Friday, September 07, 2007

Dashing Due Process

It would seem indisputable that a major lesson of the lacrosse case is that due process matters. Surely, with all the talk of case-related events as a “teachable moment,” we would expect all parties at Duke to rededicate themselves to celebrating the importance of transparent procedures as the best way to achieve the truth.

This background makes all the more astonishing items in yesterday’s Chronicle from Elliot Wolf, the immediate past president of the Duke Student Government; and Wolf’s successor as DSG president, Paul Slattery. Their findings: in Wolf’s words, “Slowly but surely, [the Undergraduate Judicial Code has] transformed (at least, on paper) an objective, transparent and responsive system into one with little transparency, dubious checks and balances, no accountability to the student body and procedures bordering on incoherent—greatly extending its reach and expunging our rights in the process.”

Wolf and Slattery conducted a thorough comparison of both the 1999-2000 Duke judicial code to its present counterpart and the current Duke code to that of peer institutions. In an interview with Wolf, Dean Sue denied that any substantial changes had been made in the code. In an interview with the Chronicle, Stephen Bryan, associate dean of students and director of judicial affairs, appeared to state otherwise, but minimized the relevance of the changes. Said he, “There’s been a general movement to move away from the legalistic language because it is an impediment to the educational message. We want to develop citizens that are going to represent Duke in the future . . . In the real world, the costs are much greater.”

Can a Duke administrator credibly claim—as a general principle, even ignoring events of the last 18 months—that upholding due process conflicts with the University’s educational mission?

In the event, the evidence collected by Wolf and Slattery speaks for itself. One enormous change: in 1999, the accused student had the right to a public hearing. Now, all hearings are conducted in secret, regardless of the accused student’s wishes.

To take two more of the several examples that Wolf cites:

Probable Cause, 1999: Required to initiate a proceeding, and defined as “a reasonable likelihood for believing that the accused person committed the alleged act(s).”

Probable Cause, 2007: Not mentioned. Instead, “there must be sufficient information to believe that a policy violation may have occurred and that the alleged individual/group may be responsible” (emphasis added).

Right against Self-Incrimination, 1999: Explicitly granted, with “no inference of guilt.”

Right against Self-Incrimination, 2007: No longer enumerated, with statement that refusal to provide written response to charges violates the University’s policy against any “failure to comply with directions, requests, or orders of any university representative."

When Wolf asked Bryan for the rationale behind the changes, the dean strongly implied that the Duke judicial system rests on the presumption of guilt. Said Bryan, “We have [gone] from a system that was very legalistic and took the emphasis off of what our goals were to a system where [the administration says], ‘Listen, we’re in a community where we all make mistakes; we want to help you learn from those mistakes.’”

Does being charged suggest that a student has “made mistakes?” Bryan seems to think so.

Bryan also gave inconsistent statements about the right to silence. “A student’s cooperation in the process can only help them,” he told Wolf at one point. Yet later in the interview, he conceded that an accused student “should think through the potential ramifications of cooperating”—suggesting that a student’s cooperation could actually hurt them.

Slattery, meanwhile, compiled a chart laying out 71 elements of judicial procedure—which confirmed Wolf’s point in statistical terms. The 2007-2008 judicial code grants an accused student 15 of these rights; the code from eight years ago gave an accused student 25 rights. (Stanford was the most due process-friendly of the institutions Slattery examined, with 36 rights granted.)

Slattery perceptively noted the effects of the administration’s guilt-presuming posture: “The claim is that if you have procedural rights, the focus becomes ‘getting off’ and that stands in the way of the educational process of admitting that you’re guilty. Judicial Affairs shouldn’t have a self-contained educational mission. It should serve the overall educational mission by resolving conflicts and disincentivizing destruction or disruptive behavior.”

In its most basic form, the administration’s restrictions of rights suggest a failure to understand that procedural safeguards present the best path for determining the truth.

This is, its worth noting, the same administration that consented to the DPD’s “separate-but-equal” policy of punishing Duke students on the basis of their identity as Duke students more severely than all other Durham residents in cases involving minor crimes such as alcohol and noise violations. It’s also an administration whose president, in a July 2006 letter, affirmed that the purpose of a trial in the lacrosse case would be “for our students to be proved innocent.”

