Saturday, May 27, 2006

Gagging in Durham

Fox News reports that Durham D.A. Mike Nifong is considering a gag order for the Duke lacrosse case. The request would have more credibility had the district attorney not made 70 public statements, many of them so inflammatory that an on-line forum archived them , in the weeks before the Democratic primary for county district attorney.

Having captured the nomination, Nifong has no continued political need to speak out; he is also confronting increasingly troubling revelations about his peculiar investigation. It turns out that when he “hinted” to Newsweek that the police file would show the accuser was given a date rape drug, it appears that he either (a) hadn’t read the file, which contains no toxicology report; or (b) deliberately misled the reporter. Thursday, defense lawyers filed a motion stating that the only mention of the accuser describing her alleged attackers came in the following note by a police investigator: “I asked her questions trying to follow up on a better description of the suspects, she was unable to remember anything further about the suspects.” So, Nifong either (a) didn’t turn over all case material to the defense, despite informing the court he had done so; or (b) dealt with an accuser who couldn’t give even a basic description of her alleged attackers, but then had no trouble doing so three weeks after the incident at a photo ID that blatantly violated state guidelines. And yesterday, another defense motion revealed that a previously unreported photo ID session (which also ignored state guidelines, in that it consisted solely of photos downloaded from the Duke lacrosse website) occurred on March 21, and police records from that session revealed that the accuser did not identify at least one of the arrested players, Dave Evans, as among her alleged attackers. As Ralph Luker reminds us, the latter two items come from the defense alone—though in the form not of leaks but of formal court motions, subject to sanctions if they contain demonstrably false statements.

Nifong’s desire for a gag order is unsurprising, given that he’s also under investigation by the state bar’s ethics committee and surely wants to avoid any further bad publicity while that process moves forward. The recent action of the North Carolina NAACP, however, is more troubling. Al McSurely, chair of the NAACP’s Legal Redress Committee, has said that the organization will ask for a gag order, which he euphemistically termed a "quiet zone/let's let justice work" motion. His justification, according to the Durham Herald-Sun, is that “media coverage of the alleged rape may deprive the alleged victim of her legal rights to a fair trial.” Leaving aside the question of why the NAACP didn’t desire a “quiet zone” when Nifong dominated the airwaves, the Constitution contains no mention of an accuser’s “legal rights to a fair trial”: the accuser has the power of the state on his or her side. Nor can an accuser’s legal rights somehow trump the very real constitutional protections possessed by defendants. The NAACP’s action, though unlikely to be approved, typifies the bizarre inversion of constitutional theory that has permeated this case, what defense attorney Alex Charns has termed Durham’s “Alice-in-Wonderland” style of justice. Jason Whitlock’s admonition is worth recalling: “If the Duke lacrosse players were black and the accuser were white, everyone would easily see the similarities between this case and the alleged crimes that often left black men hanging from trees in the early 1900s.”

At least the NAACP isn’t in the classroom. This week’s Chronicle contains a memoir of one spring term class that should shame the Duke administration. Author Elizabeth Chin spent the spring 2006 term as a visiting professor in Duke’s cultural-anthropology department, where she taught a course called “Girl Culture/Power.” The class, she reports, enrolled a good number of “well-off white women who were in the most elite sororities at Duke,” balanced against three men, “several heterosexual women of color [Chin doesn’t explain how she knew they were heterosexual or why this fact is relevant], and a handful of what I affectionately thought of as my radical feminists.”

While critical of the Duke administration—which hardly went out of its way to defend the lacrosse players’ rights—for not creating a “town meeting, teach-ins, and coordinated efforts in residence halls” to address the allegations against the players, Chin committed herself “to keep the classroom a safe space for all the students, while allowing people on both sides of the issue to hear and understand each other.” That the space was a whole lot safer for one side than the other became clear when an anti-lacrosse player rally coincided with one class session. Chin stopped class and instructed the students to go outside and listen. (There’s a good strategy for an easy prep.) “After a while,” she relates, “I noticed that, one by one, the sorority girls were going back inside.” (Many of the sorority “girls” knew members of the lacrosse team.) Chin continues: “When I went after them, their pain and frustration were obvious. ‘It's just not fair being targeted as a group,’ wailed one woman.” Wailed? Imagine the appropriate condemnation from faculty members like Chin if a male professor had used this verb to describe an upset “girl” in his class.

Chin’s response to the demonstration and its aftermath effectively assumed that the players were guilty, her view of the scandal was undeniably correct, and teaching diversity is the only conceivable approach in the classroom. Her view of an in-class “olive branch” over the lacrosse issue consisted of a “radical woman” admitting that she could have a common experience with a sorority “girl”: the “radical woman” stated that she, too, knew a man who “had raped someone.” (No rush to judgment about the lacrosse players there.) Leaving aside the question of whether it was an appropriate use of class time to peruse a demonstration with whose message the instructor sympathized (Chin gives no suggestion that she also cancelled class to observe the “innocent” demonstrations that occurred later in the term), Chin might have explored with her “radical feminists” why so many on campus, including the demonstrators, seemed to presume guilt—even at an early stage of the investigation, when the lacrosse players had all denied criminal wrongdoing, their captains had told the authorities they would take lie detector tests, and the procedural irregularities that have come to characterize Nifong’s inquiry already were becoming apparent. This question appears not to have occurred to Chin, who describes herself as a “good liberal.” Apparently she doesn’t see promoting civil liberties as the kind of activity in which a “good liberal” would engage.

Chin would be proud, however, of how the Washington Post and New York Times have addressed Durham matters; as Stuart Taylor noted, “Many members of the national media have published grossly one-sided accounts of the case.” A Post column by Lynne Duke relies on “facts” that are not only, at best, assumptions, but also contradict much of what is now known about the case. It’s absurd to say, based on the evidence that now exists, that the case is “some ways reminiscent of a black woman's vulnerability to a white man during the days of slavery, reconstruction and Jim Crow, when sex was used as a tool of racial domination.” Commentator Julianne Malveaux even more oddly added that as "African American women are not systematically valued in our society,” the accuser is getting "no benefit of any doubt." If nothing else can be said about this case, it’s that the accuser has received the benefit of the doubt. Indeed, the state went so far in giving the accuser the benefit of the doubt that one prominent legal analyst, Andrew Napolitano, has predicted that the case could end with Nifong’s losing his license to practice law.

And in a piece behind the Times firewall, Harvey Araton cited plans by the women’s lacrosse team to wear armbands expressing sympathy with the accused men’s players at this year’s Final Four (held on May 26) and a request by the Duke athletic staff that the women’s basketball players not comment in interviews about the lacrosse case at this year’s women’s Final Four (held on April 2) to claim that “a basketball team with a majority of African-American women was in effect censored while the lacrosse gals, 30 of 31 of whom are white, are apparently free to martyr their male lax mates.” This seems like a compelling argument—if only it were factually correct. Actually, as Newsday reports today, the Duke athletic staff made the exact same request (not to comment publicly on the case in interviews with the media) of the women’s lacrosse “gals” (funny how Araton describes them as “gals” and the basketball players as “women”), and they honored the request. Araton produces no evidence that the basketball team wanted to wear armbands sympathizing with either the lacrosse players or the accuser, or were “censored” in any other way beyond receiving the same request that was given to the lacrosse team about not speaking publicly.

Specifically targeting the women’s lacrosse players, Araton wonders how “cross-team friendship and university pride [could] negate common sense at a college as difficult to gain admission to as Duke,” with the women’s players “staking their own reputations” on the case’s outcome. By making such a claim, of course, it could be said that Araton is staking his own reputation on his critique. It might be that the women’s lacrosse players have been paying attention to events in Durham that have occurred since the basketball Final Four; it’s unclear if Araton has done so. Perhaps they noticed that even though Nifong promised that DNA evidence would positively identify the guilty, the tests for 45 of the men’s team came back negative and the test for the 46th was inconclusive. Perhaps they noticed that, after being arrested with a warrant alleging he committed a 30-minute crime on March 14 (i.e., after 12.00am), Reade Seligmann produced electronic and video evidence showing that starting at 12.06am, he was either text-messaging his girlfriend, in a cab, or at an ATM machine a mile away. Or perhaps they noticed that the accuser identified another arrested player, Dave Evans, as having a mustache, which he did not, and, apparently, initially didn’t identify him at all. Maybe their willingness to evaluate new evidence and respond accordingly explains how those “lacrosse gals” were selected for “a college as difficult to gain admission to as Duke.”

Araton concludes his column by noting, “When behavioral codes intersect with the vexing subjects of sex, race and class on campuses like Duke’s, there are still many more questions than answers. Today, if I could ask just one, it would be directed at the Duke basketball women. What do they think of those sweatbands the women’s lacrosse team was planning to wear?” New York Times columnists have access to the internet (on which the women’s basketball team roster is easily found) and the ability to use e-mail and the telephone. If Araton considered this question so important, why didn’t he simply ask the women’s basketball players? Could it be that he feared the answers he received might contradict the Times’ take on the issue, which even as milquetoast a public editor as Bryon Calame has faulted for making decisions where sometimes “fairness suffered a bit,” referring “to an application for a search warrant as if it were somehow a court finding of fact,” and inexplicably downplaying Nifong’s possible political motivations? Since I too have internet access, I e-mailed Araton to ask him.

