"We Are Not Radicals"

 .  . . writes proud, defiant member of the Group of 88.

In his co-authored op-ed, and after implying that his conduct might somehow be comparable to the brave civil rights activists who participated in the Greensboro sit-ins, Group leader William Chafe runs through a litany of policies that prompted him to violate the law. A couple of the issues that Chafe raises--dealing with efforts of the North Carolina state legislature to restrict the right of predominantly Democratic constituencies (students, minorities) to vote--might rise to the level of potential subjects for civil disobedience, dealing as they do with fundamental rights.

But Chafe comes across as the work of a figure more interested in play-acting as a 1960s radical than in actually influencing policy. He suggests that he was protesting not merely these voting rights issues, but North Carolina's political leadership's decision to reduce taxes on the wealthy. He also decided to break the law because North Carolina leaders made a policy choice that Associate Justice Elena Kagan deemed constitutional and declining federal funds to expand Medicaid. And he believed that he could place himself above the law because he knows better than North Carolina's elected government on whether to make a policy choice that former associate justice David Souter deemed constitutional and imposing some restrictions on abortion. A . . . distinguished . . . professor deems these policy choices to be grounds for civil disobedience?

The Chafe argument, summarized: unless a government elected by a majority of the voters enacts the policy agenda of the minority party (with which he happens to agree), he will engage in civil disobedience.

We live in a representative democracy. The state's Republican governor and GOP-led legislature ran on a platform of lowering taxes on the wealthy. If Chafe considers this policy so unappealing, perhaps he should devote himself to using his way with words to persuade a majority of his state's fellow citizens, rather than resort to breaking the law.

And imagine how Prof. Chafe would have reacted if Tea Party types had engaged in civil disobedience to demand higher taxes on the poor, or had screamed at women trying to access an abortion clinic. Somehow I doubt that he would have compared the Tea Partiers to a modern-day version of the Greensboro Four.

An aside: in what way does Chafe's past status as a president of the Organization of American Historians argue against deeming him a "radical"?

More on Penn State & Accountability

I’ve written extensively on the contrasting approaches to accountability between Penn State and Duke. The Penn State trustees, although they remained asleep at the switch for years, at the very least acted aggressively once the Sandusky allegations came to light. In contrast to Duke, which has done everything possible for several years to prevent a full-scale investigation of why the administration and so many “activist” faculty members so badly botched the lacrosse case, Penn State’s trustees gave an outside investigator full access to all university documents, including e-mails, involving the Sandusky cover-up. The resulting Freeh Report, of course, exposed some troubling things about Penn State’s campus culture and past decisionmaking process—but the willingness to commission the report suggested an acceptance of accountability that’s been totally lacking at Duke.

The Freeh Report, however, has produced a ferocious backlash on campus and, to a lesser extent, elsewhere in Pennsylvania. A handful of elected PSU trustees, led by Anthony Lubrano, have challenged the report’s validity, raising dark hints of denial of due process. PSU faculty leaders embarrassed themselves by challenging Freeh’s conclusions while failing to produce even one piece of evidence to corroborate their assertions. The state’s governor, Tom Corbett, initially accepted the Freeh Report, but then backtracked and sued the NCAA. (That Corbett, one of the nation’s most unpopular governors, faces re-election next year appears to have figured into his thinking.) And various state legislators criticized the NCAA for not spending the entire fine to which Penn State’s leadership agreed on matters in Pennsylvania.

The backlash raises some serious questions as to whether Penn State leaders, and the Pennsylvania politicians that they serve, are abandoning their initial, admirable acceptance of accountability for the Sandusky cover-up. This question has resurfaced in a different form in a bill currently before the Pennsylvania state legislature.

The bill seeks to extend the statute of limitations for victims of the Sandusky scandal, so as to allow them to file civil claims against Penn State and Sandusky’s charity organizations. In many states, such measures have generated opposition from the Catholic Church, since they threatened to expand the Church’s legal liability from the sexual abuse scandal. But in past cases, invariably a combination of public outrage, an understanding that many victims of child sexual abuse take years or even decades before coming forward, and a simple desire to do the right thing have led legislatures to extend the time period for filing suits.