The failures of both the "separate-but-equal" policy and the presidential enunciation of a trial to prove innocence might have prompted the administration to rededicate itself to upholding Duke students’ procedural rights. Unfortunately, the Wolf/Slattery findings appear to dash such hopes.

44 comments:

Anonymous said...

Amazing. Once again, Duke should be ashamed.

Anonymous said...

It's amazing to me that parents continue to pay to have their children used and abused.

Gary Packwood said...

Duke Student Government Paul Slattery's memo to Professor James Coleman of Duke Law School.

Ah...we hate to call on you again professor, however we have a little matter that needs your attention...in your spare time, of course.

Give me a call, please.

All the Best

Paul
::
GP

Anonymous said...

Duke will pay a long term price if they do not clean house. I can't believe a joker like Brodhead is still on the job.

I wonder if, in the next 5 years, we will have data on potential Duke students (and not just white men)who ended up in the Ivy League, Georgetown, Stanford, Washington Univ, Vanderbilt, etc. They can cover up for awhile (inc scholarships, more international students, maybe inc Asians, etc)but the truth will catch up with them.

There is something terribly wrong in Durham---> and it took a guy from Brooklyn College to help expose this. Not a local guy.

Reading KC's book-it's amazing (with some notable exceptions)just how little support they received from Duke/Durham.

Anonymous said...

Wow. This is scary, although it does explain Duke's behavior over the past 18 months.

Do parents understand the capricous risk their children are in at Duke? Duke, the benevolant dictator. You pays your money, you takes your chances.

-RD

Insufficiently Sensitive said...

I read that article this morning, and even my insensitive jaw hit the floor.

Duke is reinstituting the Star Chamber, stamping out defendent rights one after another, and crowning the administrator in charge as Regent whose word is law - all for the purpose of teaching the student, of course, that behavior counter to the Regent's opinion of the moment is an indefensible admission of guilt. “There’s been a general movement to move away from the legalistic language because it is an impediment to the educational message. We want to develop citizens that are going to represent Duke in the future . . ."

I believe this is called indoctrination in other circles. Justice it aint.

Coming next in this progression is the long-tested institution of self-accusation and confession and penance, no matter what led to the trial. What an opportunity for anonymous denunciations. The Duke administration has learned nothing from the LAX trial - in fact has apparently brushed it off as a minor embarrassment en route to a new totalitarian - but politically correct, of course - state.

FIRE, where art thou?

Anonymous said...

Does Duke have a speech code? I suppose the CCI is (was?) meant to further erode rights and freedoms,
in the name of embracing diversity (or at least, acceptable diversity/viewpoints).

Anonymous said...

Duke has all but reproduced the infamous Star Chmber courts. One of the most "horrible" things the members of the lacrosse team did was to trust the administration and the police. They were naive in so many ways and none more so than in trusting the people who were to "educate" them. The administration of Duke were no more than self-serving people. Someone used the word "craven" to describe them . . . how fitting.

Anonymous said...

It is interesting to think that a system of justice so obviously stacked in favor of Duke University, actually, all but brought the house down. Why even a "fool" proof system given enough "fools" is not "fool" proof, or as Abraham Lincoln observed, "You can fool some of the people some of the time and some of the people all of the time, but you can't . . . ." You get the point and Duke University and its president and its administration might get the point. Perhaps Durham and its police department will get the point . . . thank goodness. Nifong and the Duke faculty are probably in that group of fools "fooled" all the time . . . (fooled) by themselves . . . what petty rascist.

redcybra said...

Paul Slattery and Elliot Wolf sound like the Stuart Taylor and KC Johnson of Duke. And Duke sounds like it's bringing back the "judicial system" of the Soviet Union.

Anonymous said...

"FIRE, where art thou?"

Indded. FIRE currently gives a "green light" rating to Duke for speech codes but it looks like it is a dangerous place if someone wants to railroad you.

Perhaps the green light refers to job protection for faculty who practice grade retaliation.

no justice, no peace said...

One might ask, "Did any from the Duke Law have authorship in these changes?"

