Dissembling

Duke president Richard Brodhead’s response to the open letter from the Friends of Duke University is a must-read, if only because it provides so much new information. For instance, Brodhead announces that he’s “eager for our students to be proved innocent” at trial. Duke’s new Vice President and General Counsel took office July 1, so perhaps she hasn’t had time to prep the president on principles of due process. After she does, hopefully Brodhead will realize that the purpose of a trial is not for the accused “to be proved innocent.”

The letter exemplifies a new phenomenon in Durham—Brodhead revisionism, by which the president has positioned himself as a die-hard defender of the players’ right to due process during the difficulties of last spring. He informed FODU “that those of us in positions of responsibility have acted as best we could to make two points: that what the players were accused of was, if true, a heinous act; and that it would be equally unjust to prejudge their guilt in the absence of proof and certainty. This dual message has been at the heart of virtually every public statement I have made on the case.” [emphasis added]

Really? On April 5, Brodhead made a 2,399-word public statement on the case. Reprinted below are paragraphs two through 5 of that statement:

Allegations against members of the Duke lacrosse team stemming from the party on the evening of March 13 have deeply troubled me and everyone else at this university and our surrounding city. We can’t be surprised at the outpouring of outrage. Rape is the substitution of raw power for love, brutality for tenderness, and dehumanization for intimacy. It is also the crudest assertion of inequality, a way to show that the strong are superior to the weak and can rightfully use them as the objects of their pleasure. When reports of racial abuse are added to the mix, the evil is compounded, reviving memories of the systematic racial oppression we had hoped to have left behind us.

If the allegations are verified, what happened would be a deep violation of fundamental ethical principles and among the most serious crimes known to the legal system. Such conduct is completely unacceptable both within the university and in our society at large. If the truth of the allegations is upheld, it will call for severe punishment from the courts and from Duke’s disciplinary system. This university has cooperated and will continue to cooperate to the fullest to speed the ongoing investigation by the police, and I pledge that Duke will respond with appropriate seriousness when the truth is established.

But it is clear that the acts the police are investigating are only part of the problem. This episode has touched off angers, fears, resentments, and suspicions that range far beyond this immediate cause. It has done so because the episode has brought to glaring visibility underlying issues that have been of concern on this campus and in this town for some time—issues that are not unique to Duke or Durham but that have been brought to the fore in our midst. They include concerns of women about sexual coercion and assault. They include concerns about the culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote. They include concerns about the survival of the legacy of racism, the most hateful feature American history has produced.

Compounding and intensifying these issues of race and gender, they include concerns about the deep structures of inequality in our society—inequalities of wealth, privilege, and opportunity (including educational opportunity), and the attitudes of superiority those inequalities breed. And they include concerns that, whether they intend to or not, universities like Duke participate in this inequality and supply a home for a culture of privilege. The objection of our East Campus neighbors was a reaction to an attitude of arrogant inconsiderateness that reached its peak in the alleged event but that had long preceded it. I know that to many in our community, this student behavior has seemed to be the face of Duke.

The only section of the letter that conceivably could be described as contending “that it would be equally unjust to prejudge [the players’] guilt in the absence of proof and certainty” is the following:

The criminal allegations against members of the team must continue to be investigated by the Durham police and we will continue to cooperate with that investigation to the fullest. Many have urged me to have Duke conduct its own inquiry into these charges. Frustrating though it is, Duke must defer its own investigation until the police inquiry is completed, first because the police have access to key witnesses, warrants, and information that we lack, and second because our concurrent questioning could create a risk of complications—for instance, charges of witness tampering—that could negatively affect the legal proceedings. I assure you, however, that the Duke disciplinary system will be brought to bear as soon as this can appropriately be done. Until that time, I urge us to be patient and remind ourselves that allegations have been made, the team has denied them, and we must wait until the authorities act before reaching any judgment in the criminal case.

