In last week’s New York Post, columnist Abby Wisse Schacter penned a piece on “presidential spinelessness.” She focused on events at
Duke President Richard Brodhead didn’t have the guts to demand some proof - or even to wait for charges to be filed: Faced with an outside community that was rushing to judgment, he canceled the entire lacrosse season and demanded the coach’s resignation. Months later, it’s now obvious that the rape/assault never happened. University presidents are supposed to uphold the highest standards of reason, discipline, leadership and moral clarity. But this bunch is too weak to lead.
Schacter’s column provides a glimpse of the task confronting Brodhead as he tries to deflect widespread criticism of how he handled the lacrosse case. After Duke hired a public relations firm, the president started touring, speaking to alumni groups and defending his actions. I heard from a few people who attended one such Brodhead gathering, and have read notes from another Brodhead talk.
The storyline from these gatherings goes something like this:
Neither Brodhead personally nor the administration as a whole rushed to judgment or did anything to fuel the media firestorm against the team. Instead, the president was one of the few people in the beginning to emphasize presumption of innocence. And if he did rush to judgment (which he didn’t),
Accepting the image of Brodhead as a latter-day defender of due process, of course, requires overlooking his silence about Nifong’s establishment of a “separate-but-equal” system of justice for Duke students. In the Nifong-orchestrated system, Duke students are treated according to procedures different than those used for other
In the event, a close examination of the events between March 16 and April 3 shows that Brodhead’s actions signaled a belief that team members, more likely than not, were guilty. As the president’s defenders have pointed out, each and every one of his statements contained a for-the-record reminder that, legally, his students deserved presumption of innocence—comments that were buried amidst much more passionate denunciations of the team and its alleged or actual behavior. Moreover, Brodhead took no actions that suggested he believed the players were innocent, even though members of his own administration had told team captains and lacrosse team parents that, based on interviews they had done and information they had received from Duke police, they did not think that a rape had occurred.
This approach made clear that Duke would offer no institutional resistance to whatever steps the “minister of justice” might take in going after the University’s students.
March 16 through March 23
Over the course of this week, Duke officials learned from Duke police that the accuser had given dramatically conflicting reports about what had happened—and what had not happened—the night of the party. They knew that the police were rightly skeptical of the accuser’s myriad, mutually contradictory, allegations.
Perhaps most important, however, Duke officials learned that the captains had behaved like people confident in their innocence. The students who lived in the house had cooperated fully with the investigation: they each spent several hours giving detailed statements to the Durham Police. Each also offered to take polygraph tests (an offer that the Durham Police, for reasons that remain unclear, spurned) and to submit DNA samples (which the Durham Police accepted). That they gave this evidence voluntarily, without even requesting lawyers, suggested that the captains had nothing to hide—a point raised by Susannah Meadows of Newsweek in a recent media forum.
The administration, for wholly understandable reasons, seemed to hope the allegations would go away. At the same time, Duke officials took at least two actions that would have had explosive legal ramifications against the University had a rape actually occurred:
- Apparently acting under orders from above, Coach Mike Pressler instructed all other players on the team to keep quiet about the incident—including not telling their parents. The entire team not being represented by lawyers from the start denied them a much-needed week to prepare, with counsel, how they would respond to the investigation.
- The Dean of Students office—the same office that would assemble the disciplinary “statistics” against the students later last spring—arranged for a local attorney, Wes Covington, to act as a “facilitator” of events between the players and police. This structure left it at best unclear if conversations between him and members of the team were privileged. In the end,
championed a dubious solution of having six more lacrosse players join the three captains in speaking to police without presence of an attorney. This advice is so peculiar as to suggest that whoever he was attempting to represent, it was not the players. Covington
On March 23, Nifong secured a procedurally fraudulent non-testimonial order mandating that the 46 white players give DNA samples. Police tipped off the media, which was waiting to film and photograph the lacrosse players as they entered the police station.
Given their belief that no crime occurred, it was not surprising that Duke officials initially made measured comments to local journalists. Athletic Director Joe Alleva told the N&O that Duke would “let the legal process work out . . . you’ve got to let the facts play out.” Duke spokesman John Burness informed the Duke Chronicle that the team would continue to play their games as scheduled. He said the university would await a report from the police department before taking any action, and that Duke “was monitoring the situation and cooperating with officials, as are the students.”
That afternoon, meanwhile, the team captains met with a group that included Duke executive vice president Tallman Trask, III (the number two person at the school), Alleva, and Pressler. They were assured that they could be completely candid with the administrators, since the conversation would be protected by “faculty-student privilege” (a privilege that does not exist). Alleva grilled them on what happened; the captains, from all reports, held back nothing. Upon hearing their unequivocal denials of the allegations, both he and Trask told the players that they believed the players were innocent.
(The captains had been represented by counsel from the start. That Duke officials nonetheless wanted to obtain from them detailed descriptions of the evening’s events outside the presence of their lawyers is not a policy normally associated with support for “due process.”)
