Monday, November 21, 2011

“Students Are Not The Enemy of . . . Faculty Unless We Invite Them To Be”

The past few days appear to have launched “Hypocrisy Week.” First, the New York Times public editor turned to Wendy Murphy—Wendy Murphy!—for guidance on how journalists should cover sexual assault cases. Then, the Chronicle of Higher Education turned to Cathy Davidson—Cathy Davidson!—to deliver a plea about protecting students’ due process rights on campus.

During the lacrosse case, Davidson distinguished herself for her “revisionist” interpretation of the Group of 88 statement, which she displayed in a January 2007 N&O op-ed. In a bizarre inversion of reality, the Group member claimed that the period between March 24 and April 6, 2006—when Duke administrators, professors, some students, and “activists” regularly denounced the lacrosse players—in fact featured a Duke campus with widespread, boisterous defenses of lacrosse players coupled with racist attacks on black women. “It was,” fantasized she, “as if defending David Evans, Collin Finnerty and Reade Seligmann necessitated reverting to pernicious stereotypes about African-Americans, especially poor black women.” (In an e-mail circulated at the time, Davidson confessed that she penned the op-ed after consulting with a lawyer, and being informed that Group members could be vulnerable to civil suits.)

Davidson’s latest stab at commentary came in response to the pepper-spraying of peaceful protesters at UC-Davis—which today led to the suspension of the campus police chief. Cal-Davis deserves all the criticism that it gets for this incident, and I agree wholeheartedly with the remarks of FIRE’s Greg Lukianoff on the issue. Yet there’s something . . . peculiar . . . about seeing Cathy Davidson standing up for due process, given what was (at best) her indifference when three of her own institution’s students faced the highest-profile case of prosecutorial misconduct in recent U.S. history. It’s even more remarkable to see her pen an article entitled “A Plea to College Presidents: Exercise Your Moral Leadership,” given the failed “moral leadership” exhibited by her own institution’s president in the lacrosse case.

Davidson, however, appears unable or unwilling to detect her hypocrisy. “Students are not the enemy of administrators and faculty unless we invite them to be,” writes the Group member. If nothing else, the Group of 88 statement invited dozens of Duke students to recognize that some of the most outspoken faculty members on campus viewed them as the enemy.

The Davidson essay is notable for another matter relating to academic hypocrisy. Over the past several weeks, I’ve heard of troubling instances in which CUNY faculty members have brought the Occupy Wall Street protests into their classrooms, including at least two occasions of professors “encouraging” their students to actually attend the protests. Davidson seems to see little problematic with such conduct, noting approvingly that she has “heard from faculty and administrators who see the Occupy activities as appropriate for thoughtful conversation and debate across a numerous departments, whether economics or ethics.”

It would be interesting to see how many professors who see OWS as a “teachable moment” had a similar reaction to the Tea Party movement, which in many ways was OWS’ mirror image from 2009-10. (I rather doubt that Davidson had such a reaction, for instance.) From defenders of the academic status quo, we often hear (correctly, in my opinion) that the partisan affiliation of professors, in and of itself, is irrelevant to the quality of education. But that argument becomes much harder to sustain when professors so blatantly bring their political sympathies into the classroom.

“Students are not the enemy of administrators and faculty unless we invite them to be.” Cathy Davidson certainly knows of what she speaks.

The Times Again Shames Itself

The New York Times’ failure in covering the lacrosse case occurred on many levels. At the most basic level, of course, the paper’s handling of events could be blamed on the flawed and biased reporting of Duff Wilson, along with the fact-free “commentary” of Selena Roberts and Harvey Araton. At a second level, the paper’s record demonstrated a massive failure by the editors—from then-sports editor Tom Jolly upwards, to Bill Keller: once Wilson’s flaws had been exposed for the world to see, editors had no obligation to keep him on the story.

At a third level, however, the story represented a failure of the Times’ public editor, a position established in the wake of the Jayson Blair scandal to represent the readers and to champion journalistic integrity from within the paper. Then-public editor Byron Calame penned two columns on the lacrosse case. The first, which appeared in spring 2006, minimized even the factual inaccuracies that had marred Roberts’ early columns. The second, which came after the exonerations in spring 2007, denied any ideological bias to the Times coverage, and declined even to speculate on why the Times had gotten the story so wrong for so long. It was left to the AJR and the Chronicle to analyze the Times’ wreckage.