Extending the statute of limitations beyond 30-year-olds, of course, poses potentially problematic questions for Penn State. In general, the narrative around the Sandusky scandal has focused on events of 1998 (when a local prosecutor elected not to file charges against Sandusky, after an investigation of which the PSU leadership was aware) and 2001 (when then-graduate assistant saw Sandusky sexually assaulting a boy in the football building’s showers, told Joe Paterno and then two senior administrators, only to see the PSU leadership decline to report the matter to the police).

Given its charge, the Freeh Report focused exclusively on these events and their aftermath. It thus never explored exactly when Sandusky started his pattern of abuse. If, as seems entirely plausible, he was engaging in abuse throughout his time at Penn State, that would mean at least some of his victims might need the law to pass in order to file a claim.

What, then, will Pennsylvania legislators do? Both state politicians and the PSU leadership have repeatedly expressed a willingness to treat all of Sandusky’s victims fairly—which would suggest that the bill should sail through to passage. Yet conceding that Sandusky might well have engaged in abuse throughout his Penn State tenure would undermine all but the most fanatic apologists for the Paterno football program; the (preposterous) claim that Paterno was too old or out-of-touch to effectively move against Sandusky would be entirely untenable as an explanation for any inaction by Paterno in the 1980s.

Far better, from the perspective of any ultra-Penn State loyalists in the legislature, to not look too far back into the past. But if they abandon accountability by declining to support the current legislation, they’ll effectively contribute, in their own way, to the cover-up that brought down the former PSU administration.

The Orin & Selena Show

In the early stages of the lacrosse case, Orin Starn distinguished himself as among the Duke faculty members most eager to exploit his own students’ distress to advance his campus agenda. The Sociology professor never seemed to miss a chance to condemn the lacrosse players—and Coach K, after he belatedly spoke up against the faculty mob—as part of his crusade to transform Duke into a version of Haverford or Swarthmore, schools with insignificant athletics programs. (In late summer 2006, after months of revelations of Mike Nifong’s procedural improprieties, Starn even proclaimed that the case nonetheless needed to go to trial, since “most Durhamites want to hear all the evidence before passing judgment,” as if basic principles of due process needed to give way to the desires of “most Durhamites.”)

This semester, Starn is teaching an on-line open class entitled “Sports and Society,” which a Duke press release breathlessly describes as an exploration of the “intersection of sports and American culture.” Among the invited guest lecturers . . . “sports studies experts”(!!) like Group of 88'er Grant Farred (who perhaps can expand on his thesis that former Houston Rockets center Yao Ming represents “the most profound threat to American empire”) and former New York Times columnist Selena Roberts.

Given his own repeated assaults on the lacrosse players’character, it comes as little surprise that Starn would deem credible a “journalist” who engaged in a character smear against his own institution's students only days after the case first went public, and then dissembled about what she wrote once the case collapsed. But perhaps Roberts’ more recent work has restored her standing?

As it turns out, Roberts’ journalistic credibility has been much in the news lately. After her departure from Sports Illustrated, Roberts moved on to a website called “Roopstigo,” a “revolutionary digital network that presents original sports content on demand for fans who demand more.” The “founder and CEO” of this entity is Selena Roberts.

The site was the talk of the sports world in early April, when Roberts published a 4000-plus word exposé of the Auburn football program. The article awkwardly combined an inquiry into criminal charges against four former Auburn football players with loosely-sourced allegations of rules violations by the Auburn coaching and administrative staff. Almost immediately after publication, the latter part of the article collapsed, as “source” after “source” claimed that Roberts had misquoted him, or worse.

The more interesting aspect of the article, however, came in its first area: Roberts suggested that one of the accused football players, Mike McNeil, was likely innocent of the charges against him, and had been the victim of some type of misconduct by authorities. The article never precisely explained who violated McNeil’s rights or why they had done so; indeed, the article never even fully summarized the full criminal case against him. Roberts did note that one of his co-defendants had been convicted to 15 years in prison, but her piece veered back and forth between a suggestion that a crime might have occurred but McNeil was innocent to implying that perhaps the whole thing was just a misunderstanding or even a frame orchestrated by Auburn to get rid of football players—with dreadlocks—that the then-coach didn’t like.

What made this line of argument so intriguing is that, of course, during the lacrosse case, this same Selena Roberts had demonstrated not a whit of interest in due process, or the presumption of innocence, or the need for prosecutors or police to behave in an ethical manner. Indeed, she had proven utterly indifferent to each of these themes, and her Auburn article provided no explanation for her newfound passion. Surely the differences in race and class between the respective defendants could not account for her abrupt turnabout.