Professor Chin, no doubt, would share Araton’s outrage at the conduct of the women’s lacrosse team at last night’s Final Four. Coach Kerstin Kimel has emerged as one of the few heroes of this affair, breaking what could be termed the university’s “blue wall of silence” to become the first Duke administrator, professor, or coach to publicly say anything positive, in his or her own voice, about the men’s lacrosse players’ academic, athletic, or personal qualities. Her team seems to share her sentiments. To show solidarity with the three men’s players targeted by Nifong, women’s team members wore sweatbands with the players’ numbers, or with the men’s team slogan, in their semifinal game against Northwestern. (Despite outshooting Northwestern by double digits, Duke lost in overtime, 11-10.) After the game, Kimel said that any attention the team received for the wristbands paled in comparison to “watching your friends be arrested; watching your fellow students not support fellow students; watching professors not support students.”

My sister was a three-year starter for the Columbia women’s basketball team, and I got to know many of the players quite well; I also taught a good number of women’s swimmers at Harvard and women’s soccer players at Williams. Despite Araton's insinuation, female college athletes have never struck me as a group likely to go out of their way to stand up for males that they believed were sexist. I suspect Professor Chin would have a different view: when a sorority “girl” suggested in class that the players “might” be innocent, Chin believed that those “affectionately thought of as my radical feminists” could only interpret the remark as saying that the student protected “white privilege uncritically.” But in a jurisdiction whose district attorney appears to believe that basic state procedures don’t apply to him, and on a campus that in the past 75 days has experienced the effects of faculty “groupthink” at its most pernicious, another phrase from Chin’s ideological arsenal seems appropriate to characterize the lacrosse players’ course of action. At the Final Four, it might be said that the women’s team displayed the courage to speak truth to power.

[Originally posted in Cliopatria.]

Monday, May 22, 2006

Duke's Party Line

This week’s National Journal contains the single best analysis of the Duke case yet to appear. Penned by national correspondent and senior writer Stuart Taylor, the article is direct. “When a petty-tyrant prosecutor has perverted and prolonged the legal process without disclosing his supposed evidence, and when academics and journalists have joined in smearing presumptively innocent young men as racist, sexist brutes—in the face of much contrary evidence—it's not too early to offer tentative judgments.”

The article describes a rogues’ gallery headed by Mike Nifong, condemned for “gross prosecutorial misconduct” in Taylor’s earlier examination of events in Durham. But Taylor does much more than simply discuss the case: he now turns his attention to the behavior of Duke and the national media as well. He correctly characterizes the document produced by William Bowen and Julius Chambers as an attempt to “slime the lacrosse players in a report . . . that is a parody of race-obsessed political correctness.” The Group of 88 earns a spot in Taylor’s rogues’ gallery for “exuding the anti-white racism and disdain for student-athletes that pollutes many college faculties,” all while “treating the truth of the rape charge almost as a given.” And he faults the national media for having “published grossly one-sided accounts of the case while stereotyping the lacrosse players as spoiled, brutish louts and glossing over the accuser's huge credibility problems.”

Taylor concludes that “the available evidence leaves me about 85 percent confident that the three members who have been indicted on rape charges are innocent and that the accusation is a lie.” And his piece went to press before three revelations in the last four days: that despite North Carolina law forbidding prosecutors from intentionally avoiding “pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused,” Nifong had inexplicably failed to check the incident-night records of the accuser’s cellphone, which the authorities have possessed for eight weeks; that when Nifong publicly rationalized the lack of DNA evidence by suggesting that the attackers wore condoms, he apparently contradicted the accuser’s own initial version of events; and that, despite suggesting to Newsweek that the players might have given the accuser a date rape drug, he declined to turn over a toxicology report to the defense. None of these items should increase public confidence in a prosecutor for whom “rogue” might turn out to be an overly charitable description.

Taylor also spoke to Kerstin Kimel, a former National Defensive Player of the Year in college women’s lacrosse and the current coach of the Duke women's lacrosse team (which on Saturday earned a spot in this year’s Final Four). The men’s players, she noted, “made a very bad decision in hosting the party and hiring strippers. But I will tell you they are great kids. There is a strong camaraderie between our teams, and my players—being smart, savvy young women—would not associate with them if they felt on the whole, there was an issue of character." Kimel added that the actions of professors like the Group of 88, and the silence of their faculty colleagues, attracted her players’ notice. "Being at an elite university," she observed, "where every side of every issue is debated, my kids were shocked, disillusioned, and disappointed that their professors and the university community were so one-sided in their condemnation of the lacrosse players."

Seventy days after the incident, Kerstin Kimel is, to my knowledge, the one and only full-time Duke administrator, professor, or coach who, in his or her own, voice has publicly said anything positive about any member of the men’s lacrosse team’s academic performance, athletic skill, or personal characteristics.

Academics, even academic institutions, are supposed to be open to reviewing new facts and adjusting their behavior and beliefs accordingly. Academic administrators, of course, desire above all else to avoid controversy. So confronting a prosecutor whose initial public relations burst suggested overwhelming, unimpeachable evidence of a crime surrounding an incident that unquestionably involved difficult-to-defend, though perhaps all too common, behavior (drinking, strippers), it’s easy to rationalize the early actions of Duke president Richard Brodhead (suspending the team’s games and then season, even scapegoating Coach Mike Pressler). Less explicable was Brodhead’s mid-April refusal to protest Nifong’s sending police to campus to question his own institution’s students outside the presence of their counsel. And the current party line at Duke, perhaps best reflected in the Bowen/Chambers report, is tough to defend, with facts frozen in place circa March 28, when the district attorney’s version of events seemed possibly credible and many viewed Nifong as courageous rather than a rogue.

Another manifestation, sadly, of this current Duke line is a recently published article, “A Spring of Sorrows,” in Duke Magazine. The magazine is an official publication of the university; its publisher reports to the senior vice president for alumni affairs, who in turn reports to Duke president Richard Brodhead. So it’s safe to say that messages of which Brodhead strongly disapproves do not appear in Duke Magazine.

The article contained quotes from four Duke professors, appropriately beginning with the head of the faculty senate. Then article readers heard from Anthropology professor Orin Starn, who claimed that Duke athletes receive “education lite”; previously, Starn had singled out the lacrosse team for particular condemnation: “Unlike at least some of the men's lacrosse players, most Duke athletes are smart, delightful and hard-working.” Making Starn appear moderate by comparison are the only other professors quoted in the article: Peter Wood and Houston Baker, the faculty’s two most outspoken critics of the men’s lacrosse team. Their comments are predictable, and, as more and more facts and procedural violations about the case have come to light, increasingly unsustainable.

Despite the monolithic negative faculty attitudes portrayed in the article, the Coleman Committee managed to interview 10 professors who had taught sizeable numbers of lacrosse players. Nine had wholly positive or neutral comments about team members. (The committee's report cast strong doubts upon the credibility of the tenth professor, Wood, a fact unmentioned in the article.) The report also detailed the very strong academic performance by the team members—among the best of any Duke team—calling into question, to put it mildly, the impressions of Professor Starn. The voices of Starn, Wood, and Baker are critical aspects of the campus culture. Yet while the article mentions Peter Lange’s rebuke of Baker's public letter urging due process be set aside for the lacrosse players’ enrollment at Duke, it contains no discussion of how subsequent revelations in the Coleman Committee report badly weakened the statements of Wood and Starn. Professors making public statements in a high-profile case that later turn out to be intellectually dubious strikes me as a significant item in any examination of campus culture.

To give a sense of how the Duke Magazine article handled evidence contradicting the administration’s current party line, it’s illuminating to compare the Coleman Committee’s analysis of the team’s academic performance with the article’s description of the report. The report noted the following:

The Committee surveyed ten members of the Duke faculty in whose courses a significant number of lacrosse players have enrolled. With one exception, those members of the faculty who have been able to identify lacrosse players in their classes report that the students have been engaged and “certainly have caused no problems.” The professors report that the students appear to take their academic obligations seriously. Two of the professors told the Committee that when the players had to miss class, they appropriately notified the professor and completed any make-up work. One instructor thought the lacrosse players were willing to defend unpopular positions in class, but had not been disruptive in any way. The students were generally described as polite. Two professors noted that the players tended to “move as a group.” One of these professors separated them in class, “simply because a ‘team’ in a classroom is a particular energy; but this is not different from other team members taking classes together.” One professor mentioned that he did not remember “any race or gender related problem caused by this group in my class.” Several of the professors we contacted were not aware that they had lacrosse players in their classes. There have been no charges of academic misconduct against any member of the team . . . Lacrosse players also have performed well academically. In 2005, twenty seven members of the lacrosse team, more than half, made the Atlantic Coast Conference’s Academic Honor Roll, more than any other ACC lacrosse team. Between 2001 and 2005, 146 members of the lacrosse team made the Academic Honor Roll, twice as many as the next ACC lacrosse team. The lacrosse team’s academic performance generally is one of the best among all Duke athletic teams. (The ellipsis section called into question the credibility of Professor Wood’s highly negative attitude toward the team.)