Yet even Calame’s poor performance can’t hold a candle to the most recent public editor’s column from Arthur Brisbane. The subject: how the paper should cover rape allegations. In formulating his suggested approach, Brisbane consulted with three people, each of whom was described as some form of victims’ advocate. One was Claudia Bayliff, project attorney for the National Judicial Education Program. A second was Marci Hamilton, a professor at Cardozo Law School.

The third was . . . Wendy Murphy.

That’s right. The public editor believes that reporters at the nation’s paper of record should take guidance on how to appropriately cover sexual assault cases from a figure who informed a national TV audience that she had “never, ever met a false rape claim”; and had, in her public statements about the highest profile sexual assault case of recent years:

  • asserted, without any evidence, that “there’s a very good chance there was a payoff” to false accuser Crystal Mangum and the second dancer, Kim Roberts;
  • implied, falsely, that the unreleased 1000+ pages of the discovery file, which contained Mangum’s psychological records and was sealed upon orders of the judge, might have contained “witness statements from the defendants’ friends—statements saying that a rape occurred just as [Mangum] described”;
  • fantasized, falsely, about the existence of “broomstick DNA” in the case;
  • reasoned that, contrary to North Carolina’s open-file discovery law, ex-DA Mike Nifong had a right to withhold evidence from the defense (one of the offenses for which he was eventually disbarred;
  • deemed Mangum’s ever-changing version of events as “minor inconsistencies”;
  • claimed, falsely, that President Brodhead had publicly asserted that “many” non-lacrosse players attended the party;
  • bet,” on national TV, that one of the falsely accused players was “molested as a child”;
  • made no fewer than 18 false statements in the first nine months of the case alone.

A while back, Salon’s Alex Pareene used Murphy’s career to suggest that “there are, in the mass media, absolutely no consequences for blatant, constant lying.” Public Editor Brisbane’s column, however, reveals something even more shameful: that the public editor of the nation’s most influential newspaper could consider such a figure suitable to provide guidance to journalists.

Friday, November 18, 2011

"Power Without Responsibility or Conscious"

[Update III, 3.47pm, Saturday: Two articles were posted on the N&O website earlier this afternoon. The first, by Joe Neff, notes that on Friday, Cline filed a 285-page(!) motion--described by Neff as "packed with passionate and personal attacks" against Judge Orlando Hudson--demanding the removal of Hudson from all Durham criminal cases. Cline further alleged a wide-ranging conspiracy to discredit her between Hudson, various Durham defense attorneys, and the N&O. The paper's executive editor, John Drescher, appropriately deemed the (unsubstantiated) allegation "crazy."

The second article, by Andrew Curliss, reveals that the State Bar has begun looking into Cline's behavior. Additionally, both Jim Coleman and former North Carolina chief justice Burley Mitchell sharply criticized Cline's behavior, noting that the issues raised by Cline--alleged errors by Hudson--would be handled through appeals, not by accusations of ethical misconduct. Of Cline's filing, Mitchell said, "I have never, never seen anything like it"; Coleman contended that "you don't discredit a judge in this intemperate way," adding that he was unaware of any comparable filing against a judge "in any context."

And, from the comments section, a reminder that in 2008, the Independent hailed Cline (whose J.D. comes from North Carolina Central, and whose B.A. comes from Livingstone College, in Salisbury, N.C.) as a "great attorney" who "could be an excellent role model for the young African Americans caught in the system." Those comments, by the way, came in an editorial in which the paper admitted that it was wrong to have endorsed Mike Nifong in 2006. How long will it be until Indy similarly retracts its praise of Cline?]

[Update II, 10.35pm: In an interview with WTVD-11, Jim Coleman notes, "This is as an extreme of a reaction by rulings of a court that I've ever seen, particularly because it's so personal. The basis for it appears to be rulings that can be reviewed on appeal and if the judge got it wrong, they can be reversed . . . There probably a lot of lawyers who had thoughts like this about judges, but I've never seen one actually put it in a pleading and filing it."]

