and laughable Chicken Littleisms ("These rising seas have already begun to swallow Massachusetts' coastal land."), and apply this muddle to the ever-elastic Clean Air Act. Then they claim that all they are ordering the Environmental Protection Agency to do is "decide whether greenhouse gases cause or contribute to environmental change" and they don't care whether or not "EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding"--but their wholesale endorsement of absolutely everything the enviro-whackos say or write leaves no doubt that if EPA does not prostrate itself before the new state religion, they will be right back in front of the Nine Robed in Black, who will then order them to Believe, and to Do Something. Justice Stevens wrote this travesty, and in his sway are Kennedy, Souter, Ginsburg, and Breyer. You could NOT have knocked me over with a feather.

It's left to the Dread Chief Justice Roberts ("I Am Here For Your Souuuuul"), Scalia, Thomas, and Alito to point out that EPA already HAS looked at this stuff many times before and respectfully declined to substitute religion for science, seeing as how the earth has been blowing hot and cold by for squillions of years without human intervention, and "this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency." What a concept. Scalia, in the second dissent, even said "flatulence" (if only in a footnote), to the delight of Real Men everywhere. But seriously folks, Roberts observes that now the reach of redressability extends to this case, where 80 percent of greenhouse gases come from OUTSIDE the United States and only 4 percent of GHGs come from American cars, to confer Article III standing on Taxachusetts because the ocean is now swallowing Martha's Vineyard or something. (Hey, somebody tell Ted Kennedy it'll also submerge those offshore windmills!) "The Court ignores the complexities of global warming, ... using the dire nature of global warming itself as a bootstrap for finding causation and redressability." That's it in a nutshell.

Anybody who wants to read this, please do so at http://www.supremecourtus.gov/opinions/06pdf/05-1120.pdf . It's 66 pages, so brew a pot of fair trade coffee and pour in some cream from non-flatulent cows and sugar harvested by union labor. Also, bring your brain.

Blasts from the Past: The Fourth Amendment in the Fourth Circuit, 2006

Hey all, it's time for an ambitious project. In the next few weeks, maybe even days, I'll be summarizing every published 2006 case of the U.S. Court of Appeals for the Fourth Circuit that discusses a Fourth Amendment issue. Just what you were waiting for, I'm sure. So don't be alarmed, or think you're in a time warp, when you see cases appear out of sequence.

Also, I'll be working up a hardcopy version of "4th Am/4th Cir" to send, funds permitting, to every police chief and sheriff in North Carolina. This edition might contain some trade secrets that I don't want to post on a blog that is otherwise meant to suck in as many readers as possible.

We Could Use Some NEW Movies

Saw Eragon last night with about 20 of my closest friends. I would summarize it thus: If you've seen Star Wars 100 times and Empire Strikes Back 50 times, you've seen Eragon 300 times. If you're under 10 years old, you will eat it up because you don't know any better and because it has swordfights and cool dragons, well ONE dragon anyway. I thought the whole thing was a flagrant waste of Jeremy Irons, who plays Obi-wan, I mean Brom the washed-up dragonrider. The poor guy stands fast while the rest of the film collapses around him under the dead weight of a million cliches. I do look forward to the DVD (not that I'm going to buy it; I'll just watch it with someone who did) so I can write a list of everything shamelessly ripped off from a long time ago in a galaxy far, far away.

Some have, if only to complain about the resemblance to still other films, compared Eragon to Lord of the Rings. Don't you dare. The only thing the two worlds have in common is that they're sort of medieval. There is no overriding Quest for a single object, other than the actors' frantic off-camera search for their agents to find other gigs which will render them unavailable for the sequel(s). There are only occasional mentions of elves and dwarves, but we never see any--I guess a plot summary got leaked to them and they fled in terror. John Malkovich is unrecognizable as the Eeeevill Lord (probably because he wanted to be unrecognizable). And when Durza sneeringly wastes one of his flunkies and tells the next one in line he's just been promoted, I had to add, "... Admiral Piett."

I understand Eragon the book is quite popular and probably you should read the book and spend your movie time on something else.

Advanced Concept: Wait, and Think, Before Judging

I checked LEXIS today and found probably eight new Fourth Amendment cases that you folks might like to know about. That is a bit much to summarize in one day so why not start with something totally different--the deal with former Deputy Long, who fired the bullet(s) that killed handyman/thug Peyton Strickland.

