Former defense secretary Donald Rumsfeld defined the concept as “things that we now know we don’t know.” It didn’t help him much in planning the Iraq war, but I thought I would more usefully apply it to the items raised by Duke’s factual response, the first time the University has gone on record regarding the specific allegations against it.
(1) When did senior administrators become aware that—in violation of FERPA—Duke Police Officer Gary Smith provided the lacrosse players’ keycard information to the Durham Police?
(2) What was the rationale employed by Duke’s senior administrators in electing not to inform dozens of their own students that a Duke employee had violated their FERPA rights? Is this “wall of silence” (to borrow a phrase) the normal approach Duke takes when its employees violate the FERPA rights of its students?
(3) As to why Duke remained silent when a court proceeding took place regarding Mike Nifong’s attempt to subpoena the keycard information he already possessed, the Duke filing suggests the University’s reasoning (substitute “FERPA-protected material” for “NTO application”): “Duke University Defendants . . . further deny that they had any authority or obligation to rebut or correct any assertions in any NTO application regardless of the truth of the allegations.”
Former SANE-nurse-in-training Tara Levicy
(1) When did senior administrators at Duke learn—as they concede in their filing—that Levicy had examined Mangum even though Levicy was not yet credentialed as a SANE?
(2) When did Levicy’s supervisors first realize that Levicy’s stories constantly shifted, always in ways convenient to Nifong and contrary to the written record of her exam? Why did they not take steps at the time to properly supervise their rogue employee?
(3) What transpired at the June 2006 meeting between Levicy and Nifong? Were any other Duke employees (perhaps Levicy’s immediate supervisor, Theresa Arico?) present?
(4) Is it normal practice at Duke Hospital to allow someone (like Levicy) who hadn’t even been a nurse for a year to enter the SANE program?
The Duke Administration
(1) What steps, if any, did former BOT chairman Bob Steel take to correct the record regarding something the Duke filing implies he never said—his statement to the New Yorker that the season was cancelled not to protect the lacrosse players or to punish them for their alleged misdeeds, but because “we had to stop those pictures. It doesn’t mean that it’s fair, but we had to stop it. It doesn’t necessarily mean I think it was right—it just had to be done”?
(2) During his tenure as president, how many other athletic events had President Brodhead canceled because members of the team had engaged in underage drinking—which the filing suggests was (contrary to Steel’s “Kinsley gaffe”) one of the two reasons Duke cancelled the March 25, 2006 lacrosse game?
(3) What contemporaneous evidence exists to sustain the second proffered explanation for this extraordinary decision—Brodhead’s alleged concern with the safety of the lacrosse players? Why didn’t he mention this alleged concern in his statement announcing the cancellation?
(4) Duke’s filing concedes that a Duke employee (Sam Hummel) likely used Duke equipment to photocopy a “wanted” poster containing the lacrosse players’ photos, while at the same time maintaining that this action constituted protected speech and not harassment. Would Duke have adopted the same conception of its anti-harassment code if the photographs xeroxed by Hummel were of minorities?
The Group of 88
(1) When did Brodhead and other Duke senior administrators learn that—in violation of Duke rules—official university funds had been used to pay for an advertisement denouncing Duke students? What steps, if any, did the university take to discipline the sponsors of the advertisement, the African-American Studies program?
(2) Given that Duke administrators surely knew of AAAS’ unprofessional behavior by December 2006, why nonetheless did the Trustees (unanimously!) elevate the program to departmental status?
Officer Christopher Day
(1) What pressure, if any, did his supervisors or Duke administrators place on Day to “modify” (as he eventually did) his March 14, 2006 operations report, which (accurately) portrayed false accuser Crystal Mangum as spinning fantastic, mutually contradictory tales?
(2) Why is the Duke filing so coy about exactly who might have interacted with Day between March 14 and March 30, and what reasons he might have had to have “modified” his operations report?
Duke’s Legal Strategy
(1) In its defense of Tara Levicy’s going rogue, how aggressively will Duke’s attorneys attack the integrity of the AG’s investigation? In particular, will they continue down the path offered in their filing of portraying Levicy as an objective truth-teller, even as the AG’s report established that “the SANE based her opinion that the exam was consistent with what the accusing witness was reporting largely on the accusing witness’s demeanor and complaints of pain rather than on objective evidence”?