[Update I, 12.40pm: Joe Neff tweets that the Cline filing was an "all out, one of a kind attack" on a judge. And I e-mailed Cline to ask why she didn't proofread her document before filing it; she did not respond.]

In a blockbuster article, the N&O’s Andrew Curliss revealed that embattled Durham County “minister of justice” Tracey Cline has filed a complaint with the North Carolina Judicial Standards Commission against Durham judge Orlando Hudson. Cline accused Hudson of acting with “BAD FAITH” (capitalization and emphasis in original) and deemed him guilty of “moral turpitude, dishonesty, and corruption.” The DA added that the existence of the complaint gives Judge Hudson a conflict of interest with the Durham DA’s office, and therefore he should hear no criminal cases until any ethics proceedings against him are completed.

In a rambling, 12-page document, Cline charged Hudson with having a vendetta based on her handling of the Derrick Allen case. She outlined her . . . reasoning . . . in this meandering sentence (grammatical and run-on errors all in original): “The District Attorney alleges, based upon information and belief, that this Honorable Court’s action of attempting to coerce the District Attorney into dismissing Allen and then for this Honorable Court to engaged in retaliatory conduct against the District Attorney and the District Attorney’s office after the District Attorney refused to dismiss that case are actions that constitute an improper or wrongful use of the power of this office by acting intentionally and with gross disregard for this conduct and in bad faith.”

Cline offered her “evidence” for Hudson’s alleged gross misconduct in three-and-a-half pages. She summarized what she saw as the basic facts of three cases (Yearwood, Dorman, and Allen) in which Hudson had ruled against her. Cline provided no new evidence to sustain her wild claims, most of which were thoroughly debunked in the N&O’s “Twisted Truth” series. Instead, she frequently resorted to citing unspecified, and unrevealed, “information and belief” (about her own cases!). Based on the arguments presented in her filing, virtually any high-profile ruling against a prosecutor could be deemed judicial misconduct.

The most striking aspect of the filing, however, came not in Cline’s decision to accuse a sitting judge of gross misconduct based largely on his having had the temerity to criticize her own unethical behavior. Rather, it was her decision to do so in a filing that appeared as if it were written by an ill-prepared high school student rather than a major county’s chief prosecutor.

A comedy of grammatical errors, the filing included numerous comma splices that (doubtless unintentionally) produced passages that differed from Cline’s desired meaning. Sometimes the DA seemed unable to write in complete sentences. (“Also a nurse saw the defendant looking at the deceased child’s vagina prior to there being any indication of sexual assault.” Or: “That the appellate courts have reviewed this case two times and each time did not overturn this conviction.” Or: “In that the agency was helping the family with counseling and trying to locate other family members.”) Mid-sentence, Cline frequently capitalized words (Game, Stayed, Interest) for no apparent reason. Occasionally, she ended sentences without periods. Sometimes, she used words Sarah Palin-style, as when she asserted that Hudson’s behavior “retards” confidence in the court’s application of the law.

Most embarrassingly, the filing was riddled with spelling mistakes. At one point, Cline referred to saliva as “salvia.” At another, she described the court system’s principles as the “principals” of the criminal court system. At still another, she feared that her rights were “striped away” by Hudson’s rulings. At yet another point, Cline charged that the legal system’s credibility was a “causality” of Hudson’s conduct. And consider this single-sentence paragraph, with the emphasis added: “This is power without responsibility or conscious.” Was Cline suggesting that Hudson had passed out while delivering his rulings?

Finally, ponder this borderline incoherent sentence, with which Cline began her introduction to the Yearwood case (run-on nature, lack of punctuation as in original): “Mother of 12 year old victim comes home at lunch hears her daughter scream out Mom help and goes to her bedroom to see her daughter crying, her panties torn on the floor, her dress torn and being held up trying to cover her body and the defendant is there buttoning his pants.”

In many circumstances—say, comments on a blog—there’s little, if any, expectation of the writer adhering to basic rules of grammar. But, in this instance, a sitting district attorney took the extraordinary step of registering a claim of ethical misconduct against a sitting judge. Yet this prosecutor, whose job includes the writing of legal briefs at the trial level*, couldn’t even take the time to have someone who knows how to write proofread her legal filing?