Later that day, Pressler relayed the meeting’s results to the team. Trask said the University would take some disciplinary action for the party after the legal investigation was completed, suggesting that an appropriate punishment might have the players spending a day cleaning up the
That afternoon, a faculty meeting took place to discuss the incident; the N&O reported that the sentiment was “this is sad, and it’s terrible.” This meeting was the first sign of the faculty witch-hunt that would intensify in subsequent days, eventually leading to calls for the abolition of the team as a symbol of white, male privilege. Shortly after the meeting’s conclusion, a visiting professor of English, Faulkner Fox, who played a key role in rallying the community to brand the players guilty, sent out a list-serv request that “activists” organize what came to be known as the “pot-banging” protests.
The day opened with the N&O’s front-page story on the incident, featuring an interview with the “victim.” The article has been widely, and properly, discredited, but at the time it had enormous impact.
From the Duke angle, the article contained a stunning item. The piece concluded with remarks from Paul Haagen, chairman of Duke’s Academic Council, who said that violence against women was more prevalent among males who play “helmet” sports, such as football, hockey, and lacrosse. “These are sports of violence,” he said. “This is clearly a concern.”
As John in
Brodhead convened a meeting with faculty and administration officials to review the latest media accounts. They surely noticed protestors gathering for the game, holding signs that read “Don’t Be a Fan of Rapists.” Out of this meeting, it appears, came the administration’s decision to change course from the day before and forfeit that day’s game and one the following week.
Lacrosse parents had arrived in
What changed between March 24, when Duke officials assured the players that the game would proceed as scheduled, and March 25, when the Brodhead administration decided to cancel the game? The Bowen/Chambers committee, which investigated Duke’s initial response to the affair, does not appear to have received access to administrators’ contemporaneous e-mails, which might have shed more light on the rationale for the decision. The only plausible explanation: the cancellation resulted from a fear of protests fanned by the potbangers’ reaction to the N&O story.
Lacrosse parents, correctly, anticipated that the last-minute cancellation of the game would send a signal to the community that Duke thought the team was guilty. Several parents noted that Duke seemed willfully naïve about the public relations effect of its actions.
At a tumultuous meeting, the parents urged the assembled Duke officials (Trask, Alleva, Dean of Student Life Sue Wasiolek, and Vice President for Student Affairs Larry Moneta) to say publicly what all already had told them privately: that they believed the team was innocent. When the quartet refused to do so, the parents asked to meet with Brodhead. That request also was denied.
Administrators present at the meeting struggled to avoid contradictory stories. When asked why, given the seriousness of the charges, Duke officials hadn’t contacted the parents, Wasiolek cited FERPA regulations. Moneta, on the other hand, pointed to practicality concerns, reportedly remarking, “Do you know how many calls we get from the
According to recollections from many participants, the meeting ended with parents frustrated and upset at Duke’s handling of events. But in an interview published two days later in the Duke Chronicle, Moneta presented a radically different picture of the meeting’s tone. The Chronicle summarized his remarks in the following way: “the parents were frightened and nervous for their children.” Any fair-minded outsider would have interpreted this kind of reaction from parents as consistent with a belief in guilt.
Moneta, meanwhile, soon repudiated the position on innocence he had taken at the meeting, writing, “Not sure what I blurted in the heat of the conversation. What I’ve consistently said to parents is that I hope that all the players are exonerated but until the facts are finally determined, I take no position on the matter.”
Brodhead, it turned out, had no need to hear from the lacrosse parents, because he had already decided on his course of action. He would accompany the last-minute cancellation of the Georgetown game with a statement that sent a strong signal that he and Duke thought a rape probably occurred and implied that team members had not cooperated with authorities. That statement, along with the cancellation of the
Brodhead defenders have pointed out, correctly, that the statement included a for-the-record passage on the importance of presuming innocence. But no news outlet, for unsurprising reasons, focused on this section of Brodhead’s remarks—since his actions and other portions of the statement suggested his true beliefs were otherwise.
Accordingly, WRAL, the Herald-Sun, and the N&O each highlighted Brodhead’s two most newsworthy clauses: “Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke” and “The criminal allegations against three members of the men’s lacrosse team, if verified, will warrant very serious penalties.” The Herald-Sun article included a third, also highly negative, quote from Brodhead: “Whatever that inquiry may show, it is already clear that many students acted in a manner inappropriate to a Duke team member in participating in the March 13 party.”
Did Brodhead intend for the media to emphasize the “physical coercion and sexual assault” clause, thereby leaving the impression that he believed a rape occurred even if he didn’t know the identity of the criminals? It’s hard to believe otherwise: holder of a Ph.D. in English, he obviously possesses the ability to craft a statement to mean what he intends. Moreover, the almost unprecedented last-minute cancellation of the game suggested an act based on panic, not a presumption of innocence. Or, perhaps, Brodhead did intend to stress the presumption of innocence, but was singularly incompetent in doing so. Without access to contemporaneous e-mails between administrators, it’s impossible to know for sure what motivated Brodhead to say what he did.
As one lacrosse parent told me, “This nightmare never would have happened if we had proper legal representation earlier or if Duke had let it be known to
Tomorrow: The failure of appeasement; an Orwellian conception of “due process.”
(Posts from today and tomorrow are based on e-mail or personal discussions with more than two dozen participants in the campus events between March 16 and April 3.)