Here is how the Duke Magazine article characterizes the above material:

Such [negative] concerns [articulated by Professor Wood] notwithstanding, the faculty committee set up to review the lacrosse program painted a more nuanced picture. The comittee [sic] surveyed faculty members whose courses included significant numbers of lacrosse players. Broadly speaking, those faculty members who were able to identify lacrosse playes [sic] found that they took their academic obligations seriously—even as they tended to stick together in class.

One positive item tempered by one vague comment presented in a negative (“even as”) fashion, lacking the context of the professor’s qualification that the lacrosse team sticking together was no “different from other team members taking classes together.” No mention of the team’s impressive academic performance, as compared to other Duke teams or other lacrosse teams in the ACC. No mention that professors reported no race- or gender-related problems from team members in class. No observation on how, given some surveyed professors didn’t even realize they had large numbers of lacrosse players in their classes, it stands to reason these faculty members simply viewed the players as typical Duke students.

Perhaps two percent of all Duke graduates will read the Coleman Committee report. Duke Magazine’s characterization of that report, on the other hand, has been sent to all alumni.

Even more disturbing was the article’s examination of student attitudes regarding post-March 13 campus culture. The piece contained quotes on the case from only one student—Nick Shungu, an African-American senior. Shungu, who comes across as passionate and very intelligent, remarked that his friends considered themselves "extremely vulnerable" at Duke (not because they lived in a jurisdiction whose chief prosecutor doesn’t adhere to basic state procedures, but because the accuser’s allegations confirmed the pervasive racism at Duke.) He added his hope for the university to issue "an acknowledgement of sympathy for the alleged victim." The article also included a lengthy discussion, filtered through the head of the Duke Women’s Center, about sexual misconduct by male Duke students and the dislike of some Duke women for the campus party scene. No comments from Kimel here, nor any mention of the Coleman Committee’s conclusions regarding the lacrosse team’s positive treatment of women students and staffers on campus. Nor was there any mention of articles and editorials in the campus newspaper and other publications that as the spring term progressed, a groundswell of student support developed for the lacrosse players--or that, according to the student newspaper, views such as Shungu's fell way outside the mainstream of student opinion.

I emailed the author of the article, Robert Bliwise, to express my concerns about the piece’s imbalance, and he was gracious enough both to send me a thoughtful reply and to consent to my request that I reproduce the section below. He said that, “The main intent here was to discuss the issues of campus culture brought to the surface by the initial Buchanan Blvd. incident and its aftermath, not to gauge the particulars of the (confusing and ever-unfolding) legal case. So the notion of introducing the voices of those who ‘sympathized with the team members' plight’--or, for that matter, the voices of those whose focus might have been seeking more severe university action against the team members--seems irrelevant in this context. The point of the story was not to gauge support or lack of it, but to explain, clarify, and contextualize what had been reported.”

If Baker, Starn, Wood, and Shungu did not constitute “the voices of those whose focus might have been seeking more severe university action against the team members,” then who did? (I’m unaware of any member of the Duke community whose public criticism of the men’s lacrosse team has been more intense.) Apart from the unusual portrayal of the Coleman Committee report, the article finds no defenders of the lacrosse team, and goes off campus to find a defender of the athletic program, Duke graduate Jay Bilas of ESPN. Kerstin Kimel obviously represented an on-campus point of view that differed from those in the article; so too did editors of the campus newspaper.

Moreover, a critical—I believe the critical—issue of campus culture exposed in the “aftermath” of the lacrosse incident is wholly unmentioned in the article: that, to my knowledge, 70 days after the incident, not even one Duke administrator or faculty member has publicly questioned the procedural irregularities that have marred Nifong’s handling of the case—despite the traditional celebration in the academy of respect for proper procedures, fair play, and the impartial evaluation of evidence.

The closest parallel to this emerging Duke party line is the performance of former White House press secretary Scott McClellan during the Fitzgerald-Plame investigation. For two years, McClellan functioned as a kind of human punching bag in press briefings, saying that he couldn’t comment on “ongoing legal matters.” Everyone understood, though, that he really meant he wouldn’t entertain questions about possible misconduct by administration officials. He had no problem with saying positive things about Karl Rove, Scooter Libby, or Dick Cheney. At Duke, there seems to be a claim that professors, administrators, or the alumni association don’t consider responses to “ongoing legal matters” appropriate in their ongoing examination of campus culture. Quite apart from the fact that any student of the McCarthy or civil rights eras could discuss how professors or colleges have long, and appropriately, offered contemporaneous critiques of procedural abuses in “ongoing legal matters,” it’s clear this prohibition really applies only to positive remarks about members of the men’s lacrosse team. Critical commentary, of any type, even if contradicted by evidence in the Coleman Committee report, is perfectly acceptable, and even reproduced in such items as the Bowen/Chambers report or the alumni magazine.

There’s one big difference, though, between McClellan and Duke. McClellan’s job was to defend the actions of the President and his advisors as effectively as possible. The last I looked, neither the Duke administration nor its faculty had any obligation to do Nifong’s dirty work for him. Indeed, the district attorney has proven more than capable of handling that task himself.

Over the past two months, one of two equally horrific events has occurred in Durham. The first is that three Duke students brutally raped a defenseless woman; and, in the aftermath, more than 40 other Duke students have participated in a (stunningly effective) conspiracy to prevent facts about the crime from coming to light. The second is that a prosecutor, for personal or political reasons, has perpetrated a massive miscarriage of justice, acting as if the state bar’s ethical and procedural regulations don’t apply to him; and that Duke administrators and faculty members abetted his crusade, perhaps unwittingly, by declining to use their influence to demand procedural fair play for the school’s own students—and, in some cases, by taking actions that, as Kerstin Kimel and Stuart Taylor pointed out, suggested they believed the worst of the lacrosse players.

If Taylor, hardly a figure known for rash or intemperate judgments, proves correct in his estimate of the embarrassingly weak basis of Nifong’s case, Kimel won’t be surprised. Nor will the Duke undergraduates who came out in support of the accused players. Most others at Duke, however, will have to take a hard look at their conduct during “a spring of sorrows.”

[Originally posted in Cliopatria.]

Friday, May 19, 2006

Nifong and the Black Vote

The one time I've attended a Supreme Court oral argument came in 2002; with a student group from Brooklyn, I saw the arguments for Republican Party of Minnesota vs. White. The case involved a Minnesota law that forbade candidates for the state's elected judiciary from announcing their positions on issues that might come before the bench. Writing for the majority, Justice Scalia declared the law unconstitutional, holding that while opposition to judicial elections might be reasonable, "the First Amendment does not permit it to achieve its goal by leaving the principle of elections in place while preventing candidates from discussing what the elections are about."

Republican Party of Minnesota dealt with the obvious tension between the legal and political arenas—a tension that, in a different way, has played a key role in the Duke case. While both of Mike Nifong's vanquished opponents, as well as opposing counsel, have claimed that political motives influenced the district attorney's actions, Nifong's motives for his peculiar behavior remain unclear, and, indeed, unfathomable. But election data suggests that his handling of the allegations probably ensured Nifong's renomination—though only because of North Carolina's unique election law and the peculiarities of a three-way contest in a racially divided electorate.

Two aspects of North Carolina election law contributed to the outcome. First, although party primaries require runoffs in all 11 states of the Old Confederacy, North Carolina alone allows the winning candidate in the initial primary to receive only 40 percent, rather than a majority, to avoid a runoff. Second, unlike states such as North Dakota or Rhode Island, which allow all voters, regardless of registration, to cast ballots in either party's primary, North Carolina law restricts primaries to registered members of the party and unaffiliated voters.

Though his last election contest had been in student government, Nifong had some strength before the case broke. He had the intense backing of the state party leadership (Democratic governor Mike Easley had appointed him). And his two opponents, Freda Black and Keith Bishop, had significant weaknesses. Black seems to possess a reputation as ethically challenged and being overly chummy with one of Durham's largest law firms. Bishop, a defense attorney, had never been a prosecutor, and had almost no money.

But racial politics threatened to squeeze Nifong. Bishop, the sole African-American running, secured the endorsement of the Durham Committee on the Affairs of Black People—which, as Ralph Luker has pointed out, traditionally has carried enormous weight with Durham's black voters. Black, meanwhile, enjoyed much higher name recognition than the appointed incumbent, and also raised more money. In short, if Black received a majority of the white vote and Bishop garnered a majority of the African-American vote—plausible outcomes before March 13—there was almost no way that Nifong could win.

Of course, he did prevail, by the slim margin of 45%-42%, or 883 votes. If North Carolina had the same electoral code as the South's 10 other states, this outcome would not have avoided a runoff. And while it's possible that Bishop's voters simply would have shifted to Nifong, the context of the case has changed dramatically since Primary Day. (This year's runoff election in North Carolina will occur on May 30.) First, the extraordinary nature of Nifong's procedural abuses have become more apparent, most notably with regard to revelations about the photo ID array and the refusal to consider Reade Seligmann's exculpatory evidence before the decision to indict. Second, a few prominent African-Americans have come out against the district attorney's tactics, most powerfully Jason Whitlock, who cautioned that the civil rights movement didn't occur "so that the poor, black and oppressed could surrender the moral high ground and attempt to inflict injustice on the privileged." Finally, the substance of Nifong's case has, if anything, grown shakier—as in his extraordinary admission yesterday that, eight weeks after the incident, authorities still hadn't examined the accuser's cell phone, which was taken from the scene, for any calls she might have made during the time of the alleged rape.