It should go without saying that, if removal proceedings aren’t already underway against Cline, this filing should force the State Bar to take a hard look at her fitness for office. As Curliss notes in his article, "Ethics rules for lawyers say they cannot 'engage in conduct intended to disrupt a tribunal' or engage in discourteous conduct 'degrading to a tribunal.' Ethics rules also require lawyers to bring actions based in law and fact, and that a lawyer cannot make a statement 'with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge.'"


Monday, November 14, 2011

Duke & Penn State

A couple of intriguing connections in the media coverage between the Penn State scandal and the Duke case crossed my desk in the past week.

The first comes in a well-done piece in the Chronicle of Higher Education on how the scandal might affect the university in the long term. The article contains the following passage:

It could be years before the legal case runs its course. In the meantime, the university needs to focus on the messages it presents to the world and figure out the right strategies to get those messages across, says John F. Burness, a visiting professor of public policy at Duke University, who was its chief spokesman during the 2006 lacrosse scandal.

"While Penn State is probably best known for its football program and iconic coach, it has a lot of academic quality across the board," he said. "In the long run, that won't be changed at all, and will very much help them get out of the current chasm they're in."

I suspect that Burness is correct, although at this stage I wouldn’t be confident in the prediction—in part because I’m not at all certain that Penn State has much of a reputation for “academic quality across the board,” in part because this affair has the potential to exact even more damage depending on how the civil lawsuits proceed.

That said, it’s worth using the Burness quote to note the difference between this scandal and that at Duke: at Penn St., there’s no evidence of any wrongdoing by any academic units. At Duke, by contrast, the scandal quickly called into question the “academic quality” of dozens of faculty members, who seemed unable or unwilling to unable to evaluate evidence that contradicted their preconceived race/class/gender worldview.


Late last week, the Patriot-News, the major newspaper in the Penn State area, also examined the issue of the potential damage to the long-term Penn State “brand.” The article featured extensive quotes and summaries of previous university episodes of bad publicity (Duke, Texas A&M, and Virginia Tech) from Terry Hartle, a vice president at the American Council on Education (ACE). The council describes itself as “the major coordinating body for all of the nation's higher education institutions, seeks to provide leadership and a unifying voice on higher education issues and to influence public policy through advocacy, research, and program initiatives.” Given the obsession with certain types of diversity in contemporary higher education, it’s not hard to determine ACE’s reflexive position on “diversity” issues.

Hartle was paraphrased in the following way:

In all three cases, the universities organized themselves to determine the root causes of the crisis put policies and procedures in place to ensure it never happens again and fairly quickly re-established credibility and confidence with various public audiences.

It’s difficult to determine what Hartle could have been talking about when he suggested that Duke had done anything that resembled reforming its policies or procedures to ensure that something like the university’s response to the lacrosse case never occurs again. The university, of course, has spent lots of money in legal fees and settlements—but those efforts have, in part, been undertaken to protect the rush-to-judgment contingent among the faculty.

The university reappointed its president, and retained the same faculty hiring patterns that appeared to foster the rush-to-judgment attitude. It doesn’t appear that even any of the faculty members were punished in any way for their dubious and in a few cases unethical conduct. Indeed, several Group of 88 members have been promoted to deanships. Duke consistently has avoided any kind of investigation into why the administration and faculty so disastrously rushed to judgment and abridged their students' rights—the episodes that prompted the university to settle out of court with the falsely accused players and remain at issue in the unindicted players' suit. If a lacrosse-like case emerged at Duke tomorrow, it's hard to imagine things would play out much differently at the university than they did in 2006.

While I know little of the Texas A&M case, Duke appears to be the anti-Virginia Tech. While VT undertook a full inquiry, and changed procedures to make sure that a student like the shooter never again fell through the cracks, Duke appears to have taken the reverse approach. But, of course, for a university convinced that it must do nothing to reduce the emphasis on "diversity" in hiring patterns or regarding curricular matters, Duke's response comes as little surprise.

I e-mailed Hartle to ask him what he was talking about in his comments regarding Duke. He did not reply.