In the event, Roberts’ article hinged on the defense of McNeil, who was also a principal source for her allegations of rules violations by the Auburn football team. The man with the dreadlocks, she suggested, was persecuted by the former Auburn coaching staff, and she came across as utterly convinced of his innocence. If McNeil was lying about his innocence on the robbery charges, then he had no credibility as a “snitch” (to use one of Roberts’ favorite words) against Auburn.

Imagine, then, Roberts’ humiliation when, only five days after her exposé appeared, the Birmingham News reported the following:

“Judge Chris Hughes sentenced McNeil to a 15-year split sentence that includes 3 years imprisonment and 3 years of probation after the former football player withdrew his not-guilty plea on Monday . . . McNeil, who wore a suit and had cut off his dreadlocks since his last court appearance on Friday, was taken into custody by Lee County sheriff's deputies at the end of the hearing, as his family watched from the gallery.”

The figure Roberts had portrayed as so sure of his innocence that he would go to trial, only five days later admitted guilt. A cynical person might suggest that McNeil’s legal team used Roberts as a way to increase pressure on prosecutors for a better plea deal.

Perhaps Roberts can bring her unique insights on due process in high-profile cases involving college athletes to Professor Starn’s class.

Starn’s offering is free—proving that you get what you paid for.

Hat tip--J.

News from Maine

After six subpoenas, two court hearings in Maine with several attorneys flown up from North Carolina, and multiple letters to my attorney, Duke's efforts to weaken the First Amendment rights of all news-gatherers in Maine ended below, with Judge Rich's dubious order officially vacated:

Neff a Pulitzer Finalist

For those who hadn't seen the news, Joe Neff was part of a team of reporters at the N&O and Charlotte Observer who were finalists for the Pulitzer for local reporting, for "for their tenacious joint project investigating how the state’s major nonprofit hospitals generate large profits and contribute to the high cost of health care." (The award ultimately went to reporters at the Minneapolis Star-Tribune.)

The honor serves as a reminder that Neff's sensational work in the lacrosse case was hardly atypical of his overall journalism.

Curious Commentary

[Update: I have retightened comment moderation in light of the off-topic comments.]

A few instances of . . . curious . . . commentary over the last couple of weeks: two items prompted by the settlement of the Carrington suit; the third by continued debate over the OCR mandate for colleges to lower due-process protections for students accused of sexual assault on campus.

The Chronicle featured what could charitably be described as a limited take on the settlement of the suit. Keep in mind: though the paper’s title remains the same, no undergraduates who currently write for the Chronicle were students at Duke during any element of the lacrosse affair, except for the now-all-but-routine promotions of various Group of 88 members to key administrative positions. During the lacrosse case itself, the Chronicle's coverage was unmatched in its excellence among the traditional media.

“As we reflect on this incident in which exotic dancer Crystal Mangum falsely accused three Duke lacrosse players of rape at a 2006 team party,” an unsigned editorial noted, “its place in the broader history of Duke becomes clearer. We can begin to see how it has molded and continues to mold our campus culture to this day. For many people both within and outside of the Duke community, this case continues to define Duke’s identity.” All quite true.

In what ways did the case “define Duke’s identity”? Dozens of “activist” faculty members willing to run rough-shod over the requirements of the Faculty Handbook, exploiting their students to advance their on-campus pedagogical or personnel agendas? An administration so terrified of the faculty mob that the president seemed unwilling or unable at critical points to articulate even a formulaic support for due process? Town-gown relations so warped that the university had entered into a (secret) agreement with the local police to allow for Duke students, and only Duke students, to be prosecuted with the maximum harshness for certain crimes?

No. The lacrosse case “unfortunately had a stifling effect on our administration” by scarring “the administration’s ability to comment on Duke’s social culture.” (Of course, the administration did “comment on Duke’s social culture,” first through Richard Brodhead’s infamous April 2006 campus letter and then through a Campus Cultural Initiative run by some of the most extreme anti-lacrosse voices among the faculty. Does the current Chronicle support any of the CCI’s recommendations, such as reorienting Duke’s athletics program in such a way that would all but certainly require withdrawing from the ACC?) “The lacrosse scandal,” according to the Chronicle, created an “enduring narrative . . . of rowdy, belligerent parties—with sexist and racist overtones—and the entitled students who attend them.”

