Tuesday, August 01, 2006

The Brodhead Files

It’s easy, if wholly appropriate, to criticize the Group of 88. Indeed, a recent parody imagines the look of their infamous “listening” ad/public denunciation had race/class/gender “groupthink” not dominated Duke’s faculty. That signatory Alex Rosenberg subsequently claimed that Group members fully understood that D.A. Mike Nifong was exploiting the case for political purposes but chose nonetheless to publicly denounce their own students renders the Group’s actions even more unconscionable.

Unlike the Group of 88, Duke president Richard Brodhead can’t be criticized for an initial rush-to-judgment attitude. But over the past few months, it’s become increasingly clear that Brodhead and the Group occupy the same ideological bubble. At best, the president has been closed-minded to new facts about the case, at the expense of his own school’s students. At worst, his performance should merit an aggressive review by Duke’s trustees once this crisis has ended.

The most recent addition to the Brodhead Files occurred with the president’s response to the recent open letter by Friends of Duke University. (Disclosure: I fully support this organization, and its website has posted links to my writings on the case.) As an FODU press release explained, the open letter “asked Duke to do four things: (i) speak up for its students; (ii) be fair to the lacrosse team and encourage others to do so as well; (iii) speak up for Duke; and (iv) accept the challenges presented by the lacrosse controversy.”

Brodhead’s response ignored the first and third of these issues; whitewashed his administration’s approach to the second; rationalized Duke’s wildly one-sided handling of the fourth; and distorted FODU’s requests.

“You chide the University for not supporting the players more aggressively,” wrote Brodhead, “but the University does not have direct access to the full truth of the case now any more than we did earlier, and we can't speak with certainty of matters that only the criminal justice system can resolve.” The assertion that “the university doesn’t have access to the full truth of the case now any more than we did earlier” [emphasis added] is hard to read with a straight face. In the case of Reade Seligmann, the president now has access to myriad exculpatory evidence, culminating with a videotape showing Seligmann at an ATM machine a mile away at the time of the alleged crime. Brodhead obviously does not believe that sexual assaults in Durham can occur when the alleged perpetrator is on videotape someplace else. Is he unaware of the video? If so, why?

Regardless, the FODU letter never asked the president to “speak with certainty of matters that only the criminal justice system can resolve.” The letter was carefully worded, and it seems unlikely that the president misunderstood it.

In terms of accepting the challenges posed by the lacrosse controversy, Brodhead told FODU he’s done as much as he’s going to do: “In my view, the way to heal this anguish is not to go back and endlessly debate things people should have done in the past. It's to move forward.” A correspondent pithily summarized the president’s message:

Duke erred in (i) not reigning in the lacrosse team earlier; (ii) campus culture "problems," (iii) not taking the alleged victim "seriously" enough because her race was not communicated far enough up the chain; and (iv) having a senior administration that was not diverse enough to appreciate the sensitivity of the situation. No mistakes on rushing to judgment. No mistakes on protecting the rights of students. No mistakes on allowing the media to dictate actions.

And, it appears, no intention to even consider such issues in the future. The Group of 88 couldn’t have asked for more.

The best summary of Brodhead’s “official” version of accepting the “challenges” posed by the controversy is the Robert Bliwire Duke Magazine article on a “spring of sorrows,” featured prominently on Duke’s lacrosse media page. In that story, Bliwire quoted from only one Duke student—an African-American male who, from all accounts, was not representative of student opinion as a whole. Bliwire quoted from four Duke faculty members—the three most outspoken opponents of the lacrosse team (Houston Baker, Orin Starn, and Peter Wood), and Professor Paul Haagen, who concluded the March 25 News&Observer profile of the accuser by opining on the increased likelihood of players from “helmet sports” committing violent crimes against women.