Sunday, November 06, 2011

Assorted Legal Matters

The City of Durham has filed its final brief in its mid-case appeal to the 4th Circuit. I have analyzed the previous filings of the city and the falsely accused players; and the city’s appeal adds little to the exchange. The city’s attorneys—who according to the AP have already charged Durham more than $5 million for their services—continued to maintain that, when all was said and done, the city and its employees handled Crystal Mangum’s charges properly.

To reiterate, here is how Judge Beaty has responded to the Durham argument:

Defendants in this case essentially contend that this Court should take the most restrictive view of the applicable doctrines and should conclude that no provision of the Constitution has been violated, and that no redressable claim can be stated, when government officials intentionally fabricate evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.

Some of the city’s old favorites are back. The brief, for instance, feigns ignorance at Mike Nifong’s former title (which was, since the city's multi-million dollar attorneys appear to be unaware of it, District Attorney of Durham County). Instead, the city’s attorneys repeatedly term him “State Prosecutor” Nifong, as if his office instead was under the supervision of AG Roy Cooper. Durham’s lawyers also ignore Nifong’s role in supervising the police investigation. The brief also repeats the conventional Durham argument about the grand jury indictment all but requiring that the civil suit against the city be thrown out, regardless of the myriad instances of misconduct committed by DPD officers that had nothing to do with two officers' grand jury testimony.

The city attorneys do, however, employ three new arguments, though two don’t help them all that much. Responding to the falsely accused players’ attacks on the procedurally fraudulent “pick-any-three” photo array, the Durham brief maintains that “the only way that the arrays could become misleading at all would be if the prosecutor presented them to the grand jury without ensuring that the members fully understood the inherent limitations of the identification procedure used [emphasis added].”

But there’s absolutely no evidence that Nifong did present the photo array in this manner, and certainly nothing in Gottlieb’s description of his grand jury testimony suggests that Nifong acted to ensure that the grand jury “members fully understood the inherent limitations of the identification procedure used.” What evidence does the city’s brief present in this regard? “The officers ensured that the entire procedure was videotaped so that its inculpatory and exculpatory aspects could receive a full and fair vetting after the fact.” The brief makes no claim that the tape was presented to the grand jury, or that Nifong, Gottlieb, or Himan explained the ID process violated Durham’s lineup procedures. Therefore, by the city’s own argument, agents of the city (Gottlieb and/or Himan) deliberately presented “misleading” testimony to the grand jury. Why the city would have bothered to make such an admission is unclear.

Second, the Durham attorneys aggressively attempt to vindicate the performance of then-Cpl. David Addison, who functioned (according to press reports) as police spokesperson when the case first broke. According to the brief, the plaintiffs’ “allegations plausibly suggest only that Addison described the case to the public consistently with the way it was described to him by other officers.” In other words: Addison shouldn’t be legally vulnerable for having made false, malicious statements, because he was relying on false, malicious material provided to him by other police officers.

This argument, which reflects the case’s more general “Blame-Another-Defendant” strategy, at the very least would imply that discovery should continue forward, to determine which Durham employees fed the spokesperson this false and malicious material, which he then unthinkingly parroted to the local, state, and national media. Yet the Durham attorneys cite this version of events as an argument for why the case should be immediately terminated before any discovery occurs.

Finally, the city attorneys take direct aim at Beaty, by dismissing the claim that Americans possess a constitutional right not to be framed for a crime by government agents. Such an “argument carries no water,” according to the Durham attorneys, because it is excessively broad. Or, in Judge Beaty’s words, according to Durham, the Constitution does not give the average American a right against “government officials intentionally fabricat[ing] evidence to frame innocent citizens, even if the evidence is used to indict and arrest those citizens without probable cause.”

A procedural reminder: this appeal, which Judge Beaty granted despite the only on-point precedent coming from the Middle District of Alabama, involves the City’s attempt to have the case dismissed before any discovery occurs.


