Dashing Due Process

It would seem indisputable that a major lesson of the lacrosse case is that due process matters. Surely, with all the talk of case-related events as a “teachable moment,” we would expect all parties at Duke to rededicate themselves to celebrating the importance of transparent procedures as the best way to achieve the truth.

This background makes all the more astonishing items in yesterday’s Chronicle from Elliot Wolf, the immediate past president of the Duke Student Government; and Wolf’s successor as DSG president, Paul Slattery. Their findings: in Wolf’s words, “Slowly but surely, [the Undergraduate Judicial Code has] transformed (at least, on paper) an objective, transparent and responsive system into one with little transparency, dubious checks and balances, no accountability to the student body and procedures bordering on incoherent—greatly extending its reach and expunging our rights in the process.”

Wolf and Slattery conducted a thorough comparison of both the 1999-2000 Duke judicial code to its present counterpart and the current Duke code to that of peer institutions. In an interview with Wolf, Dean Sue denied that any substantial changes had been made in the code. In an interview with the Chronicle, Stephen Bryan, associate dean of students and director of judicial affairs, appeared to state otherwise, but minimized the relevance of the changes. Said he, “There’s been a general movement to move away from the legalistic language because it is an impediment to the educational message. We want to develop citizens that are going to represent Duke in the future . . . In the real world, the costs are much greater.”

Can a Duke administrator credibly claim—as a general principle, even ignoring events of the last 18 months—that upholding due process conflicts with the University’s educational mission?

In the event, the evidence collected by Wolf and Slattery speaks for itself. One enormous change: in 1999, the accused student had the right to a public hearing. Now, all hearings are conducted in secret, regardless of the accused student’s wishes.

To take two more of the several examples that Wolf cites:

Probable Cause, 1999: Required to initiate a proceeding, and defined as “a reasonable likelihood for believing that the accused person committed the alleged act(s).”

Probable Cause, 2007: Not mentioned. Instead, “there must be sufficient information to believe that a policy violation may have occurred and that the alleged individual/group may be responsible” (emphasis added).

Right against Self-Incrimination, 1999: Explicitly granted, with “no inference of guilt.”

Right against Self-Incrimination, 2007: No longer enumerated, with statement that refusal to provide written response to charges violates the University’s policy against any “failure to comply with directions, requests, or orders of any university representative."

When Wolf asked Bryan for the rationale behind the changes, the dean strongly implied that the Duke judicial system rests on the presumption of guilt. Said Bryan, “We have [gone] from a system that was very legalistic and took the emphasis off of what our goals were to a system where [the administration says], ‘Listen, we’re in a community where we all make mistakes; we want to help you learn from those mistakes.’”

Does being charged suggest that a student has “made mistakes?” Bryan seems to think so.

Bryan also gave inconsistent statements about the right to silence. “A student’s cooperation in the process can only help them,” he told Wolf at one point. Yet later in the interview, he conceded that an accused student “should think through the potential ramifications of cooperating”—suggesting that a student’s cooperation could actually hurt them.

Slattery, meanwhile, compiled a chart laying out 71 elements of judicial procedure—which confirmed Wolf’s point in statistical terms. The 2007-2008 judicial code grants an accused student 15 of these rights; the code from eight years ago gave an accused student 25 rights. (Stanford was the most due process-friendly of the institutions Slattery examined, with 36 rights granted.)

Slattery perceptively noted the effects of the administration’s guilt-presuming posture: “The claim is that if you have procedural rights, the focus becomes ‘getting off’ and that stands in the way of the educational process of admitting that you’re guilty. Judicial Affairs shouldn’t have a self-contained educational mission. It should serve the overall educational mission by resolving conflicts and disincentivizing destruction or disruptive behavior.”

In its most basic form, the administration’s restrictions of rights suggest a failure to understand that procedural safeguards present the best path for determining the truth.

This is, its worth noting, the same administration that consented to the DPD’s “separate-but-equal” policy of punishing Duke students on the basis of their identity as Duke students more severely than all other Durham residents in cases involving minor crimes such as alcohol and noise violations. It’s also an administration whose president, in a July 2006 letter, affirmed that the purpose of a trial in the lacrosse case would be “for our students to be proved innocent.”

The failures of both the "separate-but-equal" policy and the presidential enunciation of a trial to prove innocence might have prompted the administration to rededicate itself to upholding Duke students’ procedural rights. Unfortunately, the Wolf/Slattery findings appear to dash such hopes.