Updates

Two follow-ups on recent posts.

First, an interesting column in the Chronicle from Andrew Beaton, reflecting on the Duke lacrosse team’s recent national championship victory over Syracuse. Speaking to both current coach John Danowski and two of the team’s star players, Beaton learned that from recruiting to current media coverage, the legacy of 2006-7 remains.

“The scandal may never go away,” wrote Beaton, “and it may always be among the first few results for ‘Duke lacrosse’ in a Google search. (Even after Monday’s 16-10 national championship win against Syracuse, it’s in the top three). And it’s a shame that a set of lies, a district attorney’s ambitions and presumptions of guilt have made it that way.”

Current Duke students who solely read the Chronicle must have been puzzled, however, by Beaton’s final sentence. A “set of lies”? A “district attorney’s ambitions”? “Presumption of guilt”—including from dozens of faculty on campus, amplified by a president too cowardly to stand up for due process?

Isn’t this the same paper that only a few months ago informed readers that the legacy of the lacrosse case was “a stifling effect on our administration” leading to “the administration’s ability to comment on Duke’s social culture”? The “enduring narrative” of the case was not, according to the authors of this unsigned editorial, a “presumption of guilt” by those who ran the school, but instead “of rowdy, belligerent parties—with sexist and racist overtones—and the entitled students who attend them.”

Perhaps the authors of that unsigned editorial might want to take a look at Beaton’s column. I should note that the column’s title—that Coach Danowski changed the “meaning” of Duke lacrosse is far more reflective of the “enduring narrative” editorial than of Beaton’s column itself.

--------------

Second, regarding the North Carolina “right to counsel” I bloggedabout below. Given the current state of affairs on college campuses, action from state legislatures to ensure due process in campus disciplinary procedures is about the only chance for reform. The likelihood that colleges themselves will enhance due process is about as high as Michelle Bachmann being chosen next year’s commencement speaker at Harvard.

The original House bill could, and should, serve as a model for other states to follow—a clear, unequivocal assertion that accused students have the right to a lawyer. It’s my hope that as the measure moves through the Senate, there will be greater clarity provided to at least one of the House modifications—namely, the provision adding “non-attorney advocate” to the bill. (“Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.”)

Since all universities currently ensure “non-attorney advocates”—a toothless position—the bill’s effects would be meaningless. If, however, the bill is clarified to ensure that the student should have the choice between a lawyer and a non-attorney advocate, then the bill’s promise of a right to counsel could be significant indeed.

One other item from the bill, which fortunately was not modified by the House. The bill calls for a “licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation.” One key element of the “Dear Colleague” letter (and changes demanded by “activists” at Stanford, Yale, and elsewhere as those schools have modified their campus disciplinary processes) has been significant structural restrictions on the process itself—severe limitations on the ability of accused students (or their “advocates”) to cross-examine witnesses, or to receive evidence in a timely fashion, or to present evidence of their innocence.

A legislative commitment to full participation might remedy some of those problems—but only, again, if the full participation came from an attorney, not a university-approved “non-attorney advocate.”

We’ll see what the Senate does.

In North Carolina's "Right to Counsel" Bill, Far Less Than Meets the Eye

The “Dear Colleague” letter (about which I’ve frequently written over at MTC) featured a three-pronged assault on the due process rights of college students accused of sexual assault. First, it ordered colleges to adjudicate such matters through a “preponderance of evidence” (50.01%) standard, thereby dramatically increasing the likelihood that innocent students will be branded rapists by their schools. Second, it forced colleges to institute a double jeopardy scheme that allows accusers to appeal not-guilty findings even under the reduced threshold. Finally, it strongly encouraged colleges to deny accused students the right to cross-examine their accusers—even though in claims of acquaintance rape, the accuser might be the only witness against the accused.

As hostile to due process as the “Dear Colleague” scheme is, however, the document at the very least didn’t explicitly deny the right of accused students to be represented by counsel in disciplinary proceedings. A cynic might say the letter didn’t have to issue such a mandate, since most colleges already bar lawyers from their disciplinary processes.

This oversight, however, provides an opening (at least at public universities) for state legislatures to restore some semblance of due process for students accused of sexual misconduct. Nothing in the “Dear Colleague” letter prevents state legislatures from passing laws ordering public universities to let accused students have full, robust legal representation. And given the sudden, bipartisan interest in due process amidst the IRS and AP subpoena “scandals,” the political environment is unusually suitable for politicians to act.