One reason, perhaps, for Durham’s aggressive attempt to overturn Judge Beaty’s decision came last week, when the Supreme Court considered a grand jury immunity case, Rehberg v. Paulk. The question posed by the Georgia case: “Whether a government official who acts as a complaining witness by presenting perjured testimony against an innocent citizen is entitled to absolute immunity from a Section 1983 claim for civil damages.” The case had quite a few similarities with events in Durham—the allegation was that a prosecutor’s investigator conspired with the prosecutor to frame an innocent defendant—though it had one critical distinction from the lacrosse case: the prosecutor in Rehberg did not appear to have formally served as the supervisor of the police investigation, as Nifong did.

Based on their general records (and the first two’s performance in the oral arguments), it seems extraordinarily unlikely that Justices Roberts, Alito, and Thomas would rule against the Georgia authorities. But the other six justices engaged in a wide-ranging and quite interesting discussion—asking challenging questions of both sides—of whether the immunity for grand jury testimony is proper. It’s dangerous to make any predictions based on oral arguments, but the Court’s four more liberal members, along with Justice Scalia, didn’t reject the plaintiff’s arguments out of hand.

In questioning the investigator’s attorney, Scalia, for instance, maintained that as the current structure (immunity for any behavior that’s testified about before the grand jury) perversely seems to invite a police officer to “get himself off the hook” is to “testify,” since “his testimony bathes him clean.” Justices Kagan and Ginsburg seemed particularly skeptical about the concept of letting an appearance before the grand jury provide a catch-all shield to guard against a civil lawsuit.

At Scotusblog, Timothy Coates concluded the following: “The Court’s questions indicate that this case may turn less on the niceties of the common law than the realities of common practice in the criminal courts. If the reality is that grand jury witnesses invariably engage in non-testimonial conduct prior to the proceeding itself –meeting with prosecutors, gathering evidence – that might spawn a malicious prosecution suit in which the subsequent testimony is admitted as evidence of malice, there seems to be little point in granting absolute immunity for such testimony, since erosion of grand jury secrecy and entanglement in litigation would occur in any event. On the other hand, if the Court concludes that potential liability for grand jury testimony may impair the day-to-day functioning of grand juries, and that there are practical differences between grand juries and warrant proceedings, then it could extend Briscoe’s rule of absolute immunity.”


One prosecutor who must thank her lucky stars about the concept of prosecutorial immunity is Nifong’s successor in position and ethics, Tracey Cline. The N&O reports that the attorney for David Yearwood, one of the defendants profiled in the paper’s “Twisted Truth” series, filed an appeal claiming that Cline withheld considerable exculpatory evidence in Yearwood’s case: "At worst, District Attorney Cline's conduct was deliberate and intentional. At best, District Attorney Cline's conduct was negligent and incompetent. Either way, it is her misconduct that brings us to the situation we face today." The attorney, Heather Rattelade, made clear toward which option she leaned, charging that Cline "engaged in deliberate and deceitful tactics to obtain a conviction at all costs."

As has been her wont, Cline responded to the filing not on the substance but by making wild charges—in this instance, by insinuating that either Rattelade or Durham judge Orlando Hudson(!) have committed a breach of legal ethics by leaking material to the N&O. She offered, of course, no evidence to corroborate her claim.

In the last three contested races for DA in Durham (2006 primary, 2006 general election, 2008 primary), a significant plurality of Durham voters demonstrated at best indifference to and at worst outright support for unethical behavior in the county’s chief prosecutor. So it seems unlikely that Cline will be removed at the ballot box. Will the State Bar act again?


The Herald-Sun brought news of a Durham resident who has, seemingly for the first time, alleged mistreatment from the Durham DA’s office. And who is the figure? Durham Committee for the Affairs of Black People-endorsed Solomon Burnette—the man who spent time in jail for robbing two Duke students, before distinguishing himself for penning an editorial that seemed to advocate vigilante justice against innocent white members of the Durham community.

In an interview with the H-S, Burnette claimed that he was innocent of a crime to which he pled no contest. The H-S didn’t provide a quote from either the DA’s office or from Burnette’s victims about his after-the-fact change of heart. The paper did, however, reveal that the endorsee had a criminal record that extended beyond robbery: “He also has been convicted of possession of marijuana, possession of stolen goods, operating a vehicle without a license, and common law forgery."