Brodhead dismissed claims of unfairness to the lacrosse team, noting in his response to FODU “it was a report the administration commissioned, the Coleman Report, that gave testimony to the positive dimensions of the lacrosse team's history.” To my knowledge, these words constitute the first time that Brodhead has publicly stated that the Coleman Committee report contained any positive information about the team—much less that while the report spelled out the team’s excessive alcohol-related offenses, it also provided evidence that the players were very strong students, consistently treated staff with dignity, had no record of sexism or racism with their fellow students or with staff, and had impressive community service participation.

In contrast to his comments to FODU, here’s how Brodhead described the Coleman Committee’s conclusions in his June statement to the university community:

Though it did not confirm the worst allegations against this team [which, it’s worth remembering, were that three players committed gang rape and dozens of others covered it up], the Coleman Committee documents a history of irresponsible conduct that this university cannot allow to continue.

The president’s remarks on June 5 contained no mention of the “positive dimensions of the lacrosse team’s history”—nothing on academics, on community service, on personal relations, on treatment of staff. This is the sole piece of evidence Brodhead cites to deny complicity in “scapegoating” the team?

In that same June statement, moreover, Brodhead expressed unsolicited praise for “Durham leaders” who were committed to pursuit of “truth and justice”—a seeming endorsement of Nifong. (Most people, I think, would consider the district attorney a “Durham leader.”) I asked Duke spokesperson John Burness if the president intended to praise Nifong. His response:

President Brodhead’s reference to Durham leaders in his 5 June communication to the Duke Community was related to those leaders from Durham with whom he has met on a number of occasions, including particularly Durham Mayor Bill Bell, NCCU Chancellor James Ammons, and leaders of the faith community in Durham. President Brodhead has not met with the District Attorney or anyone responsible for the investigation.

I’m grateful to Burness for the clarification. It nonetheless strikes me as unusual that a person as careful with his words as is Brodhead elected not to make clear at the time precisely to which “Durham leaders” he referred.

Brodhead’s administration seems intent, within the range of options available to it, on framing the players and the case against them as negatively as possible. Take, for instance, the university’s “Duke and Men’s Lacrosse” media coverage homepage. The Bliwire article—with its laughably one-sided sourcing and conclusions—receives the same amount of space on the page as information on the newly-hired lacrosse coach, and far more space than the links to committee reports. (Shouldn’t Duke want to encourage people to see the “positive dimensions of the lacrosse team’s history” in the Coleman Committee report, which the Bliwire article all but ignored?) Alone among linked publications, the Bliwire article features an associated photograph (an empty lacrosse goal) and is introduced with fonts of two different colors. The message seems to be: if you read only one item about the lacrosse controversy, read this piece.

The only other Duke author on the page is Donna Lisker, head of the Duke women’s center. Lisker’s column appeared in a publication called “Baldwin Scholars Newsletter.” Unlike the 31 other opinion pieces featured on both the media coverage homepage and the section of archived articles, this publication has no website. Duke evidently considered Lisker’s message of sufficient importance to upload the article onto the University website itself. Among other things, Lisker faulted a Rolling Stone article on campus social life for speaking only to students who “believed staunchly in the innocence of the accused men.”

So, the message from official university publications: it’s OK to be one-sided in speaking solely to campus critics of the lacrosse team, but not in speaking solely to those who believe in the players’ innocence.

The linked articles on the media homepage also displayed an unusual pattern. Last week, the preview section of opinion pieces (which contains three articles and a link to a more complete listing on a separate page) featured the Lisker article; a July 13 column by Marc Fisher that reflected the storyline as of about April 1; and Andrew Cohen’s piece on washingtonpost.com, which faulted the media for believing defense filings (backed, he neglected to mention, by copious documents) rather than Nifong’s (misleading, as it turned out) earlier public statements. As all three articles were critical of the lacrosse players or their legal case, and the Cohen article predated a published Washington Post column by Ruth Marcus expressing strong doubt that the case ever should have been brought, I asked Burness why the homepage was confined to opinion pieces critical of the lacrosse players or their case. He replied:

Regarding the posting of opinion articles, you’ve clearly jumped to an incorrect conclusion about the three articles that have been highlighted on Duke’s lacrosse website. You are correct, of course, and I appreciate your pointing out, that the Cohen column appeared one day earlier than the Marcus column. I’ve learned that our web editor posted these in a batch. He has subsequently reordered them to be more precise.