But since Nifong didn't need 50%, no runoff occurred. Both anecdotal and statistical evidence suggests that Nifong's pre-primary decision to bring two indictments (against Seligmann and Collin Finnerty) aided him with African-American voters. County Commissioner Philip Cousin, a local minister and member of the Durham Committee on the Affairs of Black People, stated after the primary, "The Duke lacrosse case was the overwhelming issue . . . When Nifong came through with the indictments, that indicated to the black community he would be fair." Meanwhile, Bishop's weak polling numbers shook the allegiance of some of his supporters; as one African-American woman conceded, "I wanted to vote for Bishop, but I knew he didn't have a chance, so I voted for Nifong." And then, of course, there were voters like North Carolina Central student Chan Hall, who told Newsweek that he wanted to see the Duke students prosecuted "whether it happened or not. It would be justice for things that happened in the past."

In the end, according to a study by Vanderbilt political scientist Christian Grose, Nifong carried the black vote, with 44% to Bishop's 31%. Freda Black, who had actively courted African-American voters on a platform of reducing gang violence, obtained the other 25%. It seems highly likely that more than 883 African-American voters shifted to Nifong as a result of district attorney's behavior. Nifong himself conceded as much: "It was obvious to me early on that we did really well in the predominantly black precincts. As I would go through the black community before the election, people would stop me and say, 'Keep your head up. We're with you.'"

Nonetheless, Nifong claimed, "If this issue had never come up we would have ended up with the same outcome," on the grounds that his actions "hurt me among conservative white voters." No doubt his behavior did, and has, hurt him with conservative whites. But in North Carolina, as in other Southern states, conservative white voters have increasingly drifted out of the Democratic Party. According to the latest voter registration figures, Durham County has 27,070 registered Republicans, 24,566 of whom are white. The county has 86,621 registered Democrats, 46,586 of whom are black. So the demographic bloc supportive of Nifong's behavior formed a majority of the Democratic electorate, while those most likely to be alienated by his tactics couldn't vote in the primary. As the director of the Durham County Board of Elections noted the day after the primary, "We had a lot of irate, irate Republicans who couldn't vote for district attorney."

One other most unusual demographic item in the Durham County electorate probably helped Nifong. Rape is a crime. But, as feminist theorists have contended and most defense lawyers understand, it's also a crime that men and women interpret somewhat differently. In normal circumstances, the fact that, in the abstract, women are more likely than men to sympathize with the accuser in a rape case is of no political consequence. But Durham County isn't normal in this regard. Stunningly (to me, anyway), the county has 79,546 female voters, as opposed to 60,087 males. (That's a female-to-male ratio of roughly 4:3.) As a local race, this contest had no exit polls, and perhaps the final vote contained no gender distinction. But it's doubtful that this gender breakdown hurt Nifong.

In short, if the accuser had never leveled her allegations, it seems reasonable to conclude that Nifong either would have lost to Freda Black, or a runoff would have occurred between Black and either Nifong or Bishop.

But if the case helped Nifong politically, does that imply that he operated from political motives? Something other than standard prosecutorial practice surely is required to explain Nifong's conduct: on Wednesday, even the News and Observer continued its drift away from viewing Nifong as acting in good faiith. In the second editorial in as many weeks expressing skepticism with the district attorney's tactics, the N&O reminded Nifong that "standards of fairness" require "a willingness by prosecutors to consider evidence that may tend to clear people who have come under suspicion," since a good prosecutor must keep "an open mind to all the evidence, which may prevent someone from being wrongly accused."

While Nifong is newly appointed to his office, he has worked as a prosecutor for nearly three decades. So it seems unlikely he could claim that he didn't know that state ethics guidelines prohibit prosecutors from making inflammatory statements during an investigation; or that he was unaware of state recommendations that photo ID arrays contain seven "fillers" for each suspect to minimize the chance of a flawed identification; or that he had never heard of the prohibition on prosecutors intentionally avoiding "pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused"; or that he didn't understand that prosecutors are supposed to give truthful affirmations to the court, not change their minds on how they will use DNA evidence if the test results contradict their preconceived notions.

There are, moreover, two decisions by Nifong that could not be explained as anything but politically motivated. First, after the first round of DNA tests—tests that he had promised would "immediately rule out any innocent persons"—came back negative, he publicly announced at predominantly African-American NCCU that he would bring charges anyway. Second, he sought indictments against Seligmann and Finnerty before the second round of DNA tests were complete—fully aware that if a rape had actually occurred, these DNA tests could implicate players other than the ones he had charged.

Despite such evidence, Ralph Luker has presented what seems to me the most compelling argument against political motives explaining Nifong's actions. In a recent comment about Nifong's inexplicable refusal to meet with the attorney for the third indicted player, Dave Evans, to discuss exculpatory evidence the defense possessed, Ralph noted, "Since Nifong has been re-nominated and faces no opposition in a general election, you cannot attribute his conduct of the case to his current political ambitions." In short, the district attorney seems just as intent on disregarding procedural regularity after the primary as he had been before the vote.

Chan Hall, at least, would be pleased.

[Originally posted in Cliopatria.]

Monday, May 15, 2006

Where's the AG?

North Carolina's attorney general is Democrat Roy Cooper; under the state's somewhat peculiar prosecutorial structure, he has authority to take control of the Duke lacrosse case away from Durham DA Mike (Ahab) Nifong. It seems as if the time has come for Cooper to act.

ABC reports that today Nifong has obtained an indictment against a third player, David Evans, in the Duke case, who was identified by the accuser with 90% certainty. The accuser also claimed that the player had a mustache. Yet the defense says that it possesses photos from the day of the attack and several days before showing that the player had no mustache. As Ralph has pointed out, the defense could be lying--but this claim isn't a terribly difficult one to verify. Nifong, of course, has not sought a subpeona for the photos, and there's no sign that he requested copies of the photos from defense lawyers. Evans' attorney told WRAL, "I tried to meet with the D.A. this morning, and he was unavailable."

More to the point is this item from the ABC report: "In a hallway confrontation today at the Durham County courthouse, Nifong laced into defense lawyer Kerry Sutton in an expletive-laden tirade where he complained angrily about last Friday's defense news conference." This is not the behavior of a normal prosecutor. Nifong--he of the 70 press appearances in the weeks following the alleged attack--has also recently demanded that the press stay off his floor in the DA's office, while, for reasons that remain unclear, delaying handing over promised material to the defense by at least 33 days, until mid-June.

It's possible that Nifong possesses heretofore unrevealed evidence showing that a rape occurred in this case. But there's no evidence that a district attorney who launches into a public "expletive-laden tirade" against one of the most prominent defense lawyers in his jurisdiction (and one who actually backed Nifong in the primary) is capable of serving the interests of justice. Cooper should act now.

Update, 6.21pm. Defense attornney Jeralyn Merritt posts the following: "This was the most compelling and believable public statement of denial I have ever heard. Dave Evans' parents should be so proud of him. If this accuser is lying, she must be held criminally liable for ruining these young mens' reputation. This has seemed to me to be a bogus case from day 1. If she lied, what a travesty for all of the team members and for true rape victims everywhere."

[Originally posted in Cliopatria.]

Saturday, May 13, 2006

DNA and Durham's Ahab

[Originally posted in Cliopatria.]

Flawed procedures often beget flawed results. The likelihood of the Duke lacrosse case confirming this maxim, indeed providing a record for future law students looking at how many procedural irregularities a prosecutor could commit in a single case, only continues to increase. In late April, Durham district attorney Mike Nifong requested that a court mandate all 46 white players on the Duke lacrosse team to give DNA samples. The filing cited the imperatives of clear-cut justice: “The DNA evidence requested will immediately rule out any innocent persons, and show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim.” A local court granted the order, even though Durham police appear to have made little effort to determine which of the 46 players even attended the party. Outside of Durham, people normally are not asked to give samples of their DNA based solely on their membership in a group.

Backlogs at DNA labs prevented the complete test results from arriving before his hotly contested May 2 primary, but Nifong indicted two players anyway—based on a photo array that ignored not one, but two, state guidelines. Yesterday, the final DNA tests arrived. They contained no match to either indicted player. (Since the attorney for one of the indicted players, Reade Seligmann, had released a time-stamped bank video showing Seligmann at an ATM machine at the time of the alleged rape, this news came as little surprise.) Given Nifong’s earlier assertion that DNA would “immediately rule out any innocent persons,” he might have struggled to get an indictment of Seligmann had he waited to present this evidence to the grand jury.

As to the other half of Nifong’s promise—that DNA would “show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim”—yesterday’s results yielded genetic material, obtained from a vaginal swab, from a single male source, proving that the accuser had sex before the rape exam occurred. But this DNA matched none of the 46 players. Instead, according to ABC News, it matched the accuser’s boyfriend. An AP wire story quotes Loyola Law School professor Stan Goldman, a frequent cable-news legal commentator, saying that this evidence should end the case, unless the district attorney possesses heretofore unrevealed testimony from an eyewitness to the alleged crime: “There has got to be some really good prosecution explanation as to why the DNA evidence does not exist and why someone else's would be there.” Since the accuser described a graphic and seemingly unprotected assault, it’s hard to see what this explanation would be.