Defending his vigilante column—for which even the NCCU paper chose to apologize—Burnette wildly claimed, “Somebody had to say something . . . I think the article forced people to think in terms that we’re not used to thinking in.” This substance-free defense of indefensible statements recalls the non-defense defenses of their statement that came from the Group of 88.


Speaking of the Group of 88, one of their lower-profile figures made an appearance last week, in a high-profile case. Laura Edwards was one of 23 historians to sign an amicus brief in Gill v. OPM, a court case challenging Section 3 of DOMA. (Section 3 requires the federal government to treat all married same-sex couples as legal strangers under federal law.) To my knowledge, this filing was the first joint document on a legal matter that Edwards had signed since the Group statement in 2006, in which she and her fellow signatories asserted that something “happened” to false accuser Crystal Mangum; and the clarifying statement of 2007, in which she and her fellow signatories announced that they “appreciate[d] the efforts of those who used the attention the incident generated to raise issues of discrimination and violence,” the stated purpose of the potbangers’ “castrate” protest.

As a major civil rights challenge, Gill is the sort of case in which historians could make a contribution, partly because claims made by advocates of the law are historically shaky, partly because DOMA was all but historically unprecedented (the Supreme Court has sometimes taken a more skeptical view of laws that target minority groups and lack historical precedent). But it was remarkable to see a Group of 88 member—someone who proudly thumbed her nose at basic principles of due process in 2006 and 2007—boldly embracing due process in 2011. It would be a little like a longtime ACLU activist signing onto a brief defending Guantánamo Bay.

A charitable person might suggest that Prof. Edwards, having so massively misjudged the lacrosse case, has become unusually sensitive in its aftermath to violations of due process. A more cynical observer might conclude that Prof. Edwards’ concern with due process depends solely on the race, gender, or sexual orientation of the affected parties.


Finally, for the latest high-profile case involving college athletics—the arrest of a former Penn State defensive coordinator for widespread sexual abuse of young boys, and the arrest of the university’s AD for allegedly lying to the grand jury investigating the affair—Dan Wetzel’s column expresses my sentiments about the university's conduct more effectively than I could.

But one comment on media coverage of the case. In Sunday’s New York Times, Mark Viera (whose sports reporting I enjoy) wrote the following, regarding the record of Penn State football coach Joe Paterno: “A grand jury said that when Mr. Paterno learned of one allegation of abuse in 2002, he immediately reported it to Mr. Curley. The grand jury did not implicate Mr. Paterno in any wrongdoing, though it was unclear if he ever followed up on his initial conversation with Mr. Curley or tried to alert the authorities himself.

In fact, the grand jury report said something quite different. Here’s the relevant excerpt:

“Immediately,” it would seem to me, means immediately—not the next day. And given that the grand jury report—a report that lays out exactly who reported what, and when, to authorities—makes no mention of Paterno ever reporting the charges to authorities, saying that it’s “unclear” whether Paterno “tried to alert the authorities himself” strikes me as an unusually charitable interpretation of events.

In the lacrosse case, the Times failed because of bias—its editors and chief case reporter, Duff Wilson, embraced a narrative that implied it was the paper’s job to bend over backwards to prop up Nifong’s case. But the paper also failed because sports reporters too often are not sufficiently up to speed about basic legal procedure.

[Update, Monday, 11.23am: In today's Times, Viera has a follow-up story, containing a damning quote from the law school dean emeritus of Duquesne on Paterno's failed moral obligations in the case. The article no longer claims that Paterno immediately reported the allegations to his superiors. There also is no indication that PSU president Graham Spanier plans to resign as a result of the scandal. It seems hard to imagine he could stay on--but, then again, Richard Brodhead is still president of Duke.]

Wednesday, November 02, 2011


A few update items:

(1) Group of 88 extremist Grant Farred is back in the news, after the Cornell student government—with only one negative vote—passed a resolution (unsuccessfully) urging the Cornell administration to reconsider its decision to have Farred chair the Africana Studies Department’s search for a new department chair.

The genesis of the controversy was Farred’s 2010 decision to refer to two female African-American graduate students as “black bitches.” The chair of the student government’s Women’s Issues Committee, who sponsored the resolution, asserted that the appointment of Farred indicates that we don’t have the support of the University in reversing sexism on campus.” Note, of course, the presumption—asserted as unchallengeable fact—that “sexism on campus” at Cornell is so pervasive as to need to be reversed.