To the extent this narrative took hold, it’s a development fueled by misplaced initial media coverage, followed by the conscious efforts of Duke’s own “activist” faculty (beginning early on, with William Chafe) to transform the event into a character assault on the lacrosse players to avoid accountability for their own rush to judgment. But this “historicizing,” to use the Chronicle’s word, is of little interest to the current editors. Instead, they worry that Brodhead has been too “shy” in commenting about matters related to campus culture.

A second Carrington‑related item came from Washington Monthly, a publication I read regularly for its quality political analysis. This piece, however, fell well below the publication’s usual standards.

Daniel Luzer, the Monthly’s web editor, informed readers that Crystal “Mangum, a black single mother, got into an argument with several lacrosse players and accused several members of the team of rape.” (Kim Roberts, of course, got into an argument with several lacrosse players; no evidence ever surfaced that Mangum did.) More: “Several players were arrested anyway, none were found guilty.” Actually, the three falsely-accused players received a declaration of actual innocence from the AG, a far different standard that being not “found guilty.” And lest any reader fail to detect Luzer’s spin, he concluded his piece by quoting commentary on the lacrosse players’ character from “one columnist,” who he declined to identify. The columnist turned out Hal Crowther; the quoted column, from the Nifong-backing Independent, might have been the single worst piece of commentary produced in the case.

Luzer appeared uninterested in exploring whether Crowther’s (and Indy’s) seeming ignorance of Nifong’s ethical misdeeds or the criminal case’s non-existent basis rendered less-than-credible their cultural analysis of the case. Indeed, Luzer’s post offered no hint of why, of the hundreds of pieces on the case, he chose Crowther’s as the single analysis from which to quote. Did Luzer find persuasive Crowther’s claim, in the same column, that those who criticized Nifong’s ethical misdeeds needed to “catch a glimpse of your inner racist in the mirror”? Does Luzer agree with Crowther’s characterization, in the same column, of the lacrosse players as “subhuman”? If not, why did he find Crowther credible as a source for cultural analysis of the case?

I e-mailed Luzer to ask if he, in fact, had any evidence that Mangum “got into an argument with several lacrosse players,” and noted that the players were deemed innocent, rather than “found” not guilty. He replied that he didn’t have evidence of his former claim, and ignored the latter point, but was willing to edit his post to eliminate the reference to a Mangum argument. The new post, however, did not indicate anywhere that a correction had occurred. That Luzer initially presented events at the party in an inaccurate fashion that rendered Mangum’s tall tale at least somewhat more credible, by inventing an argument involving her that never occurred, readers of non-cached versions of the Washington Monthly will remain ignorant.

A sense of non-accountability links the Chronicle and Luzer items: Indy seemed oblivious to Nifong’s misdeeds, and published wildly slanted (and in some cases, simply wrong) attacks on the lacrosse players, but still can be cited by a well-regarded publication as a reputable source for cultural analysis of the case. Brodhead’s belated one-paragraph apology was stillborn, and his campus culture initiative misjudged the faults that existed in 2006-7, but Chronicle editors can still yearn for his commentary on campus culture, without any indication or reason to believe that Brodhead learned from his past mistakes.

Then there’s adjunct law professor Wendy Murphy—who, if nothing else, is an expert on making mistakes. In an interview with AJR shortly after the criminal casecollapsed, Murphy justified her performance by citing the structure on TV or cable news programs: she was, she said, booked to argue the prosecution’s side of things. If she had to make things up to do so, it seemed, that was just part of the game.

Surely someone who made things up as much as Murphy did should forfeit all future credibility with the mainstream press. Yet last year, there was Murphy, invited to guest lecture by none other than Poynter, an organization supposedly devoted to good-journalism principles. And a couple of days ago, there was Murphy, an invited columnist for the New York Times’ “Room for Debate” section, opining on the government mandate for colleges to lower due-process protections for students accused of sexual assault.

Even more incredibly, Murphy’s piece was one of two presented in opposition to the government policy—on grounds that campus judicial procedures (in which accused students usually can’t have lawyers, often can’t cross-examine their accusers, and always can be convicted at a 50.1% threshold) don’t do enough to secure convictions.

“Fair and balanced,” Times style.

Quote of the Day

"Duke University has a long tradition of guarding responsible academic freedom for its entire instructional staff, and the university itself cherishes and guards against incursions upon its own essential academic freedoms."

See below, statement of Duke attorney Tom Segars to Judge Brock Hornby.