But Goldman has probably underestimated Nifong, the Triangle’s equivalent of Ahab, searching for his version of the white whale—conviction of those he labeled “hooligans” in one of his 70-plus press appearances immediately following the alleged crime, appearances that seem to have violated North Carolina ethics guidelines regarding permissible public statements by prosecutors. Press reports from Raleigh suggest that Nifong plans to indict a third player, a resident of the house where the party occurred, on the grounds that DNA under one of the accuser’s fingernails, which were retrieved from the trash, might belong to the player. (There was no conclusive match one way or the other.) Given that the accuser claimed that her third attacker had a mustache (no players on the team had a mustache), a contradiction would seem to exist between the photo ID array used for the first two arrests and the justification for this arrest. But what’s one more contradiction in a case with so many?

Lest anyone think that he’s resting on his laurels with this new DNA evidence, Nifong showed otherwise. In what Chris Lawrence of Signifying Nothing termed perhaps “the clumsiest effort at witness intimidation since, well, the last time Mike Nifong threatened someone involved with the case with something,” Durham police arrested cab driver Moezeldin Elmostafa on a 2.5-year-old misdemeanor warrant. A few weeks ago, an affidavit from Elmostafa provided the first glimpse of Seligmann’s alibi (that he wasn’t at the house at the time of the alleged rape). This alibi subsequently has been confirmed by the ATM video, cellphone records, various receipts, and an affidavit from the other passenger in the cab, lacrosse player Rob Wellington. "The detective asked if I had anything new to say about the lacrosse case," the cabbie said. "When I said no, they took me to the magistrate." Next week, we'll see Wellington hauled in on the basis of a complaint filed against him when he was in kindergarden.

Perhaps the arrest of Elmostafa will prompt Duke’s Group of 88 to reconsider their approach to the case, which heretofore has consisted of a commitment to “turning up the volume” and offering a public “thank you” to protesters who distributed “wanted” posters with photos of the lacrosse players around campus and banged pots and pans outside the residence of lacrosse players while shouting, “Time to confess.” The Bowen/Chambers report somewhat embarrassingly explained the professors’ position as based on the institution’s need to balance the due process protections of (white, male) Duke student-athletes with the fact that "in the eyes of some faculty and others concerned with the intersecting issues of race, class, gender, and respect for people, the Athletic Department, and Duke more generally, just didn't seem to 'get it.'" Yet as Elmostafa is a working-class African-American, presumably these “concerned” Duke faculty would feel no need to rationalize away authorities’ peculiar treatment of him. I’ll be checking future editions of the Duke Chronicle for a new “Group of 88” ad, saying they’re “listening” to those “concerned” about Elmostafa’s treatment.

Nifong, meanwhile, is rapidly achieving the apparently unachievable: overseeing an investigation that brings to mind the worst conduct of both sides in the Lewinsky affair. Like Ken Starr in decisions such as subpoenaing secret service agents, Nifong is so convinced of the moral guilt of his targets that he’s taken actions (such as arresting the cab driver) that only make him seem like an out-of-control prosecutor. And like Bill Clinton’s infamous “it depends on what the meaning of the word 'is' is” remark, Nifong has shown himself capable of the most tortured legalisms when new evidence has contradicted his earlier assertions (as when, responding to the Seligmann material contradicting the “timeline” of the alleged rape affirmed in the warrant authorizing the search of Seligmann’s dorm room, the district attorney replied that critics “don’t know what my timeline is.”) Indeed, this case is unlike any I can ever recall, in that in normal cases, such tortured explanations following release of unimpeachable evidence almost always come from the defense, not from the prosecution.

Explaining away the DNA results, however, will require more creativity than even Starr or Clinton ever demonstrated. But no one should doubt that Durham’s Ahab will be up to task. Perhaps he can allege a series of typos and/or proofreading errors in his April filing to the court. So, for instance, when he wrote, “The DNA evidence requested will immediately rule out any innocent persons,” he can now claim, at least with regard to Seligmann, “The DNA evidence requested will immediately rule in any innocent persons.” And when he asserted that an exact DNA match would “show conclusive evidence as to who the suspect(s) are in the alleged violent attack upon this victim,” he can now hold that he really meant it would “show conclusive evidence as to who the suspect(s) are not in the alleged violent attack upon this victim.” After all, he’s short-circuited virtually every other procedure in this case thus far, so why worry about an after-the-fact reinterpretation of a court filing?

Wednesday, May 10, 2006

Farred Clips

Members of the faculty expect Duke students to meet high standards of performance and behavior. It is only appropriate, therefore, that the faculty adheres to comparably high standards in dealing with students . . . Students are fellow members of the university community, deserving of respect and consideration in their dealings with the faculty.

--Chapter Six, Duke Faculty Handbook

Even in an atmosphere of extreme and indefensible statements by members of Duke’s arts and sciences faculty, Literature professor Grant Farred has distinguished himself for his extreme and indefensible statements. The Group of 88 stalwart published what is arguably the most outrageous faculty op-ed of the entire case, denouncing the hundreds of Duke students who registered to vote in Durham as carriers of “secret racism.”

Farred, who currently has a visiting appointment at Williams College, recently gave a talk about the lacrosse case; EphBlog posted comprehensive notes on the talk, which were invaluable in making some sense of Farred’s often impenetrable prose. (An example: at one point, Farred spoke of “the wanton presence of the other; of the other who is not the other, of the other who is, who strikingly resembles—who is made to resemble—the self. The other who will not remain other. The other who is sometimes as myself, as other.”)

Farred’s basic thesis: the players were guilty, maybe not of rape, but of “white privilege,” and so Roy Cooper’s decision to pronounce them “innocent” was wrong. Meanwhile, the players were—according to Farred—perjurers who might have been guilty of a hate crime, and who are modern-day versions of old-time Southern racists.

Trivializing the American Past

“Cooper’s ‘innocent,’ then, reveals not a truly innocent,” maintained Farred. “These three players, an entire team, a team with an unsavory history. The history of the lacrosse team is the history of being inhospitable. The history of being bad neighbors to the Durham community. At the heart of the lacrosse team’s behavior is the racist history of the South.”

View the team’s behavior in the worst possible light, assuming every allegation about their pre-March 13 behavior to be true: they partied too much and too loudly, often using alcohol. This behavior might alienate the dorm neighbors of the 75 percent who live on campus. But these students were likely to be—in Farred’s parlance—white and privileged also. Those who lived off campus might have irked the residents of Trinity Park—also generally white and privileged.

Can a tenured professor at Duke seriously maintain that college students angering their (mostly white) neighbors through loud partying illustrates the “racist history of the South”? Such a claim is embarrassing and insulting.

Denying Reality

The findings of the Coleman Committee were clear: the lacrosse players were good students and good athletes, with a good record of community service. They had a strong bond with the women’s lacrosse team and no record of racist or sexist behavior. Many drank much too much—on a campus where hundreds of students drank much too much—but even here, their offenses tended to be minor, such as underage drinking or open container violations.

If the facts don’t fit preconceptions, Farred’s approach appears to be just to make up some new facts. In his Williams address, he cited the team’s “tendency toward misogyny and arrogant sexual prowess, especially if the fall 2006 Rolling Stone story is to be believed, proclivities that all have been complicated by race and racism.” That article, of course, is the Bible of the Group of 88: it is one of just two publications cited in the Campus Culture Initiative report, and was required reading in Anne Allison’s “Group of 88 for Credit” class this spring.

So, which is more credible: a comprehensive investigation undertaken by seven colleagues, interviewing dozens of named witnesses; or a widely panned article allegedly quoting four anonymous Duke students? Most people would say the former. Not Farred.

Reinventing History

“The Duke lacrosse program is indicted here,” Farred informed his Williams listeners, “not for what it did, on the night of the 13th of March, 2006, or for what its members did not do that night, but for its past behavior, a blemished past made even uglier.”

Really? That’s not what Farred and his colleagues in the Group of 88 were saying on April 6, 2006, when they took out their full-page ad in the Chronicle. Then, they spoke of the events of “March 13.” They talked about “what the police say or what the court decides.” They thanked protesters who similarly “indicted” the team for what the potbangers were certain occurred on the night of March 13th, protesters who carried “castrate” banners.

The Group’s statement, meanwhile, contained no mention that some lacrosse players had been cited for the “past behavior” of underage drinking.

But Farred is no longer talking about the Group of 88. In response to a question on the issue, Farred said that for “legal” reasons he could not discuss the ad.

Kim Roberts, J.D.

Farred quoted from Roberts’ exchange with a few players as the party dispersed. “Roberts called the players ‘short-dicked white boys.’ One player shouted, ‘We asked for whites, not niggers.’ ‘That’s a racial slur, a hate crime,’ Roberts responded. Does ‘innocent’ cover, and eviscerate from the law’s memory, hate crimes? Or do strippers not have equal protection under the law? Do hate crimes matter?”

Alas, despite Farred’s contention, Kim Roberts is not a jurist, and I know of no jurisdiction in which responding to a racial taunt with a racial slur is considered a “hate crime.” Even Mike Nifong didn’t make such an absurd suggestion.