The co-director of Africana Studies, David Harris, dismissed concerns with Farred’s appointment, which he deemed an “administrative service” and which he—almost hilariously—implied gave Farred little power to shape the future direction of the department. (Harris is a 1997 Ph.D. with several book chapters and articles, but without a scholarly monograph. He has served as Cornell’s interim provost; his course list includes “Race and Policy”; “Research Seminar in Race and Ethnicity”; “The Demography of Race”; “Racial and Ethnic Identity”; “Introduction to Social Inequality”; “Elementary Statistics”; and “Race, Class, and Social Policy.”) Harris also denied that Farred’s role in chairing the search would make it harder for Cornell to recruit quality applicants. “We are a month away from deciding who we will bring in to interview and I have yet to hear people say [that] ‘I am concerned about coming here because of Grant,’” he said. “What I am hearing is that people are concerned about Cornell because of all the negative press … I think that has a much greater effect on our search.”

Harris’ statement confirms guidance I once received from a long-time mentor in the battle for academic freedom on campus: even in a campus dominated by the race/class/gender trinity, he reminded me, in the end, race trumps all. And certainly applicants to chair an Ivy League Africana Studies Department would recognize as much. So despite the oft-stated concern among the politically correct campus left with sexism, it seems entirely plausible that no applicants would have any trouble with Farred, despite his sexist statement—since, in the end, his status as a race-based demagogue is almost without parallel at Cornell.

And, not to belabor the obvious, it’s worth pointing out that no one at Cornell has even attempted to offer an explanation as to why the university would choose a figure who had slandered students at his previous university while deeming students from his current school “black bitches” to run such an important search.


(2) False accuser and accused murderer Crystal Mangum has been deemed mentally competent to stand trial—in some ways, a surprising ruling given the extent of her mental difficulties.

Additionally, the accused murderer’s request to reduce her bail was denied. Mangum, remarkably, had based her claim on a desire to see more of her children—the same children who were in the other room as she attempted to set fire to her previous boyfriend’s bathroom.


(3) Finally, a follow-up on Lubiano-Chafe student/Group of 88 apologist Melissa Harris-Parry, and her remarkable argument that as a practitioner of “black feminist scholarship,” she can rely on “experiential knowledge” as significantly as actual evidence in constructing arguments.

A point from her recent book provides a sense of how such “experiential knowledge” works in practice. Among Harris-Perry’s other claims was the following, about the origins of the Group of 88 statement: “Less than a year after Hurricane Katrina revealed patterns of festering racial inequality and prompted national conversations about black citizenship, these eighty-eight members of the Duke faculty chose to frame the lacrosse scandal as a disaster. In the long shadow of Hurricane Katrina, this choice is an important clue to the multiple meanings associated with the rape accusation. In this context,‘disaster’ evokes a sense of unequal vulnerability to supposedly neutral processes. The faculty members were drawing a link between the abandonment of black citizens in the aftermath of Katrina and the sense of vulnerability that many black men, white women, and especially black women felt on Duke's campus.”

As with Harris-Perry’s general interpretation of the Group and its critics, the Katrina-Group statement traces its roots to the unsubstantiated claims of former Africana Studies chairman Charlie Piot. And, of course, linking the Group’s statement to Katrina provides a way of removing some of the tarnish from the faculty’s actions: if the Group’s protest derived from the horrors of Katrina, it would seem, the Group should be seen as noble critics of an indifferent or even racist American state.

There is, of course, only one problem with Harris-Perry’s claim: there’s no actual evidence to link the Group’s statement with Katrina. In the 15 sentences from the Group’s statement that appeared in the faculty’s own words, no mention was made of Katrina. In the e-mail sent by the statement’s author, Wahneema Lubiano, soliciting membership in the Group, no mention was made of Katrina. In the alleged statements from anonymous alleged students quoted in the ad, no mention was made of Katrina.

But, of course, Harris-Perry doesn’t need “evidence” to advance her arguments. She is, after all, a practitioner of “black feminist scholarship.”