As Burness promised, the Marcus link replaced Cohen on the homepage. But the pattern of disproportionately hostile articles also appears in the “Archive of Opinion” page. By my count, six of the pieces included could be construed as favorable to the lacrosse players or their case; 10 unfavorable to them; and the rest either neutral or on tangential issues (the image of Durham, publishing amidst a crisis, etc.). Criteria for inclusion seems to be random, with only one common denominator: ensuring more negative than positive pieces.

For instance a number of articles in major publications favorable to, and in some cases highly favorable to, the players don't have links. This list includes, among others:

---Nicholas Kristof, "Jocks and Prejudice" (New York Times);

---Robert Zelnick, "Prisoner of a False Paradigm" (Guardian);

---Alan Hirsch, "Overzealous Prosecutors, Examine Yourselves" (L.A. Times);

---Jason Whitlock, "Justice Is Getting Lost in the Duke Case," (Kansas City Star);

---Kathleen Parker, "Breathing While White" (Orlando Sentinel);

---Sidney Zion, “At Duke, Innocent Until Assumed Guilty” New York Daily News.

The Duke site contains no links to the editorials in the Rocky Mount Telegram or the Winston-Salem Journal urging appointment of a special prosecutor, nor does it provide links to N&O editorials that criticized the D.A.’s misconduct. Two of N&O columnist Ruth Sheehan's early writings have links (her repulsive March 27 column and a later neutral piece), but there is no link to her subsequent de facto retraction, which urged appointment of a special prosecutor and was apologetic for her treatment of the players.

On-line versions of print publications aren't linked (for instance, Jeff Taylor’s "Low-Tech Lynching" in Reason Online)—except when they are, as in the link to Cohen's highly negative piece, which appeared only in washingtonpost.com. Blogs (which, for the most part, have been quite supportive of the players and their case, at least in the last couple of months) don't get links—except when they do, as in the link to BlueDevilNation blog. There's a link to a neutral piece in Duke Basketball Report but none to DBR's biting editorial, "The Law Is an Ass." Some outside college newspapers get linked (Chicago Maroon, in a neutral piece); others don't (such as the Cavalier Daily, which published an op-ed stoutly defending the players). Some higher education journals are covered (Chronicle of Higher Education); others (Inside Higher Ed) aren't. Former lacrosse player Randall Drain's opinion piece in the Duke Chronicle, which strongly criticized the administration, has no link, nor does (in the news section) Peter Applebome's fine piece about Reade Seligmann in the New York Times. Shouldn’t Duke have wanted to highlight Applebome’s article, since it challenged virtually all the stereotypes about the players?

The pattern appears on the law school faculty's "recent media coverage" page as well. This page features no links to Professor James Coleman's letter to the N&O calling for a special prosecutor, the N&O article discussing Coleman's position, or the recent Herald-Sun op-ed by Robinson Everett urging a speedy trial—even though a wide variety of articles by and about law school faculty, on all sorts of issues, are linked.

So, on the one hand, there appears to be a wholly random criteria for inclusion (i.e., even Kristof’s New York Times column received no link). On the other, the randomness consistently tilts in one direction—that is, to ensure that a visitor to the opinion page will receive links to more articles that present negative views about the players and their case than to articles that present positive views.

On another front regarding fairness in treating the team, Brodhead seems to be willfully naïve about what he can do as a university president. A wide array of options exists between, at one end of the spectrum, a Group of 88-style public denunciation and, at the other, a presidential announcement that the players are certainly innocent. The president, however, seems content to pretend that these extremes represent his only two alternatives in dealing with the lacrosse situation, and as both are unacceptable, he can do nothing.