Possibly worse, is if they did not and stood silently, as they almost universally did in the rape hoax. Professor Coleman being the notable exception.

The question becomes with whom does Duke replace both Brodhead and Steele?

How does one ensure a replacement is not worse?

When one places their actions/inaction in the context of events occuring around them, it becomes clear the ship has no rudder.

Tom said...

I am relieved that prior posters see the similarity to Stalinist procedure and cant. This mindset is found throughout liberal arts academia.

Anonymous said...

FIRE is generally concerned with student judicial rights only as they relate to free speech and free thought issues. Duke does not formally restrict speech on campus (there are no "free speech" zones or any other silliness of that kind). I think that explains the "green light." Also, as a private institution, Duke does not have to respect free speech rights--those rights only apply to the government and its agencies, i.e. state universities. FIRE can use moral suasion with private institutions, but not much else. Having said that, it is hard to understand what is being "taught" by secret processes where one does not have the right to confront one's accuser. Maybe at the next "A Duke Conversation" someone can ask Brodhead.--Buddy

Steven Horwitz said...

Duke is hardly the only or the worst offender in this regard. Almost every college or university has headed in this direction in recent years. The source of the problem is quite accurately identified by the students. Slattery wrote:

“The claim is that if you have procedural rights, the focus becomes ‘getting off’ and that stands in the way of the educational process of admitting that you’re guilty. Judicial Affairs shouldn’t have a self-contained educational mission. It should serve the overall educational mission by resolving conflicts and disincentivizing destruction or disruptive behavior.”

The key point is that Student Affairs professionals too often build "self-contained" domains in which they perceive themselves as having a unique/distinct educational mission, rather than doing exactly what Slattery says, which is "serving the overall educational mission" of the institution.

I think it's great that Student Affairs professionals see themselves as educators, and I really do think that they can play that role in a positive way, but that educational process has to be in service of the institution's overall goals. Student Affairs professionals can help students with their analytical, leadership, communication, and critical thinking skills in all kinds of ways through things like student government, residence hall assistantships, career services, and other student organizations. It works best when that work is seen as supporting the academic mission, not a separate educational endeavor.

scott said...

Said Bryan, "'...we want to help you learn from those mistakes.��

Is Bryan's adopted judicial code "teaching" anything worth learning? Not in my book.

Anonymous said...

I truly believe everything Duke stands for at this time goes against the US Constitution and Bill of Rights. Illegal immigrants have more rights in this country than a Duke student. An extreme school will only breed radicals like the Duke 88.

no justice, no peace said...

"...It should serve the overall educational mission by resolving conflicts and disincentivizing destruction or disruptive behavior...”

One wonders if the same applies to the faculty and administration.

What disincentives are in place to ensure faculty does not inflame destruction or disruptive behavior.

Of course the Klan of 88 come to mind as does administrative inaction.

Destructive or disruptive behavior...

It is becoming more and more difficult to hold the enforcers accountable.

Gary Packwood said...

Steven Horwitz 9:12 said...

...The key point is that Student Affairs professionals too often build "self-contained" domains in which they perceive themselves as having a unique/distinct educational mission, rather than doing exactly what Slattery says, which is "serving the overall educational mission" of the institution.

...I think it's great that Student Affairs professionals see themselves as educators, and I really do think that they can play that role in a positive way, but that educational process has to be in service of the institution's overall goals. Student Affairs professionals can help students with their analytical, leadership, communication, and critical thinking skills in all kinds of ways through things like student government, residence hall assistantships, career services, and other student organizations. It works best when that work is seen as supporting the academic mission, not a separate educational endeavor.
::
This is an excellent summary of what is really going on and I suggest that those interested in Duke take action to bring the Student Affairs people back into the academy as supporting the academic mission.

There is a larger challenge that also needs to be addressed concerning the career path for Student Affairs 'professionals' on campus. Essentially there is no career path for any of these people except for senior managers...who all dream of becoming university presidents. University presidents who have successfully changed the 'campus culture' and brought about that 'sense of community' in their previous job.

Changing the Duke 'campus culture' and bringing about that 'sense of community' is part of the calculus that resulted in the 'Take Back The Night' CASTRATE march; the anti-rape programs on campus and all the silence that enabled this whole affair to blow up.

