Wednesday, May 29, 2013


Two follow-ups on recent posts.

First, an interesting column in the Chronicle from Andrew Beaton, reflecting on the Duke lacrosse team’s recent national championship victory over Syracuse. Speaking to both current coach John Danowski and two of the team’s star players, Beaton learned that from recruiting to current media coverage, the legacy of 2006-7 remains.

“The scandal may never go away,” wrote Beaton, “and it may always be among the first few results for ‘Duke lacrosse’ in a Google search. (Even after Monday’s 16-10 national championship win against Syracuse, it’s in the top three). And it’s a shame that a set of lies, a district attorney’s ambitions and presumptions of guilt have made it that way.”

Current Duke students who solely read the Chronicle must have been puzzled, however, by Beaton’s final sentence. A “set of lies”? A “district attorney’s ambitions”? “Presumption of guilt”—including from dozens of faculty on campus, amplified by a president too cowardly to stand up for due process?

Isn’t this the same paper that only a few months ago informed readers that the legacy of the lacrosse case was “a stifling effect on our administration” leading to “the administration’s ability to comment on Duke’s social culture”? The “enduring narrative” of the case was not, according to the authors of this unsigned editorial, a “presumption of guilt” by those who ran the school, but instead “of rowdy, belligerent parties—with sexist and racist overtones—and the entitled students who attend them.”

Perhaps the authors of that unsigned editorial might want to take a look at Beaton’s column. I should note that the column’s titlethat Coach Danowski changed the “meaning” of Duke lacrosse is far more reflective of the “enduring narrative” editorial than of Beaton’s column itself.


Second, regarding the North Carolina “right to counsel” I bloggedabout below. Given the current state of affairs on college campuses, action from state legislatures to ensure due process in campus disciplinary procedures is about the only chance for reform. The likelihood that colleges themselves will enhance due process is about as high as Michelle Bachmann being chosen next year’s commencement speaker at Harvard.

The original House bill could, and should, serve as a model for other states to follow—a clear, unequivocal assertion that accused students have the right to a lawyer. It’s my hope that as the measure moves through the Senate, there will be greater clarity provided to at least one of the House modifications—namely, the provision adding “non-attorney advocate” to the bill. (“Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.”)

Since all universities currently ensure “non-attorney advocates”—a toothless position—the bill’s effects would be meaningless. If, however, the bill is clarified to ensure that the student should have the choice between a lawyer and a non-attorney advocate, then the bill’s promise of a right to counsel could be significant indeed.

One other item from the bill, which fortunately was not modified by the House. The bill calls for a “licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.” One key element of the “Dear Colleague” letter (and changes demanded by “activists” at Stanford, Yale, and elsewhere as those schools have modified their campus disciplinary processes) has been significant structural restrictions on the process itself—severe limitations on the ability of accused students (or their “advocates”) to cross-examine witnesses, or to receive evidence in a timely fashion, or to present evidence of their innocence.

A legislative commitment to full participation might remedy some of those problems—but only, again, if the full participation came from an attorney, not a university-approved “non-attorney advocate.”

We’ll see what the Senate does.


Anonymous said...

Is there no evidence that all of those out of work lawyers are screening the college's and universities' student newspapers looking for situations where accused students weren't represented by counsel at the hearing? Have they all been brainwashed by the liberal faculty that loss of individual rights is justifiable? They're ignoring meal tickets.
Big Al

Anonymous said...


I've been following your updates since the beginning of the frame, but I believe this is the first time I've commented.

I'm wondering who at the Dept. of Ed. is originating these ideas to hobble due process?


Anonymous said...

"...looking for situations where accused students weren't represented by counsel at the hearing?"

Like you, I don't know why that isn't happening.

The lacrosse players were condemned without any hearing at all (despite guarantees in the student handbook), and that was just fine and dandy with the law,
because the federal courts have ruled
that student handbooks in NC are not enforceable contracts.
(You have to pay
for tuition, but contractually, you may as well have just given the university that money as a gift, because the university
incurs no contractual obligation to you.)

In fact, if university admins learn anything
from the lacrosse cases, it is that if you
spend enough money and stall long
enough, you can violate all
of your students' rights (including helping a prosecutor frame them for a crime which never happened), and suffer no serious
consequences at all
(but that's just MOO)

Jim In San Diego said...

Doug (@9:32):

You ask "who at the Dept of Education is originating these ideas to hobble due process?".

Every major department of government now has a large and growing race/gender relations department. Every one of them.

...Graduates of Duke's Race/Gender studies programs, and their peers from dozens of similar programs across the land, have to work somewhere. Since they (mostly) cannot do anything anyone else would pay them money to do, they have two entertwined career paths. Academia. And, government.

They go to work for the Department of Education. And Labor. And Commerce. You get the idea.

Examine the recent sexual harassment settlement with the University of Montana, for example. The University agreed to adopt a federal inter-agency proposal to eliminate many due process protections from those accused of sexual harassment.

The University also agreed that sexual harassment on campus no longer need be something that a "reasonable woman" would find objectionable. This standard, the legal standard for a decade, is now gone. Nothing replaces it. Sexual harassment can now mean anything, or nothing.

All those stupid things that we heard from members of Duke's race/gender participants a few years ago are now national policy. The policy will be enforced at every university which receives federal aid. That is to say, all of them.

Jim Peterson

A Duke Dad said...

What would happen if an accused student refuses to waive his/her rights to counsel, cross examination, timely discovery, etc, and stonewalled the procedure ?

Limits their statements to cries of "Tyranny, No Justice, Kangaroo Court".

Perhaps files civil suits.

How would the University then proceed?