Weighing the Scales

Few recent issues have generated more intense debate in higher education than David Horowitz’s “Academic Bill of Rights.” Horowitz has frequently cited public opinion polls to bolster his contentions about professors using their classrooms to indoctrinate students. He also has maintained that he seeks only to ensure more ideological balance among the nation’s faculty.

Led by the American Association of University Professors (AAUP), major academic organizations have furiously opposed the ABOR concept. They have suggested that academic quality can’t be measured by public opinion polls, nor should balance constitute an end unto itself. Surely, ABOR critics have reasoned, colleges and universities need not offer a pro-Nazi viewpoint in a class on the Holocaust, not should they spend time in an evolutionary biology course exploring creationism. However “balanced,” such results would be antithetical to the purpose of higher education.

In one of the lacrosse case’s many ironies, Duke president Richard Brodhead has channeled the arguments of David Horowitz to rationalize his institution’s behavior over the last six months. A recent article in the Chronicle revealed the administration’s satisfaction with a Duke-commissioned survey showing support for Brodhead’s policies (at least as those policies were described in the poll, questions for which weren’t released). In a July letter responding to Friends of Duke University, meanwhile, the president implied that his policies receiving “critical comments from a great variety of points of view, including diametrically opposite ones,” confirmed the wisdom of his approach.

Generating complaints from “diametrically opposite” sides represents an odd way of measuring a policy’s merit. In the early 1960s, for example, Duke’s administration doubtless received criticism from those with “diametrically opposite” viewpoints on how aggressively the campus should embrace civil rights. With the benefit of hindsight, Brodhead surely wouldn’t suggest that his predecessors’ moderate policies on civil rights represented the best possible option—even though they attracted concerns from “diametrically opposite” perspectives.

The president more overtly celebrated “balance” in his Chronicle interview, praising the “wide level of recognition that the University is taking this [affair] seriously and in a balanced way.” The Texas populist Jim Hightower once remarked, “There’s nothing in the middle of the road but a yellow line and dead armadillos.” Hightower’s quip recognized, if in exaggerated form, that on some issues, a “balanced” approach can be morally bankrupt. Indeed, many might contend that Hightower’s maxim should apply to events at Duke since March. After all, as Duke Law professor Erwin Chemerinsky agreed, no case in the last 15-20 years has featured this extent of procedurally irregular behavior that was publicly apparent by this stage of the process.

It might be fairer, however, to evaluate Brodhead on his own terms. Does any way exist in which the president could credibly assert that Duke has responded to the lacrosse affair “in a balanced way”?

1.) The president’s own remarks

Brodhead told Friends of Duke, “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.” Yet less than 2.5 percent of the words in either of Brodhead’s major public statements on the lacrosse case (April 5 and June 5) even remotely suggested that “it would be equally unjust to prejudge [the players’] guilt in the absence of proof and certainty.”

This rhetorical “imbalance”—to continue employing the president’s criterion—unsurprisingly led the media to portray Brodhead’s remarks as one-sided condemnations of his students. For instance, 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.” And what, exactly, did Seligmann do that was “bad enough”? He attended a team party that he played no role in organizing, and he drank some beer. If that is “bad enough” to merit widespread public condemnation and suspension from school, does Brodhead extend this standard to estimated 75-80 percent of students who consume alcohol and, I presume, occasionally attend a party?

2.) The work of the Campus Culture Initiative

Here, too, few signs of “balance” exist. The CCI has four subgroups, chaired by:

• Karla Holloway (race), who informed the Herald-Sun that she was a victim of the affair, since it has increased her committee work; and who recently suggested that for defenders of the players, “white innocence means black guilt” and “men’s innocence means women’s guilt,” since “innocence and guilt have been assessed through a metric of race and gender.”
• Peter Wood (athletics), who claimed, without substantiation, that a lacrosse player in his class advocated genocide against Native Americans; and who, after appearing to slander Reade Seligmann in a June article, has five times (most recently yesterday) refused to provide any evidence to corroborate his claims.
• Anne Allison (gender/sexuality), who, on April 6, joined Holloway and 86 colleagues in signing a statement saying “thank you” to protesters who had branded the lacrosse players “rapists” and had distributed around campus a “wanted” poster containing the players’ photos.

The head of the fourth subgroup, Phil Cook (alcohol), “balances” Holloway, Wood, and Allison only in that he has taken no public position on the lacrosse case.

As important, the CCI’s scope is inherently “imbalanced.” Like all other “investigations” announced by Brodhead in his April 5 speech, it avoids examining the most glaring aspect of Duke’s reaction to the lacrosse incident: that despite the academy’s traditional commitment to due process, procedural regularity, and dispassionate analysis of all available facts, in late March and early April and relying solely on Nifong’s version of events, dozens upon dozens of Duke professors rushed to publicly condemn the lacrosse players. All the while, they remained silent about the district attorney’s increasingly blatant procedural abuses. How can any examination of “campus culture” ignore exploring the causes and effects of this one-sided response?

3.) Overall faculty reaction

Since March 28, nearly 100 members of Duke’s arts and sciences faculty have publicly condemned the personal character of lacrosse players, in most cases solely on the basis of the players’ group identification. In that same time frame, zero members of Duke’s arts and sciences faculty have, in any way, publicly said anything positive about the personal character of even one member of the lacrosse team.

An extraordinary letter from a Duke alumnus spoke to this faculty imbalance. The letter termed “particularly painful . . . the degree to which members of the Duke faculty have labored to condemn the lacrosse team with what at times appears to be a cruel disregard for the likelihood that no rape occurred.” This case “shouldn’t be about identity politics; it should be about what did and did not happen.”

The alumnus concluded:

Two Duke students and one former student have been charged with extremely serious crimes they almost certainly did not commit. If they are indeed innocent, then they have been the victims of a horrible lie, a merciless media storm, and callous condemnation from the faculty at their own university . . . I have seen almost no expression of public concern for their wellbeing from anyone in the Duke administration or faculty. How can this be justified? If, and when, they are “proven innocent,” which is the standard President Brodhead has set for his support, will there be any regret for the one-sided condemnation? Or will exculpatory facts continue to be disregarded because they are relevant only in the courtroom and are not as powerful as “cultural facts”?

In a university reaction that Brodhead has described as “balanced,” who among the Duke arts and sciences faculty has called upon his or her colleagues to consider the letter-writer’s questions?

There is, alas, one way in which Brodhead’s policy has helped achieve “balance” in Durham. Over the past six months, we have learned that:

• When dealing with Durham residents, local authorities adhere to General Order 4077, which requires five filler photos per suspect and informing witnesses that a lineup might or might not include suspects; for “balance,” when dealing with Duke students, local authorities violate the order in multiple ways.
• When dealing with Durham residents, local authorities respect Rule 3.8(f) of the state bar’s ethics code, which orders prosecutors to “refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused”; for “balance,” when dealing with Duke students, local authorities ignore the rule.
• When dealing with Durham residents, local authorities follow Rule 3.8, comment 2, of the state bar’s ethics code, which holds that “a prosecutor should not intentionally avoid pursuit of evidence merely because he or she believes it will damage the prosecutor's case or aid the accused”; for balance, when dealing with Duke students, local authorities ignore the rule.

As John in Carolina noted yesterday, “Whatever any of us think of Durham’s DA Mike Nifong and Duke’s President Richard H. Brodhead, we can agree on this: neither man has said a single public word critical of the other.” Is this the type of balance that should define Brodhead’s presidency?