As FODU spokesman Jason Trumpbour pointed out, a college president has the power to undertake informal, private actions—which to date Brodhead hasn’t done. Trumpbour told the Herald-Sun that "someone close" to Seligmann told the group in an e-mail that the same day Duke suspended him, "an Ivy League university called him to tell him how much they believed in him and wanted him to come to their university and play lacrosse,” while “the mother of another accused player told us that they had not received a single note, card or other expression of kindness from anyone in the Duke administration.” Brodhead wasn’t always so reticent about informal contact with the team or its representatives: I’ve heard that the president joined the lacrosse team on the flight to its participation in the 2005 Final Four.

Given this record, actions such as the Bliwire article; Brodhead’s framing his June 5 remarks about the lacrosse team as negatively as he possibly could; the continued presence of the Group of 88’s statement atop the official webpage of the African-American Studies program; and the apparent pattern of boosting the proportion of negative articles about the team and its case on the Duke website seem to form part of a pattern. And this pattern brings little favor to Duke.

The most troubling aspect of Brodhead’s recent behavior, however, came in his decision to ignore FODU’s request that he issue a public statement regarding the procedural abuses that have marred the case. As Trumpbour remarked, FODU wanted Duke to “express more publicly and emphatically its own desire that the players be treated fairly.”

As I’ve noted before, Nifong’s lineup procedure (confined to suspects only) violated not only Durham’s regulations but was wholly inconsistent with practices in contemporary North Carolina. Nifong’s refusal to meet with defense attorneys to consider exculpatory evidence before seeking indictments, and his decision to seek indictments before a second round of DNA tests came in (tests that were likely to reinforce the defense’s case), clearly violated Section 3.8 of the state ethics code. Nifong’s inflammatory public statements almost certainly violated the North Carolina Bar’s ethics code.

In a must-read post, La Shawn Barber looks behind, Nifong's recent non-apology apology, his public concession that his statements were improper. The state’s largest newspaper, the Charlotte Observer, yesterday responded by calling for a special prosecutor to replace Nifong, noting in an editorial, “District Attorney Nifong has delivered himself of this confession: He talked too much about the case early on. Well, no kidding. It was hard not to read something about Mr. Nifong’s characterization of the defendants as ‘hooligans’ who he was sure had committed rape.” (The Durham paper bizarrely praised Nifong for saying he still had confidence in his case.)

In short, a situation exists in which local authorities use different sets of procedures when investigating Durham residents and Duke students. (I’m assuming the Nifong Rules apply to all Duke students and not just white male Duke students; otherwise, the D.A. would be contradicting not only city procedures and statewide norms but risking a federal civil rights action.) This condition strikes me as an item that should trouble any university president.

Silence, in this case, implies consent. Does Brodhead consider it acceptable that a separate, and unequal, set of procedures exist in criminal investigations for Duke students? Are Duke parents similarly blasé? In the future, how likely will parents be to spend more than $40,000 on tuition, room, and board to send their children to an institution whose administration has accepted this dual-procedure system?

Brodhead’s record on due process matters, alas, extends beyond his silence. While ignoring FODU’s request that he speak out against the dual-procedure structure, the president did use the letter to discuss procedural matters. “We are eager,” he wrote, “for our students to be proved innocent” at trial.

This is an astonishing conception of due process. Brodhead isn’t a lawyer; his training came in English. But surely he understands—and, if not, his University Counsel does—that the purpose of a trial is not for the accused to “be proved innocent.” Brodhead’s remarks seem to confirm the thesis of Sidney Zion’s Daily News article, which posited that the players were “innocent until assumed guilty” by the administration and the Group of 88.

College presidents, obviously, receive no training on responding to the combination of a media firestorm and a renegade local prosecutor. Brodhead seems to have based his actions on one fundamental premise: the players were either guilty or a credible case existed against them. In 99 of 100 such academic crises, this approach would have made sense. But as evidence has mounted that this affair is the exception to the rule, Brodhead has proven unwilling (or unable) to adjust his strategy. The FODU letter gave him an opportunity to do so. That he rejected it is unfortunate for Duke as an institution, for its students, and, ultimately, for his tenure as president.

[Originally published in Cliopatria.]

No comments: