Upholding "Separate-but-Equal" Justice

On September 12, Captain Ed Sarvis of the Durham Police Department admitted that the Durham Police had an official policy of meting out disproportionate punishment Duke students, as a class, for alcohol- and noise-related offenses. When confronted with police records showing that Sgt. Mark Gottlieb had arrested 10 times as many Duke students as the other three District Two supervisors combined, Sarvis replied that the sergeant “was doing his job, and doing what I asked him to do.” The implication? The sergeants who didn’t handcuff and arrest Duke students (and only Duke students) for minor alcohol-related offenses weren’t doing their job.

Duke responded to Sarvis’ revelation without public protest. In her final column of the year, Kristin Butler noted that while Mike Nifong had, to date, not been held accountable for his actions,

Neither have the Durham police officers accused of disproportionately targeting Duke students for arrest and citations. This abuse, which was documented by The Chronicle in September 2006, extended well beyond the lacrosse players; rather, dozens of students were reportedly endangered, and the tales of police violence and inappropriate behavior point to ongoing, systematic abuse. Startlingly, we have no reason to believe that any Durham official has ever confronted or investigated these allegations, nor does it appear that the University has ever asked the city to do so.

Thanks to the efforts of the Duke Student Government, it now appears as if the Duke administration has effectively endorsed this “separate-but-equal” system of justice. In late March, outgoing DSG president Elliot Wolf penned a memorandum expressing concern that the Office of Judicial Affairs, led by Associate Dean of Students and Director of Judicial Affairs Stephen Bryan, had chosen to “pursue judicial action against a student based on evidence collected by law enforcement officers that was illegally obtained or otherwise insufficient to serve as the basis for criminal prosecution.” In other words, Bryan was intending to use evidence that even Durham’s blatantly pro-prosecution judges viewed as suspect.

Duke’s willingness to use such evidence, Wolf argued, undermined constitutional protections and effectively encouraged the DPD “to treat Duke students differently than other members of the community—something that is both antithetical to recent efforts to better integrate Duke students with the rest of the Durham community and, more importantly, unfair to students.” Moreover, Wolf contended that the use of constitutionally suspect evidence was “inconsistent with Duke’s mission of educating students about the importance of upholding the law.”

A few weeks ago, Bryan responded. He noted that the university “routinely” employs its disciplinary processes for offenses that may be “insufficient to serve as the basis for criminal prosecution.” Bryan continued: “Since one of the purposes of our disciplinary process is to help students process the difficult choices they could have made in a situation, it would be antithetical to that mission” to adopt Wolf’s suggestion. Indeed, Bryan reasoned, respecting constitutional principles would compel Duke to dismiss “a learning opportunity because of a technicality in how information was obtained.”

I suspect that the students profiled in the September Chronicle article on Sgt. Gottlieb’s dubious conduct would challenge Bryan’s peculiar conception of what constitutes a “learning opportunity.” Moreover, as Wolf observed, the University’s response to the question of off-campus drinking seemed more “rooted in a desire to pacify members of the community” than to “provide a ‘learning opportunity’ for the students involved.”

Bryan also defended the DPD’s work. “It seems unlikely,” he observed, “that there is a higher incentive for officers to cite students versus non-Duke students”—even though Sarvis had effectively said the opposite, months before. Apparently referring to Gottlieb, the Duke dean did concede that he had “heard anecdotally that students feel there is a particular Durham officer who unfairly targets students.”

This blasé response—the first in public by any Duke administrator regarding Gottlieb—was nothing short of extraordinary. Far from “anecdotal” evidence, both the N&O and the Chronicle produced statistical data documenting Gottlieb’s selective enforcement against Duke students.

Bryan did offer a solution to the problem: students who had complaints about Gottlieb could contact—of all people—Sarvis. In other words, Duke’s official position on the Gottlieb problem is that Duke students should get in touch with the very same Durham police captain who told the Herald-Sun that Gottlieb was “doing what I asked him to do.” How reassuring.

As Wolf recently observed, Bryan’s response “did not seem to indicate that Student Affairs will re-evaluate the ways it deals with information provided by DPD and the DA in response to [such] startling realizations” as the Attorney General’s denunciation of the Durham District Attorney as a “rogue prosecutor” and the assertion in the Baker/Chalmers report that much of the DPD’s handling of the lacrosse case was “typical.”

Such a response, Wolf correctly pointed out, bequeathed two separate sets of questions.

• First, “do the events of the past two years change anything about the relationship/collusion/cooperation between the University and the Durham Police Department and the Durham District Attorney? If so, how? If not, then why not?”

• Second, given that “the Durham Police and the Durham District Attorney have demonstrated a clearly prejudicial approach in their dealings with Duke Students,” what “is the University community, and particularly the University administration, going to do about it?”

I cannot recall another recent example of a university facing a situation where local prosecutors and police appear to have sanctioned violating procedures when dealing with students from that university and that university alone. (There is no sign that the DPD’s “separate-but-equal” policy applies to NCCU students, nor has Nifong’s office appeared to treat NCCU students unfairly.)

Yet the Brodhead administration would seem to have considerable leeway to act. Nifong is well on his way to disbarment. Few people are willing to defend the DPD in public after the Baker/Chalmers fiasco. Moreover, since many of the Trinity Park figures who initially demanded the crackdown on Duke students were the same people who championed (and in some cases participated in) the potbangers’ protests last spring, these people hardly have moral credibility to speak about any Duke-related issue at present.

Despite this favorable climate, the Bryan response suggests that the administration appears to believe that Duke students should trust the DPD and Nifong’s office to treat them fairly. The DSG’s approach, on the other hand, reflects the reality of recent events.

As Wolf concluded, the lacrosse case “demonstrated the drastic consequences that can fall upon both students and the institution if rights are not respected and proper procedures are not followed—two things that we feel Judicial Affairs’ current practices contribute to. The institution should recognize that Lacrosse upended university prerogatives with respect to student rights; Mike Nifong and DPD investigators’ erroneous pursuit of the Lacrosse Case caused the University far more of a headache than a few neighbors in Trinity Park calling for Duke to engage in ‘neighborhood stabilization.’”

“Separate-but-equal” systems of justice are all but certain to lead to abuses, as we have seen in Durham over the past 18 months. Rectifying the situation, to borrow a phrase, provides a “learning opportunity” for the administration. President Brodhead and his advisors should seize the chance to act.