Note how I said in the previous post about this incident that waiting for some facts was prudent. Little did I know HOW prudent. We all know that if a grand jury refuses to follow the prosecutor's orders and returns no true bill, there is some very good reason for it. And although deputies in North Carolina serve at the sheriff's pleasure, when a deputy gets fired, there is also usually some very good reason. I will now hazard a guess that regardless of how culpable or not the former deputy was, what's really driving the continuing investigation is that New Hanover County is desperate for somebody to throw under the bus. It's way better for the shooting to look like the malfeasance of a rogue deputy than to look like there may have been a problem with selection, training, equipment, policy, tactics, or leadership.

In no way am I presuming to evaluate anybody or any department. I'm not SWAT and haven't ever served a high-risk warrant and I just don't have any business after-actioning this operation one way or the other. All I am saying is that I have no reason to think that the decision to ask for Mr. Long's badge was wrong, and neither do I have any reason to think the non-indictment was wrong. If over a week of investigation couldn't turn up even probable cause for murder two, then leave the guy alone. The civil suit will be torture enough.

"Hands-On Life"? Yah, that's what the people he beat up and robbed say

Our beloved Noise and Disturber is at it again.

http://www.newsobserver.com/1419/story/519960.html

To read the articles about him, you'd think Peyton Strickland was the greatest mechanic, welder, restorer, shipwright, and humanitarian who ever lived. He moved to Wilmington with "a cast of buddies" becaused he loved to build things and "Cape Fear Community College's welding program was top-notch." Yeah, well Bladen Community College's welding program is even better, and we win more competitions. It seems that Peyton was "a peacemaker" who "built a chopper motorcycle from scratch after watching people do it on television" and had a delightful childhood and would do anything for anybody and was "always surrounded by friends" and "his care for people didn't fade as he grew older" and helped out pregnant neighbors and some homeless guy in Paris, and of course "learned by doing, always trying to figure out how things worked."

Wow, if we had TWO of him, the world would be perfect.

Now we don't have even one of him, the N&O wails, because a New Hanover County deputy shot the poor unarmed boy and his German Shepherd when serving a search warrant for only a couple of stolen PlayStation 3s. The poor boy died for absolutely no reason. Donations are being accepted so his face can be added to Mount Rushmore.

Hey, fool, Peyton Strickland was A HOOD, A THUG, AND A CRIMINAL who needed to sit in prison at least until he grew out of it. How he got that PS3 was find two other college kids who waited on line for over a day and paid money for it, and then he beat the tar out of the rightful owner and took what didn't belong to him. This is BAD. And he was up on other assault charges too.

Why is the liberal media in sackcloth and ashes? They love to hose the police at every opportunity, but I have never seen the likes of it. I guess the major reason is that Peyton Strickland is WHITE. If this had happened to a black man similarly situated, they would have run an article or two, and an editorial about institutional police racism, and that 's it.

Unfortunately, the decedent's dad is a big-time personal injury lawyer, so there will be a huge settlement whether or not the police were doing anything wrong. Notice how I haven't passed judgment one way or the other about the officers involved, because I DON'T KNOW ENOUGH TO DO THAT. Liberal media, that is what you need to admit.

Hands-on life? Thug life.

Just DISAGREE With A Liberal And You're DIRTY

In today's Raleigh Noise and Disturber, sometimes known as The News and Observer, we learn that the John William Pope Foundation has been talking with the dean of CHASS (College of Humanities and Social Sciences) at North Carolina State University (3-9) about funding maybe some study abroad scholarships and French and German programs. Already the Pope Foundation has given $511,000 to NCSU for a lecture series that brings very distinguished speakers, including a Nobel-winning economist, to campus.

Leftist faculty have their panties in a knot over this. "I think it's a very dangerous step to take to even accept a penny of this money," said associate professor of history David Ambaras. Better yet, philosophy professor David Auerbach pronounced: "This is dirty money."

Why? Does the Pope Foundation sell drugs? extort money from consumers who don't owe it? run numbers rackets? fence stolen property? collaborate with Al-Quaeda?

Heck no! The terrible problem with the Pope Foundation is: it has a CONSERVATIVE OPINION.