Unsubstantiated Allegations

“It is precisely because the lacrosse event began before it began,” Farred bizarrely asserted, “that the intended announcement of ‘innocent’ invoked the haunting specter of something else: silence, injustice, guilt, perjury, indecision, evidence—sufficient or not. [emphasis added] There is a vast, darkened edge of innocence, a determination to forget—to make history, both in the immediate, and the long dureĆ©, not matter. The timing of the event, even and because it constitutes its own history, opens up into history and opens up history—the history of Southern racism, of educational indulgence.”

The evidence presented by Farred that the lacrosse players were guilty of “perjury”? None.

“To be declared innocent,” Farred fumed, “is to invent a history that is not the history of this particular event. What is the trajectory of innocence? [Unclear.] Innocent of bad judgment? Does the event demand, not only the responsibility . . .be assumed not only for that for which the accused is pronounced innocent, but also for that for which it appears the accused are no longer asked to stand to account. Those other transgressions are bad neighborliness, to racism, for perpetuating the history of Southern racism.”

The evidence presented by Farred that Reade Seligmann, Dave Evans, or Collin Finnerty ever did anything to suggest racist behavior? None.

Assault on the Law

“It is because the law knows that it cannot achieve foreclosure, because it cannot be cannot be the last word,” remarked Farred. “There is something terrible—a hidden hint of terror in the language of the law.”

Translation: Farred didn’t like Cooper’s decision. Therefore, the decision cannot be the final word on the case, and the law which rendered this decision must be in some way at fault.

Denigrating Reade Seligmann

“In the event of Duke lacrosse . . . it was the players, those now innocent, who refused foreclosure, specifically Reade Seligmann,” said Farred, mispronouncing Seligmann’s name. “I quote Seligmann, ‘If police officers and a district attorney can systematically railroad us with absolutely no evidence whatsoever, I can’t imagine what they would do to people who do not have the resources to defend themselves.’”

“Seligmann [the mispronunciation continued], in the act of being proclaimed innocent, in the act of being released, in the sovereignty of the law, by the law itself, intentionally turned the issue, the consequence of the law’s finding, to what it is conspicuous of the event: race, class, gender.” [emphasis in original]

Farred was just getting warmed up. The man who published a book declaring Houston Rockets center Yao Ming “the most profound threat to American empire” now contended that Seligmann (the mispronunciation continued)—the “perfect white self”—inserted “itself . . . into the location of the other. The self—the white, male self—in an act of rhetorical flourish, making common cause with the other. The white self speaking as, presumably, phantasmatically, the black other. The law, apparently, can make the self other, to itself.”

To Farred, Reade Seligmann is not an individual—and, indeed, cannot be an individual. He is a white male—no more, no less.


Farred concluded his remarks by linking the three falsely accused players with two prominent white men who made racist statements—Don Imus and Michael Richards. That none of the three players made any racist statements—and that no one apart from the utterly discredited Nifong and (sometimes) Mangum has ever accused the players of making any racist statements—appears not to have troubled Farred. After all, the three players represent “white privilege.” So they cannot be innocent.

“Cooper’s declaration of ‘innocent,’” proclaimed the Group of 88 stalwart, “will always be contaminated by something other than its imagined purity.”

Indeed it will be: by the remarks of people like Grant Farred.

Tuesday, May 09, 2006

Duke's Dueling Reports

During the height of the Vietnam War, Foreign Relations Committee chairman J. William Fulbright established a subcommittee, chaired by Missouri senator Stuart Symington, to examine U.S. commitments abroad. Commentators jokingly referred to the Symington Subcommittee as "the Foreign Relations Subcommittee for Oversight of the Armed Services Committee," since its real purpose seemed to be challenging the viewpoint of John Stennis' hawkish Armed Services Committee.

Duke's version of the Symington Subcommittee was the Bowen/Chambers Committee, which released its report last night. Ostensibly created to review the Duke administration's response to the lacrosse scandal, the committee seemed to view itself as a "Duke Committee for Oversight of the Coleman Committee," the body that examined the behavior of the men's lacrosse team. After an investigation governed by procedures quite unfavorable to the lacrosse players, that committee sharply rebuked the lacrosse team's culture of excessive alcohol use but also praised the team members' academic achievements, community service, and on-campus behavior. That message didn't go over well with some quarters of the Duke community, many of whom were interviewed by William G. Bowen, former president of Princeton University, and Julius Chambers, former chancellor of North Carolina Central University. The duo's report challenges many of the Coleman Committee report's conclusions, though without engaging any of its rival report's evidence.

On the topic at hand—the Duke administration's response—Bowen and Chambers issue a number of common-sense recommendations (more specific codes of conduct for athletes; re-examination of the relationship between on-campus and off-campus housing; a clearer organizational chart to make sure important information makes its way to top administrators more quickly and more hard questions are asked at an earlier stage).

They also particularly press a diversity personnel agenda that seems tangential to the issues at hand. (This is probably not surprising: Chambers is a longtime leader of the NAACP Legal Defense and Educational Fund, while Bowen is co-author of one of the most significant scholarly defenses of affirmative action.) Though claiming that "we are certainly not arguing for filling positions of any kind by applying a race-gender quota system," they effectively do just that, demanding creation of new positions that women or minorities are all but certain to fill. In assembling their own report, Bowen and Chambers added Duke alumna Daneille Carr Ramdath, a Mathematics Ph.D. who the report describes as an "African-American woman." (The report does not identify the race of either Bowen or Chambers.) Though Bowen and Chambers note that Carr "participated in almost all our interviews, kept her own notes, and helped in editing this report," only their signatures, not Carr's, appear on the final report.

Bowen and Chambers explain their emphasis on diversity by citing the fact that Duke administrators were too long unaware that the accuser was African-American. In today's New York Times, Paul H. Haagen, a Duke law professor and chairman of the Duke academic council, expressed puzzlement over this point, commenting, "I'm not sure that somehow or other we should have responded differently if it had been a white woman." Nor is it clear, if the Duke police didn't know the race of the accuser and therefore couldn't provide this information to higher-ups, how having more African-Americans in the high levels of the Duke administration would have made any difference in this case. Duke's upper adminnistration might (and probably does) need more diversity, but this specific episode seems like an unusual justification for the idea.

Bowen and Chambers recognize that the university appointed other committees to investigate the culture of the men's lacrosse team, Duke athletics, and the student judicial system, but they spend a good portion of their report on these issues—despite admitting that "in the time available," they couldn't speak to all the people they wanted regarding their original task. They did find time, however, to interview seven professors, including Karla Holloway and Houston Baker, signatories of the anti-lacrosse "listening" statement; and Peter Wood, who has joined Baker as the two most outspoken faculty critics of the lacrosse team. The committee did not explain why its faculty interviews were so heavily weighted toward extreme critics of the team, or why it interviewed this trio when it didn't have the time to speak to figures more relevant to its specific charge. As was the case in the Coleman Committee report, no team members were interviewed.

The direct points of disagreement between the Bowen/Chambers and Coleman Committee reports reflect poorly on the former's efforts. The first involves the complaints of Professor Wood. The Coleman Committee report acknowledged Wood as a high-profile critic of the lacrosse team. But it provided three damning contextual items. First, the report noted that Wood considerably expanded his claims about lacrosse players' behavior in his class between 2004, when the class occurred, and in recent interviews. Second, Wood's TA admitted that she couldn't cite even one instance of inappropriate classroom behavior to back up Wood's claims. (The best she could do was an assertion that they demonstrated "aggressive body language" that didn't affect other students.) Finally, the Coleman Committee interviewed nine other professors who had taught extensive numbers of lacrosse players; none had experiences even remotely resembling Wood's. In short, based on the evidence presented in the Coleman Committee report, Wood's comments about the lacrosse team are at best exaggerated and at worst not credible. Yet Bowen and Chambers accept Wood's critique without challenge: indeed, Wood is the only faculty member directly mentioned by name in their report.

Secondly, Bowen and Chambers strongly imply that Duke should have fired lacrosse coach Mike Pressler earlier, because of excessive underage drinking on the team; the duo (or perhaps trio, if we include Carr) strongly praise Pressler's forced resignation in the midst of the controversy. Yet the Coleman Committee report presents a far more complicated picture on this matter, largely faulting Duke's bureaucratic structure and overall administration tolerance of underage student drinking. It might be that, given all the negative publicity, Pressler was a necessary scapegoat; but based on the Coleman Committee's conclusions, it would be hard to term his dismissal "merited," as Bowen and Coleman do. There's a strong undercurrent of more general anti-athletics sentiment in the report; Bowen and Chambers seem to envision Duke redefining itself athletically, perhaps to become the "Davidson of the Triangle." (I'm sure most Duke alumni would love that.)

Beyond these matters, the Bowen/Chambers report provides a fascinating insight into a campus mindset that, to my knowledge, has not featured even one member of the Duke faculty publicly questioning the myriad procedural irregularities associated with the district attorney's dealings with Duke students. The problem, Bowen and Chambers reveal, was the need to balance the students' due process protections with the fact that "in the eyes of some faculty and others concerned with the intersecting issues of race, class, gender, and respect for people, the Athletic Department, and Duke more generally, just didn't seem to 'get it.'" As a result, these professors saw the lacrosse team as the "manifestation of a white, elitist arrogant sub-culture that was both indulged and self-indulgent." If the Coleman Committee report did nothing else, it wholly dispelled that image, yet Bowen and Chambers provide no mention of their colleagues' findings, no willingness to explore why a significant segment of the Duke faculty was, apparently, predisposed toward a highly negative and inaccurate view of more than 40 of its undergraduates—why, even, some faculty suggested that their own institution's students' "legal considerations" needed to be balanced against an immediate exploration of the "related issues" of race, class, and gender that they saw associated with the rape allegation. This astonishing finding should deeply trouble Duke president Richard Brodhead.

I suspect that the national media response to their effort has distressed Bowen and Chambers, since virtually all coverage has seized upon a new factual item that clashes starkly with the report's anti-lacrosse tone: that Durham police told their Duke counterparts the whole affair would "blow over" because the "accuser kept changing her story and was not credible"; she had initially asserted that 20 players on the team had raped her. It's possible, as Bowen and Chambers speculate, that the Durham police were intentionally lying, hoping to lull the Duke campus into a false sense of security. But if not, this item offers the first clue to another of this case's procedural oddities. Normally, police conduct an investigation, with the D.A. brought in to make determinations regarding arrests or indictments. In this case, however, Nifong oversaw the investigation almost from the start, and even, before it was completed, publicly proclaimed its results—the accuser was raped; three men committed the crime; the lacrosse players were "hooligans"; the guilty men committed the crime in a specific way (which he helpfully demonstrated in pre-election TV interviews). If Nifong has proved nothing else over the past two months, it has been that he considered unacceptable local authorities in any way doubting the accuser's version of events.

Apart from the diversity angle, Bowen and Chambers base their contention regarding Duke's tardy response to the situation on another factor: a Duke police officer reported seeing the accuser at the Duke Hospital "shaking, crying, and upset," which the report's authors considered a "description of behavior which doesn't suggest that the case was just likely to 'go away.'" That two prestigious academics can seriously assert that a campus administration should have considered word that the accuser was crying and upset (which, regardless of whether the claim was true or false, would certainly have been expected behavior) as more relevant than reports that the local police didn't find the accuser credible and that she had dramatically altered her story gives a sense of the odd intellectual environment in which the Bowen/Chambers report operates.

[Originally posted in Cliopatria]

Sunday, May 07, 2006

Paging Atticus Finch?

In his column this week, Jason Whitlock, a Kansas City Star writer who regularly appears on ESPN’s Sports Reporters, laments, “If the Duke lacrosse players were black and the accuser were white, everyone would easily see the similarities between this case and the alleged crimes that often left black men hanging from trees in the early 1900s.” Regardless of the truthfulness of the allegations—Whitlock reiterates that neither he nor anyone else now knows what happened—“this case seems like an updated re-enactment of To Kill a Mockingbird.” After detailing the many “uncomfortable" aspects of D.A. Mike Nifong’s investigation, Whitlock argues that the civil rights movement didn’t occur “so that the poor, black and oppressed could surrender the moral high ground and attempt to inflict injustice on the privileged,” and he fears that what is happening in Durham is “justifying a [white racist] mind-set that states: Do it to them because they’d do it to you.” He concludes by urging African-Americans in Durham to reverse course, and start “pressuring the authorities to pursue justice in the Duke lacrosse case regardless of where that pursuit leads.”

Whitlock’s words would have little effect on the likes of Duke Professor Houston Baker, a member of the Group of 88 last heard from demanding that all players on the Duke lacrosse team be expelled from school. Baker has resurfaced to dismiss the recent Coleman Committee investigation of the men’s lacrosse team. The report’s apparent fault? It failed to uncover evidence to support the professor’s previous portrayal of the team as the embodiment of “violent, white, male, athletic privilege.” Baker fumed that the report “says they are model academic citizens -- they've been on the honor roll. But there has been underage drinking. There has been bad behavior.” (The latter claims could probably apply to 80 percent of Duke’s undergrads.) The committee’s report is not “nothing, but it's as close as you can get to nothing.”

It’s worth remembering that the Coleman Committee operated under procedures almost wholly stacked against the lacrosse players: (1) Even though their behavior was being investigated, the players were not invited to testify; (2) Professors, staffers, and other Duke students were allowed to give testimony anonymously, with no representative of the players present to challenge, or even record, a witness’ version of events; (3) The committee’s charge came from an administration that certainly hasn’t bent over backwards to defend its own students. Perhaps, in writing their report, some committee members experienced a twinge of guilt as the abuses of Nifong’s investigation have become manifest, but there’s no evidence that this occurred. Nonetheless, the chair of the committee, Duke Law Professor James Coleman, former (Democratic) chief counsel of the House Ethics Committee, seems to have understood, as members of the Group of 88 have not, the importance of Duke appearing fair-minded in commenting about its own institution’s students. Baker apparently prefers Nifong’s investigating style, recently described by the Raleigh News and Observer as “disturbing” and not “open-minded.”

The investigation found that Duke has a culture of extensive underage consumption of alcohol; and that within that culture, members of the men’s lacrosse team as a whole, if not all of its members, fall at one extreme of that culture. The report also contains two previously unrevealed items: (1) When asked by the campus administration to help temper a high-profile case of the alcohol culture, the lacrosse team obliged—working to curtail Tailgate, a pre-football game drinking party--the lacrosse (and baseball) teams did exactly as asked; and (2) The immediate-after-incident image of a team “out of control,” ignoring warnings from the administration to cease “bad behavior,” or Nifong’s public portrayal of the team as “hooligans,” was false. Instead, the report describes an ineffective Duke bureaucratic structure where administrators responsible for monitoring excessive student alcohol assumption weren’t aggressive enough in making their concerns known. This is not unexpected. In a campus that suffers from an alcohol-excessive culture (which I doubt would surprise anyone who’s ever been to Durham), administrators singling out a few students risked triggering a campus-wide anti-alcohol campaign that might cause more harm than good. There’s no denying that most lacrosse players drank too much in social settings and some were arrogant in doing so; and I expect the Duke administration will use the findings of the Coleman Committee report to, appropriately, institute a new code of conduct that holds athletes to higher standards than other Duke students. Maybe it will even create the kind of campus environment envisioned in William Chafe's recent Chronicle essay, though I’m dubious.

Beyond the items on excessive alcohol consumption (where the context provided put the team’s behavior in a considerably more favorable light than known until that time), the Coleman Committee report—to Baker’s dismay—uncovered virtually nothing bad about the lacrosse players, despite a structure all but established to do so. There was, of course, the comment from a T.A.—two years after the fact—that the players sported “aggressive body language,” a convenient charge because of its vagueness and utter subjectivity. Not only did no other professor or T.A. who taught the players have anything resembling this recollection, but all had nothing but positive things to say about a team whose overall academic performance exceeded that of any other lacrosse team in the ACC, and, I suspect, a randomly selected cross-section of Duke students overall. Given the anti-athlete culture the controversy has revealed in some quarters of the Duke faculty, for all we know, the T.A.’s conception of “aggressive body language” consisted of nothing more than the players wearing lacrosse t-shirts to class. (She admitted that she could not cite a specific incident of “aggressive body language” in any way affecting the class.) Moreover, in terms of social relations, the committee found no evidence of sexist or racist behavior by the lacrosse players, despite a structure that granted anonymity without cross-examination to any and all who wanted to make such allegations. In fact, the committee uncovered copious evidence of commendable behavior, ranging from very high rates of community service to unfailing politeness to athletic staff.

Maybe, as the Duke Chronicle described the thrust of the Group of 88’s argument, Duke really is a bastion of “hate, racism, sexism and other forms of backward thinking.” But, if so, Baker and his colleagues should direct their protests to the Duke admissions staff, which, according to their version of reality, is admitting scores of flagrantly racist and sexist non-lacrosse players as Duke students.

Indeed, a striking subtext of this whole affair has been the open contempt in which faculty like the Group of 88 seem to hold many of their students, who (quite beyond whatever occurred in this incident) are guilty of being upper-middle or upper class; joining fraternities and sororities; participating in intercollegiate athletics; concentrating on their careers rather than the life of the mind; drinking too much; and holding ideas deemed inappropriate on issues relating to race, class, and gender. There’s nothing new in academics grousing about students. But at a school like Duke, save for a few superstars, faculty members derive some of their prestige from teaching at an extremely "selective" school. How strange it must be for people like Baker and other members of the Group of 88 to be surrounded by students whom they loathe, while depending on the “intake” of more of them for institutional status.

It might be, of course, that on May 15, Nifong will release a treasure trove of heretofore concealed evidence linking those he has indicted to a crime—in which case the central story will become the likelihood of his myriad procedural abuses preventing a conviction. Otherwise, columns like Jason Whitlock’s raise hope that the national consensus on this story has transformed to such an extent that local officials might return to respecting accepted legal procedures. There’s no chance, naturally, that Nifong will do so, just as there’s no chance that Houston Baker or most in the Group of 88 will abandon their preconceptions. But perhaps either the judge assigned to the case or the North Carolina attorney general’s office might take to heart words like Whitlock’s, or those of their hometown newspaper’s editorial board.

[Originally published in Cliopatria.]

Thursday, May 04, 2006

The News and Observer Weighs In

Though I'm a minority among Cliopatriarchs on this score, I continue to believe that a considerable difference exists between criticizing procedural improprieties in an investigaton and rushing to judgment on the facts of the case, or failing to urge authorities to respect the due process rights of your own institution's students, as the Group of 88 faculty did at Duke.