One sentence—38 words, or 1.6 percent of the total statement—in an otherwise hostile paragraph, and even there, nothing resembling an unequivocal declaration deeming it “unjust to prejudge their guilt in the absence of proof and certainty.” As he isn’t trained in the law, neither is Brodhead a mathematician, but 1.6 percent does not constitute the “heart” of a letter that opened with a four-paragraph explication of how “what the players were accused of was, if true, a heinous act.” Can Brodhead seriously contend that at the “heart” of his April 5 statement was a “dual message” of condemning the allegations contained in the charges, if true, coupled with an assertion “that it would be equally unjust to prejudge [the players’] guilt in the absence of proof and certainty”?

On June 5, Brodhead produced a 2350-word public statement. Of those 2350 words, the 54 below could be said to reflect a claim that it is “unjust to prejudge [the players’] guilt in the absence of proof and certainty.”

As I have said, it’s essential that we allow the criminal justice system to run its course, and that we wait for the truth to be established before we reach final judgment. In the meanwhile, we need to remember that the American legal system is based on the principle of the presumption of innocence.

Those two sentences comprise 2.3 percent of the June 5 statement. Again, it’s hard to see how anyone could seriously contend that this 2.3 percent means the “heart” of Brodhead’s June 5 statement contained a “dual message” of condemning the players’ behavior, if true, coupled with an assertion “that it would be equally unjust to prejudge their guilt in the absence of proof and certainty.”

Adjectives in Brodhead statements, meanwhile, don’t seem consistent with considering it “equally unjust to prejudge their guilt in the absence of proof and certainty.” At various points, he labeled the lacrosse players “arrogant,” “dishonorable,” “disrespectful,” and “irresponsible”. He said their behavior was “heinous,” “highly inappropriate,” and “unacceptable,” and blasted the team’s “culture of privilege.” And when given an opportunity in his June 5 statement to balance these characterizations with the Coleman Committee’s revelation of the many positive things about the players’ academic, athletic, social, and community service performance, Brodhead pointedly declined to do so. His characterization of the players’ character remained exclusively negative.

Perhaps Brodhead’s single most inexcusable comment during this affair came in an appearance at a Durham Chamber of Commerce meeting on April 20, two days after the indictments of Reade Seligmann and Colin Finnerty. WRAL-TV quoted the president as saying, “If our students did what is alleged, it is appalling to the worst degree. If they didn’t do it, whatever they did is bad enough.”

This quote contains no mention of the unjustness of prejudging. But the statement itself, to borrow Brodhead’s phrase, “is bad enough.” Take the case of Reade Seligmann. There’s no longer any question that he “did what is alleged”: Seligmann is demonstrably innocent, on a videotape a mile away at the time of the alleged crime. Brodhead’s second sentence therefore, presumably would apply to Seligmann: “If they didn’t do it, whatever they did is bad enough.”

What, exactly, did Seligmann do? He attended a team party in which he played no role in organizing and drank some beer. That is “bad enough” to merit widespread public condemnation and suspension from school? If so, does Brodhead extend this standard to the other 6000-plus undergraduates at Duke? How many of this total would he consider “bad enough”? Twenty percent? One third? Half? The estimated 75-80 percent who consume alcohol? I’m sure that Duke parents would be alarmed to hear that Brodhead’s characterization could apply to their son or daughter.

Or was Brodhead claiming that Seligmann did something else besides drink and attend a party—“whatever they [Seligmann and Finnerty] did is bad enough.” If so, the president was “prejudging” Seligmann’s “guilt” for an ill-defined offense.

In short, Brodhead’s claim of a “dual message” in his public statements, in which he defended due process while condemning the acts if proved, is patently false:

• Defenses of the players’ due process rights and presumption of innocence formed miniscule portions—always less than 4 percent—of his public remarks.
• He never used the phrase “unjust to prejudge their guilt in the absence of proof and certainty,” or one of similar strength, on any occasion before the FODU letter.
• His April 20 condemnation of Seligmann and Finnerty—“if they didn’t do it, whatever they did is bad enough”—demonstrated appalling judgment.

Brodhead concluded his June 5 remarks by noting, “To make a mistake, to recognize it as such, and to take responsibility for making a change might be said to be the essence of education.” As he noted, people must “recognize” their mistakes before benefiting from the fruits of education. A president dissembling about the actual content of his public messages constitutes denial, not recognition. Is such a figure capable of leading a great institution of higher learning?