Do people realize that Duke Student Affairs is a self contained organization with a $10 Million a year budget??
::
GP

Steven Horwitz said...

951:

As others have noted, Duke is a private institution and has no legal obligation to protect the constitutional free speech or due process rights of its students. Constitutionally, Duke's internal judicial system is under no more obligation than you are in making the rules for your house.

Whether universities *should* aspire to protect their students' due process and free speech rights to the greatest degree possible, perhaps because, oh I don't know, these are important values to protect even if one isn't obligated to - especially in a university setting, is a different question.

We can, as FIRE does, use moral suasion to convince private schools to follow the contours of the Constitution, but they are not legally obligated to. Duke, like other private schools with similar conduct codes, is not acting "unconstitutionally" here.

Anonymous said...

Re: 12:41 and others.

People keep bashing Duke, but honestly almost every school has these same issues and most schools are no better than Duke. It is just that this case has exposed many depressing items - items that would have been exposed at any other prestigious institution in the nation had the case taken place there instead. You think Duke and the Gang of 88 is so bad? Why did Cornell hire Group of 88er Grant Farred after his behavior? Clearly, MANY MANY professors would want a position at Cornell, and yet, of all the applicants, they chose Farred. Why did Vanderbilt promote Houston Baker (possibly the worst actor in the affair)? Because they loved him! Clearly, Duke is not the worst offender and people need to realize this. It's a widespread thing in academia, and people who keep bashing parents for sending their children to Duke have no idea what they are talking about! 99% of elite institutions in this nation are no different! It's a widespread phenomena and is in no way unique to Duke. Instead of putting all your anger on Duke, you should concentrate on changing the face of academia throughout the nation for the better.

inman said...

I would suggest that Duke could look at other Universities for "best practices" in student juducial matters.

I personally would suggest that Duke look at the honor codes and student judicial systems of the Virginia Military Institute or the University of Virginia. Both of these institutions have a long history of student-mandated and student-led accountability.

Yes, I realize that the notion of honor is not particularly PC and that honor codes (such as VMI's or UVA's) are suspect, given that they adhere to a strict sense of 'truth' and to the bright light of a judicial sun to assure its arrival and appearance. Further, I can assure you that the odds of Queer Theory or Latin American phallic studies ever being taught at VMI are approximately ... zero. My view, however conservative or right-wing or traditional or whatever, is that the honor codes of these schools and curriculum mandates at VMI are positive attributes. And frankly, the values inherent in these codes, these systems are good for our nation, especially in those schools that claim to be producing this country's future leaders.

Duke should certainly reevaluate its march towards a system that shields accountability and truth from the bright light of day.

no justice, no peace said...

One wonders if Duke is in compliance...

This made my day:

"As a condition for receipt of funds available to the Department of Defense (DOD) under this
award, the recipient agrees that it is not an institution of higher education (as defined in 32 CFR
part 216) that has a policy of denying, and that it is not an institution of higher education that effectively prevents, the Secretary of Defense from obtaining for military recruiting purposes:

(A) entry to campuses or access to students on campuses or

(B) access to directory information
pertaining to students.

If the recipient is determined, using the procedures in 32 CFR part 216, to be such an institution of higher education during the period of performance of this agreement,and therefore to be in breach of this clause, the Government will cease all payments of DOD funds under this agreement and all other DOD grants and cooperative agreements to the recipient, and it may suspend or terminate such grants and agreements unilaterally for material failure to comply with the terms and conditions of award."

rrhamilton said...

First a comment: I'm reminded by this posting that if the newest conservative is the liberal who was mugged last night, then the newest liberal is the conservative who was arrested last night.


Anonymous said...
Duke has all but reproduced the infamous Star Chmber courts. One of the most "horrible" things the members of the lacrosse team did was to trust the administration and the police.


My understanding is that the Duke police department is one of the few institutions to come out of this looking clean -- Am I wrong?

gwdprice said...

K C...I think this is big time stuff, a major manifestation of the same post modern group think that gave birth to the lynch mob of 88 ad. I would love to see you follow this a closely as possible. If you can't maybe you could encourage some of the other bloggers who have followed the hoax to latch on to this.

rrhamilton said...

Anonymous said...
FIRE is generally concerned with student judicial rights only as they relate to free speech and free thought issues....Also, as a private institution, Duke does not have to respect free speech rights--those rights only apply to the government and its agencies, i.e. state universities.

Duke will do anything that is necessary for its access to government funds. Let Congress or the NC legislature tie government funds to the procedural safeguards of accused students, and Duke will do whatever it takes to keep its mouth on the taxpayer teat.

Anonymous said...

Trust me . . . we want to help you learn . . . . . . . really? Duke is filled with people who will use and abuse you if you are not the right sex or gender or race.

Topher said...

Good heavens, Duke makes Jesuit justive look like a tea party. Stephen Bryan is just another Duke administrator - more concerned with CYA on the university's behalf than the best interests of the students.

I received email from him after my Stanford Daily column in which he denied having heard Brodhead say "whatever they did is bad enough" and "proved innocent," and asked for sources suggesting they were not real.

I easily delivered the sources - Brodhead said them, after all - at which point Bryan (who had one day ago claimed to have never heard the quotes) claimed to read Brodhead's mind ("I think he was referring to the hiring of strippers.")

These people are a disgrace. Duke is a zoo, a craven sea of administrative miasma. The Duke students on the whole seem to have been the best of the bunch, but I would never send my kids there with those apes running the place.

LarryD said...

10:22 - If we don't start with Duke, then which University should we start with?

And cleaning up Duke will throw a spotlight on the whole issue. "Raise consciousness" was the old '60s phrase.

Anonymous said...

Speaking of FIRE, Duke was one of only 8 schools in the country (out of 328 rated schools) to get the highest (green-light) rating for free speech. The others: Cleveland State University, Dartmouth College, Elizabeth City State University, University of Iowa, University of Pennsylvania, University of Nebraska at Lincoln, and Washington and Lee University.

http://www.thefire.org/index.php/article/7709.html?PHPSESSID=.

Anonymous said...

For the record, and this is a paraphrase rather than an exact quote; Lincoln said "You can fool all of the people some of the time, and you can fool some of the people all of the time, but you cannot fool all of the people all of the time".

Ralph Phelan said...

"Do people realize that Duke Student Affairs is a self contained organization with a $10 Million a year budget??"

Funny, back when tuition was cheaper schools seemed to run just fine without such a large "Student Affairs" bureaucracy.

I disagree with Steve Horwitz about the value of Student Affairs having an educational mission. I think they're almost purely parasitical and obstructive, and exist only because over the last 50 years the goverment has subsidized all and any college education "irregardless" of measureable benefits.

Ralph Phelan said...

Since our anonymous friend is absent I'll do his job for him:

Is Stephen Bryan a Communist?
As posters at 7:15 am and 8:56 am have noted, he'd make a good one.

haskell said...

anonymous 12:41

"Why did Cornell hire Group of 88er Grant Farred after his behavior? Clearly, MANY MANY professors would want a position at Cornell, and yet, of all the applicants, they chose Farred. Why did Vanderbilt promote Houston Baker (possibly the worst actor in the affair)?"

The answer is simple. The poor benighted souls who hired Farred and Baker simply do not know any better. Their upbringing has been deficient, their education laughable, and their judgement warped by marination in the brine of political correctness.

I would like to mention the parable of the State Fair Pig Races. A popular event appealing to the more vulgar of our citizens, which, of course, I am one of. Only pigs are allowed to race, and a pig always wins. If you are in the business of racing pigs, you probably want to find the fastest pig around.

Anonymous said...

Yes, and some of the fooled are marching along even now . . . thinking Nifong is . . . well, what are they thinking . . . . Where are we and why is Nifong going to jail . . . everyone knows . . . the potbangers know, the New Black Panther Party knows, the Duke president knows, the Duke administration knows, Durham knows, the Durham Police Department knows, and even the DukeGroup88 knows enough to stay away from the doors of this jail. Oh, to bang a pot and relieve the pain . . . . the Nifonganer is guilty and if he is guilty who is innocent.

Anonymous said...

I don't know why everyone is complaining about Duke students being stripped of their rights. If they're really innocent, they don't need rights.

Anonymous said...

topher at 12:43 p.m. said: "These people are a disgrace. Duke is a zoo, a craven sea of administrative miasma. The Duke students on the whole seem to have been the best of the bunch, but I would never send my kids there with those apes running the place."

Topher, I have very much enjoyed your contributions to this blog.
I do, however, think you need to take a closer look at your school, Stanford. Some of Duke's staunchest 88'ers, Wahneeba Lubiano and Orin Hatch to name a few, hailed from Stanford. They cut their teeth on virulent PC there.

Do you have kids?

Duke Alum

Debrah said...

To 5:53PM--

I think you mean Orin Starn.

Orin Hatch is an older Republican senator.

:>)

Anonymous said...

"If we don't start with Duke, then which University should we start with? And cleaning up Duke will throw a spotlight on the whole issue.'Raise consciousness' was the old '60s phrase."
(quote from larryd, 10:22)

I suggest that some of the Duke bashers on this blog (as opposed to those bloggers who care about Duke, criticize it, and are working to remedy the problems)
start with their own alma maters. Many colleges and universities either have experienced PC scandals during which administrators or trustees handled situations poorly or have current conditions ripe for a scandal to erupt. Some of the more publicized PC-initiated incidents are the "water buffalo affair" at Penn State, the Larry Summers controversy at Harvard, and the Brown date rape case. White males were the victims in these, although others claimed victimhood. Many other incidents have been in the news over the last decade.

If you are not just blowing hard on this blog and if you would like to help remedy the problems of political correctness by taking action, it would be good to look at the colleges with which you have affiliations and where you might have some real impact. If your college isn't a hardcore PC university, so much the better. You can work to nip a problem in the bud. Simply railing against Duke isn't going to eliminate PC around the country, or even at Duke, for that matter.

To answer your question, why not start with Duke, with a question: Why not start with all of them, why not raise consciousness of the issue on all campuses that have PC agenda-driven faculty and cowering, catering administrators. Don't wait for Duke to clean up. Take preventative and remedial steps on other campuses simultaneously. Now is a good time, as "Until Proven Innocent" has just been released," and if read properly, is not a bashing of Duke University in its entirety but an indictment of political correctness, as revealed in the actions or inactions of particular administrators and faculty and students (as well as an indictment of a corrupt local criminal justice system and the media nationwide).

Duke has the spotlight on it now. Now's the time to light up the other universities too. One person on this blog recently constructively mentioned that the film "PC University," now being screened in some cities around the country, could be used in conjuction with the Taylor-Johnson book to awaken people to the PC infestation on college campuses nationwide.

Anonymous said...

debrah, thanks much for correcting my Starn/Hatch confusion. And my apologies to Orin Hatch.

Anonymous said...

I wish I had a dollar for every time a parent proclaimed on this blog that he/she would never send his/her child (often described as gifted) to Duke and can't understand why anyone would. All those dollars could pay Duke's tuition for my above-average child who would have a shot at being accepted for he would not have to compete against all those gifted children whose parents make their decisions for them.

Janey Oro said...

Any word on the Duke administrators views on water buffalo?

Anonymous said...

"the 'water buffalo affair' at Penn State"

It was at UPenn. The offending administrator was Larry Moneta, who is now at . . . . . . Duke.

Duke Prof

Insufficiently Sensitive said...

A couple of earlier mentions of England's old Star Chamber courts pointed out a parallel between said 'courts' and Duke's new metamorphosed Undergraduate Judicial Code and its procedures for 'trying cases', now that all those bothersome legalistic student rights have been obliterated.

FIRE's founding book (THE SHADOW UNIVERSITY, by Charles Alan Kors and Harvey A. Silverglate, 1998) pointed out, in the Water Buffalo affair, that the judicial system at U Penn reported to our well-known Larry Moneta. Further, the Star Chamber precedent appears in the book here and there as an example of various universities stripping accused students of the rights we have (foolishly?) believed to endow us with due procedures under accusation. There's no doubt that FIRE takes such shennanigans very seriously, and would take an interest in the present case - particularly since Wolf and Slattery have documented the legal travesty by the Administration so well.