This morning's Raleigh News and Observer raises the point about procedure as well, in its lead editorial. The first paragraph:

When someone lodges an official complaint that he, or she, has been the victim of a crime, the police and other authorities within the justice system are expected to respond with resourcefulness and determination. Yet their methods are supposed to be controlled by standards of fairness.
The editorial reviews several "disturbing" procedural elements of the investigation; the editors might have elected to publish this article before the election.

An even stronger procedural critique than the News and Observer comes from Stuart Taylor, a columnist and senior writer at National Journal. His column in this week’s Journal lays in out in more dispassionate terms than I have managed the “evidence of gross prosecutorial misconduct” in the investigation by Durham DA Mike Nifong. (Taylor also chastises the Duke faculty for its silence in the wake of such procedural abuses.) Taylor’s piece ranges from the photo array, characterized as “so grotesquely suggestive and unreliable that one expert compares it to ‘a multiple-choice test with no wrong answers’,” to the district attorney’s having “rudely spurned repeated requests by defense lawyers for a chance to show him exculpatory evidence.” “Such conduct,” Taylor maintains, “is not usually seen as grounds for disbarment. It ought to be.”

Taylor carries considerable prestige in Washington: his mid-1990s column that Paula Jones had a viable legal claim (which, as events developed, proved true) was a turning point in the Clinton scandals, prompting far more serious consideration of a case that, except in far-right circles, had previously been dismissed as legally absurd. Hopefully his weighing in on Nifong’s actions will have a similar effect.

The article contains two details I hadn’t previously seen reported: the specific statement of the forensic sexual-assault nurse, which is far milder than has been portrayed and contains no mention of the word "rape"; and the specific context for the “cotton shirt” comment that Tim Burke wrote about a few weeks back. In combination with the findings of the Coleman Committee report, Taylor’s article also casts considerable doubt on allegations that other team members used racial epithets on the evening of the incident.

Taylor added that “for weeks, Nifong made numerous inflammatory and racially charged statements expressing certitude that there had been a rape and holding up the lacrosse players to condemnation as a bunch of ‘hooligans.’ (He has more recently declined interview requests. Through his legal assistant, Nifong repeatedly declined to respond to my questions for this article, drafts of which I e-mailed to his office.)” Indeed, Nifong’s penchant for inflammatory statements became a major issue in his campaign (as well as possibly violating state bar ethics guidelines), and he promised to cease making such comments. But having been safely re-elected, Nifong almost immediately reversed course and returned to the airwaves: in the last 24 hours, he conducted interviews. With WRAL, a local TV station in Raleigh, Nifong didn’t deny defense claims that he declined to meet with attorney Kirk Osborn after the indictment when Osborn wanted to present exculpatory evidence regarding his client.

With MSNBC, the DA showed that he has learned from his previous mistakes—as when he assured the court that the first round of DNA tests would “immediately rule out any innocent persons.” He no longer promises too much, and there’s nothing in his current comments that cross any ethical lines. Instead, he hints at damaging evidence to come. For all we know, he has troves of such evidence, though he’s struggled to deliver on previous promises. And I suspect we won’t see either the DA or most in the Duke faculty attempting to respond to Taylor’s devastating assessment of the procedures employed in the case thus far.

[Originally published in Cliopatria.]

Wednesday, May 03, 2006

Chafe E-Mail

On 5/3/06, KC Johnson <> wrote:
I'll add that note. As I've argued elsewhere, however, it seems to me that one part of any exploration of campus culture should be why so few members of the Duke faculty seemed willing to defend the due process of their own institution's students. I don't see calling for due process as making a statement one way or the other on the validity of the charges.

I might be hopelessly naive. And I'm under no illusions about the wealth and class status of most members of the lacrosse teams. But I think that professors have an obligation to speak up on behalf of fair procedure, even when it applies to a group that most might not like very much--


On 5/3/06, William H. Chafe < > wrote:

Thanks for sending this. It might have been helpful if you had pointed out that I specifically stated at th ebeginning I was not going to get into the brouhaha about the charges. My concern is with our campus culture, which is precisely what my article addressed. Any futher comment about the criminal charges, before a judicial process occurs, is simply buying into a media circus which I do not wish to do.

Quoting KC Johnson <>:

> Prof. Chafe,
> Since I was critical of aspects of your Chronicle article on the Cliopatria
> blog, I thought it would be proper to pass the link along--
> KC Johnson

Chafe Chimes In

This morning’s Chronicle features an opinion piece by William Chafe on conditions at Duke. I’m a great admirer of Chafe’s scholarship, which I’ve frequently used in my classes. So of all the signatures on the Group of 88’s statement, his disappointed me the most.

Many of Chafe’s current comments are common sense. He argues that based on the undisputed facts, the lacrosse team deserved “censure and disciplinary action”—which, of course, it received, in the form of a cancellation of the season, the forced resignation of the coach, and resumption of the program under restrictions, behavior-related penalties as draconian as virtually any in intercollegiate athletics over the past 15 years. Chafe urges Duke to adopt a stricter behavior code, to forbid things like students hiring strippers—a commendable idea, though probably one that’s not even needed at this stage. And he hopes for a university where alcohol plays a less significant role in students’ social lives, one “about celebrating the ‘playfulness’ and pleasure that infuse the process of debating intellectual and spiritual issues over extended lunches after class,” and “using some of our ‘party time’ to discuss the origins of the universe or existential ethics, even as we socialize at mixers.” I can’t imagine a single professor anywhere in the country would oppose this vision, and I hope Duke can achieve it. But I’m enough of a realist (and surely Chafe is as well) to know that progress along these lines will be fitful at best. Duke could make a healthy start by ensuring that all students live on-campus for all four years, as Chafe recommends, though I gather there are some practical limitations here revolving around space and town/gown tensions in the construction of new dorms.

Chafe’s article is most striking in what it fails to say. As, sadly, has become the pattern, Chafe apparently sees neither a professional nor a moral responsibility for Duke faculty to publicly demand that Durham authorities respect the due process rights of their own institution’s students. (In small progress, I suppose, at least he’s no longer saying “thank you” to student protesters who were proclaiming the lacrosse players “rapists” and chanting “time to confess.”) On police coming to campus dorms to question Duke students outside the presence of their counsel, Chafe says nothing. On local authorities conducting a photo lineup that included only Duke lacrosse players, thereby disregarding the state’s suggested guidelines, Chafe has no comment. Imagine the (wholly appropriate) likely faculty outrage if a prosecutor who needed white votes in an upcoming primary obtained a court order to get DNA, an extraordinary invasion of civil liberties, from dozens of black male students solely on the basis of their affiliation with a campus organization, before even attempting to determine whether these men were at the scene of the alleged crime. Yet on the DA’s decision to compel 46 Duke students to give a sample of their DNA solely on the basis of their membership in a group (and then deeming the results of those tests irrelevant when they didn't help his case), Chafe, again, is silent.

Chafe's attitude toward protecting the civil liberties of Duke students also appears in his demand for a policy that “any student group, on or off the campus, that promotes or engages in racial stereotyping is subject to disciplinary action.” Feminist, African-American, and gay rights groups have been known to engage in racial or gender stereotyping from time to time. Would they be subject to “disciplinary action”? How would this policy avoid the worst aspects of campus speech codes, which have similar aims? Chafe doesn’t say. Indeed, in a strictly technical sense, Chafe’s own article could be deemed guilty of “racial stereotyping.” He reports that “a student group at Duke—the lacrosse team . . . hurled racial epithets at black people.” Yet all we know for sure is that one (as yet unidentified) player, not 46 white members of “the lacrosse team,” did so.

It’s unfortunate that Chafe—as was done in the Group of 88’s statement—seems to interpret events through a preconceived lens, even when contrary evidence exists. “The events that we know took place,” he notes, “reflect underlying realities of student culture, at Duke and at American colleges and universities generally, that cry out for attention.” Chafe's article was written before release of the Coleman Committee report on the lacrosse team. After talking to 10 professors who had many lacrosse players in their classes, significant number of athletic staff of mixed races and genders, and members of the women’s lacrosse team who interacted with their male counterparts, the report did not find a pattern of (or even any evidence of) racist or sexist behavior by the team, suggesting that, other than excessive alcohol use, “the events that we know took place” didn’t reflect the underlying realities of the lacrosse players’ student culture.

Chafe concludes by placing great hope for the Campus Culture Committee—and, since it has two of the Group of 88 signatories as among its members, his confidence is probably justified. The apparent unwillingness of the Duke faculty to take a hard look of how it has responded to events since March 13 continues to disappoint.

Update, 5.15pm: Prof. Chafe emailed to note that, in the article, he specifically commented that "whether or not a sexual assault took place is something we will not know for months and is a task for the criminal-justice system to establish," and therefore it wouldn't have been appropriate for him to comment on such issues. As Cliopatria readers know, I disagree--first of all, because I don't see advocating for due process as taking a position one way or the other on the substance of the charges; and second, because Chafe's position essentially means that the "campus culture" initiative cannot explore the faculty's failure to call for duue process protections for Duke students, since the criminal case will be going on simultaneously to the campus culture initiative. By the way, the DA announced this afternoon that he doesn't expect the trial to occur until next spring--only raising further questions as to why he was in such a rush to secure an indictment.

[Originally published in Cliopatria.]