In April, seeking to safeguard student rights on campus, four North Carolina state representatives (Republicans John Bell and Jonathan Jordan, Democrats Rick Glazier and Nathan Baskerville,) served as lead sponsors for a measure called the Students & Administration Equality Act.

The bill contained only one clause, entitled “Student disciplinary proceedings – student’s right to counsel,” and provided a much-needed reform on behalf of due process. It held that “any student enrolled at a constituent institution or student organization at a constituent institution that is accused of a violation of the disciplinary or conduct rules of the constituent institution and that wants legal representation may be represented by an attorney during any formal stage of any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the charge of misconduct against the student or student organization.”

The bill was referred to the House Education Committee, where it languished for a month. Last week, it was withdrawn from the committee and referred instead to the Rules Committee, which substantially rewrote the bill. Though still promising a “right to counsel for students and organizations” in disciplinary proceedings, the measure actually does no such thing.

Here’s the new text, with the relevant sections gutting due process in bold:

“Any student enrolled at a constituent institution who is accused of a violation of the disciplinary or conduct rules of the constituent institution shall have the right to be represented by a licensed attorney or non-attorney advocate who may fully participate during any disciplinary procedure or other procedure adopted and used by the constituent institution regarding the alleged violation. However, a student shall not have the right to be represented by a licensed attorney or non-attorney advocate in either of the following circumstances:

(1) If the constituent institution has implemented a ‘Student Honor Court’ which is fully staffed by students to address such violations.

(2) For any allegation of ‘academic dishonesty’ as defined by the constituent institution.”

The amendments to the bill have so altered the original measure to render it meaningless.

First, the bill no longer provides a “right to counsel,” at least as the word is commonly understood (an attorney). Instead, the bill requires colleges to allow students to be represented by an attorney or by a “non-attorney advocate.” In short, all the bill envisions is codifying the ways in which universities give a phony sense of due process by suggesting that an “advocate” (a faculty member, a fellow student, even a family member) can safeguard a student’s rights even if lawyers are excluded from the disciplinary proceedings. Despite the now-misleading title, no student facing charges before a college disciplinary tribunal in North Carolina will gain the “right to counsel” if the amended bill passes.

Second, even the gutted “right to counsel” doesn’t apply if the school “has implemented a ‘Student Honor Court’ which is fully staffed by students to address such violations.” This provision, if construed broadly, would seem to exempt every disciplinary proceeding at a North Carolina public university except for one—the University of North Carolina’s recently-adopted sexual misconduct procedure, one of the earliest responses to the “Dear Colleague” letter. (UNC formally set up a two-tier system of campus justice in which students accused of sexual assault would both be judged by a lower standard than students accused of other offenses on campus, and would have their cases heard not by students but by a specially “trained” panel of . . . sensitive . . . administrators and students.)

Even at UNC, however, the law wouldn’t require students accused of sexual misconduct to be represented by a lawyer, only by a “non-attorney advocate.” And that “right” already exists: an accused student receives an “advisor”to assist “with pre-hearing procedures and the presentation of witnesses and evidence at the hearing or at any subsequent proceedings. Only currently enrolled students or employed staff members of the University shall serve as advisors to the parties.” And that “advisor”—or “non-attorney advocate,” in the bill’s language—can’t do much once the hearing begins, since a student accused of sexual assault, or his “advisor,” “shall not have the right to question another party; however, each party may submit proposed questions to the panel for panel members to ask of the other party if the panel members determine, in their sole discretion, that the proposed questions are designed to elicit relevant information.”

To review: the amended bill won’t provide any accused student in North Carolina a right to counsel; it won’t even apply to most disciplinary processes at North Carolina’s public colleges and universities; and it will have no effect on the one procedure (UNC’s new sexual assault standards) to which it clearly would apply.

Last week, the North Carolina House of Representatives passed the bill by a margin of 112-1, with only Wake County Republican Jim Fulghum voting no. The measure currently awaits action in the Senate.

The upper chamber should reject the bill, and if the bill passes, Governor McCrory should veto it. Not only is the measure, as currently constituted, meaningless, a strong case could be made that the bill is harmful, because it creates the false impression that a “right to counsel” exists when, in fact, no such right is present.

