Where Are the Trustees?

In contemporary higher education, most trustees possess an almost pathological fear of “micromanaging” university affairs. A few groups, most notably ACTA, have resisted this unfortunate trend, recognizing that trustees often need to balance the most extreme voices among the faculty. Even passive trustees, however, have a clear fiduciary responsibility regarding their universities. And most consider preserving the reputation of the institution as among their tasks.

In an ideal world, individual Duke trustees would have spoken out forcefully to remind the public that irresponsible faculty members, such as the Group of 88, did not represent the institution’s values. (An extraordinary CUNY trustee, Jeffrey Wiesenfeld, serves as a model on such matters; so too do the insurgent trustees at Dartmouth.) But at the very least, Duke’s trustees should have acted to safeguard their institution’s reputation and long-term financial position.

But their recent selection of Richard Brodhead as Duke's newest president complicated how the Duke trustees have responded to the lacrosse affair. Picking a president is one of the few clear powers trustees possess—and so choosing Brodhead represented a defining moment for this board. Any aggressive action by the trustees would have constituted an implicit admission that they made a questionable pick in selecting Brodhead as president—even though he has proven unwilling or unable to constrain the worst elements among his faculty or to insist that local authorities respect the rights of Duke students.

Whatever the explanation for their past passivity, Duke’s trustees face at least three fronts that cry out for action now.

Future student recruitment. Brodhead has remained wholly silent as local authorities overrode a host of procedures in dealing with Duke students. The president need not have attested to the innocence of those Nifong had targeted. He had three opportunities to have taken the milder, and wholly appropriate, approach of demanding that local authorities follow their own rules when dealing with Duke students:

• when Nifong sent police to the Duke dorms before the first indictment;
• when Friends of Duke University made a public plea for him to take such a stand in an open letter;
• when Nifong requested keycard data on 43 Duke students who the district attorney had publicly deemed innocent of any crimes.

Duke’s passive response in the third instance is especially hard to comprehend. Via an extremely broad and vague subpoena, in June Nifong requested keycard data for the other lacrosse players—long after it had become apparent to any impartial observer that a pursuit of truth was not foremost on the district attorney’s agenda. This information is normally protected by FERPA, and it would have been perfectly reasonable for the University Counsel’s office to have filed an amicus brief supporting the (ultimately successful) efforts of the students to quash the subpoena. Instead, Duke remained strictly neutral—suggesting that the Brodhead administration saw no institutional interest in upholding FERPA protections from Nifong’s prying instincts.

This record creates an awkward, but necessary, question for the trustees to consider: 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 behaved as Brodhead’s has over recent months? If a parent has a choice to send their son to, say, Columbia or Duke, how could they possibly send him to Duke after seeing Brodhead’s weakness in this affair?

2.) Athletics, the Duke Culture, and Shared Governance. Trustees acting on broad academic matters often yield cries from faculty of the need to respect “shared governance.” Yet at Duke, the Group of 88 and other assorted professors, most notably Orin Starn and Peter Wood, have exploited the lacrosse controversy to build support for their campaign to transform Duke into a functional equivalent of Haverford. As Brodhead and the trustees have stood idly by, these rogue faculty members have claimed they should possess absolute power on campus, including the power to regulate intercollegiate athletics—traditionally not an arena assigned to faculty oversight—in an unprecedented fashion. In the process, they have made a mockery of the principle of “shared governance.”

A July N&O editorial by Starn summarized the basic position of the anti-athletics faculty:

Why do universities lower the admissions bar just because an applicant is good at hitting a ball or running fast? How can athletes hope to receive a well-rounded college education with such heavy team training and travel demands? Couldn’t the millions of dollars a year Duke hands out in athletics scholarships be better spent on scholarships for deserving candidates from minority and other underrepresented groups based on academic merit and other achievements?

The first two questions would be relevant if any evidence existed that Duke had lowered the bar to admit lacrosse players; or that lacrosse players performed poorly in class, and therefore didn’t seem to receive a “well-rounded college education.” Unfortunately for Starn and his allies, the findings of the Coleman Committee suggested the opposite, on both matters.

As to Starn’s third question, I’d be stunned if Duke already didn’t spend large amounts of money on “scholarships for deserving candidates from minority and other underrepresented groups.” Nearly every elite university does. But if Duke is currently miserly in its financial aid policies toward “deserving candidates from minority and other underrepresented groups,” it’s not clear to me how becoming a Durham version of Haverford will rectify that problem.

For better or worse, a first-class athletics program has been critical to Duke’s public image in the last 20 years. Stanford is the only other school to combine academic and athletic excellence in this way; Northwestern, Virginia, and UNC do so somewhat less successfully. Starn, Wood, and their allies have exploited the lacrosse affair to attack this legacy--even though there is little, or nothing, in this case that supports the specific criticisms Starn, et. al., have made against athletics.

Brodhead’s response on the matter? He seems to view his authority to set the moral tone of campus life as consisting of making Olympian pronouncements on the evils of rape, or of locating Shakespeare quotes to describe his personal trials. His refusal to aggressively defend athletics at Duke threatens Duke’s one clear advantage over the Ivies, an element of Duke life that is critical to student recruitment efforts—and, as anyone who watches the students at a Duke basketball game knows, we’re not just talking about recruitment of student-athletes.

Shared governance means just that—governance is supposed to be “shared,” with administrative matters, such as athletics policy, or fundraising, handled primarily by the administration. During the lacrosse affair, the faculty critics of athletics have presented no evidence to suggest that the one legitimate area of faculty concern (lowering admissions standards for athletes) applies in this case. Since Brodhead seems unwilling or unable to uphold the principle of shared governance against the Group of 88 and the Starn/Wood faction, the trustees must act.

3.) Future legal liability for Duke. Among the few offenses for which tenured faculty can be fired is harassing students. As time passes, more and more details are emerging about ugly actions by Duke faculty in the few weeks after the lacrosse case attracted media attention.

We already know that History professor Reeve Huston attacked the lacrosse team in his class; and that lacrosse player John Walsh received rude and clearly unprofessional treatment from one of his professors. It’s my understanding that History professor John H. Thompson sent an email to lacrosse players in his class in which he effectively transformed himself into an arm of the state. And, I have no doubt, there were more such instances.

How did Brodhead and the administration respond to this behavior? Initially, they appear to have done nothing. Then, when women’s lacrosse coach Kerstin Kimel complained about widespread unprofessional behavior by faculty, the dean of Trinity College sent a bland email. No evidence exists that Brodhead or any other Duke administrator did anything to check this behavior or to discipline faculty members who acted inappropriately.

Indeed, it appears that Brodhead never even ordered an inquiry into the matter. John Burness, senior vice president for public affairs and government relations, recently stated, “We did hear rumors early on, reports early on, that some faculty members were permitting a potentially hostile situation within a classroom environment.” He gave no indication that these “rumors” were investigated.

Imagine a counterfactual situation in which “rumors” existed that “some faculty members were permitting a potentially hostile situation within a classroom environment” toward gays and lesbians; or towards ethnic, religious, or racial minorities. It appears, alas, that enforcement of Duke’s “harassment” policy depends on the targets of the alleged “harassment.”

The message: widespread harassment by faculty members against students, on the basis of group membership, was occurring, with professors turning themselves into an arm of the state—and the administration did nothing. That’s not a position Duke should feel comfortable defending legally.

The Duke trustees appear to have based their response to this affair on one basic assumption: the case against the three students has some merit. In 99 of 100 occasions, this strategy would be correct. In this case, however, it has turned out to be horribly wrong. And so it’s time for the trustees to reconsider their passive approach.