And it thinks that private funding for higher education is preferable to public funding. So to put its money where its position papers are, the Pope Foundation contributes money to universities. But worst of all, the Pope Foundation thinks that maybe education should consist of less political correctness, and more ideas of Western Civilization that made us free and keep us free.

By the beard of Lenin, we can't have any of THAT nonsense around here, says the CHASS faculty. You expect this idiocy from Chapel Hill--and in fact, that's exactly what UNC-CH faculty said too, resulting in $2 million going not to education but to the FOOTBALL TEAM--but not from NC State.

Oh, wait--then again, I might. You see, I hold a BS in Philosophy from State, and during my undergrad days from 1984 to 1989 I well remember the feminist multicultural animal-rights atmosphere in which all points of view enjoyed tolerance and acceptance, except Republicans, low taxes, gun rights, military preparedness, and of course conservative Christianity. I well remember Dr. Auerbach, who taught me symbolic logic, into which politics can scarcely enter. However, logic should inform one's politics. Dr. Auerbach needs to practice what he teaches (logic) just as the Pope Foundation does (private funding).

Commendably, not all State faculty have been drinking this particular flavor of Kool-Aid. Ruth Gross, department head of foreign languages and literature, thinks that "some fruitful way" can be found to use the money for students' benefit, and has urged the faculty to be open-minded. Sadly, open-mindedness is not repeat NOT allowed in the education establishment. Raises, promotion, tenure, prestige, and social acceptance in today's academy depend only and entirely on unquestioning agreement with the ironclad socialist party line. College professors and convicted felons have something interesting in common: over 90% of them vote Democrat.

There's no use in imploring closed-minded and intolerant faculty to allow more than one opinion on campus, so I won't waste electrons on that. I will, instead, ask for some way to get diversity of thought and opinion into college faculty, maybe by affirmative action.

Hello world

At last, here's the Fourth Amendment and Fair Debt Collection Practices Act blog that after a few days you'll wonder how you ever got along without. Published semi-occasionally whenever I don't have anything better to do. Check out my homepage at www.fairdebtlawyer.com and yes I know the design sucks so I'll change it in the very near future.

The Fourth Amendment is about search and seizure, and it is the most important part of the Constitution to law enforcement officers, because they are the ones who search and seize rather often. It reads in full: "The right of the people to be secure in their persons, houses, papers, and effects, against unresonable searches and seizures, shall not be violated, and no Warrants whall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The kernel of Fourth Amendment protection is reasonableness. Searches and seizures that are so unreasonable as to violate the Fourth Amendment can get the officer in all kinds of trouble. Your department may discipline or fire you, the judge may throw out your evidence and let a dangerous criminal walk, you may get sued and have to pay a lot of money, and in extreme cases you may go to prison for years or for life. So PAY ATTENTION young Jedi, and I'll try to help you stay away from the Dark Side.

The Fair Debt Collection Practices Act takes up a few pages, which you can find starting at 15 U.S.C. § 1692 et seq. (translation, Title 15 of the United States Code, Section 1692 and following sections). FDCPA sets rules for third-party debt collectors (usually collection agencies or collection law firms, CA for short) and provides for damages and attorney fees for collectors who get caught violating the rules. Many states, including my home drome of North Carolina, have additional fair debt collection practices laws and licensing of CAs. There are 6,000 collection agencies in the United States, many of whom are A-OK, many of whom are downright shady, and some of whom are little more than organized crime fronts. I've seen all kinds of CA shenanigans, from technical glitches in dunning letters to flat-out wire fraud and extortion. Some bad things are obviously illegal, but some bad things are only bad if you read FDCPA very carefully. The main federal watchdog agency for debt collection is the Federal Trade Commission, but FTC has A LOT to do and they can only sue two or three of the very worst FDCPA offenders every year. For the most part, it's us private consumer lawyers that make FDCPA happen. This area of law has long been obscure, but more and more lawyers are getting the word that debt collection is THE most complained-about industry that FTC keeps track of, and complaints have about doubled in just three years. I'll try to keep track of some of the more interesting FDCPA developments here.

Y'all chime in with comments and questions as often as you like. I tend to forget that not everybody has spent so many years looking at court opinions that now they read like novels to me. If the learner hasn't learned, the teacher hasn't taught.