"We Are Not Radicals"

 .  . . writes proud, defiant member of the Group of 88.

In his co-authored op-ed, and after implying that his conduct might somehow be comparable to the brave civil rights activists who participated in the Greensboro sit-ins, Group leader William Chafe runs through a litany of policies that prompted him to violate the law. A couple of the issues that Chafe raises--dealing with efforts of the North Carolina state legislature to restrict the right of predominantly Democratic constituencies (students, minorities) to vote--might rise to the level of potential subjects for civil disobedience, dealing as they do with fundamental rights.

But Chafe comes across as the work of a figure more interested in play-acting as a 1960s radical than in actually influencing policy. He suggests that he was protesting not merely these voting rights issues, but North Carolina's political leadership's decision to reduce taxes on the wealthy. He also decided to break the law because North Carolina leaders made a policy choice that Associate Justice Elena Kagan deemed constitutional and declining federal funds to expand Medicaid. And he believed that he could place himself above the law because he knows better than North Carolina's elected government on whether to make a policy choice that former associate justice David Souter deemed constitutional and imposing some restrictions on abortion. A . . . distinguished . . . professor deems these policy choices to be grounds for civil disobedience?

The Chafe argument, summarized: unless a government elected by a majority of the voters enacts the policy agenda of the minority party (with which he happens to agree), he will engage in civil disobedience.

We live in a representative democracy. The state's Republican governor and GOP-led legislature ran on a platform of lowering taxes on the wealthy. If Chafe considers this policy so unappealing, perhaps he should devote himself to using his way with words to persuade a majority of his state's fellow citizens, rather than resort to breaking the law.

And imagine how Prof. Chafe would have reacted if Tea Party types had engaged in civil disobedience to demand higher taxes on the poor, or had screamed at women trying to access an abortion clinic. Somehow I doubt that he would have compared the Tea Partiers to a modern-day version of the Greensboro Four.

An aside: in what way does Chafe's past status as a president of the Organization of American Historians argue against deeming him a "radical"?

More on Penn State & Accountability

I’ve written extensively on the contrasting approaches to accountability between Penn State and Duke. The Penn State trustees, although they remained asleep at the switch for years, at the very least acted aggressively once the Sandusky allegations came to light. In contrast to Duke, which has done everything possible for several years to prevent a full-scale investigation of why the administration and so many “activist” faculty members so badly botched the lacrosse case, Penn State’s trustees gave an outside investigator full access to all university documents, including e-mails, involving the Sandusky cover-up. The resulting Freeh Report, of course, exposed some troubling things about Penn State’s campus culture and past decisionmaking process—but the willingness to commission the report suggested an acceptance of accountability that’s been totally lacking at Duke.

The Freeh Report, however, has produced a ferocious backlash on campus and, to a lesser extent, elsewhere in Pennsylvania. A handful of elected PSU trustees, led by Anthony Lubrano, have challenged the report’s validity, raising dark hints of denial of due process. PSU faculty leaders embarrassed themselves by challenging Freeh’s conclusions while failing to produce even one piece of evidence to corroborate their assertions. The state’s governor, Tom Corbett, initially accepted the Freeh Report, but then backtracked and sued the NCAA. (That Corbett, one of the nation’s most unpopular governors, faces re-election next year appears to have figured into his thinking.) And various state legislators criticized the NCAA for not spending the entire fine to which Penn State’s leadership agreed on matters in Pennsylvania.

The backlash raises some serious questions as to whether Penn State leaders, and the Pennsylvania politicians that they serve, are abandoning their initial, admirable acceptance of accountability for the Sandusky cover-up. This question has resurfaced in a different form in a bill currently before the Pennsylvania state legislature.

The bill seeks to extend the statute of limitations for victims of the Sandusky scandal, so as to allow them to file civil claims against Penn State and Sandusky’s charity organizations. In many states, such measures have generated opposition from the Catholic Church, since they threatened to expand the Church’s legal liability from the sexual abuse scandal. But in past cases, invariably a combination of public outrage, an understanding that many victims of child sexual abuse take years or even decades before coming forward, and a simple desire to do the right thing have led legislatures to extend the time period for filing suits.

Extending the statute of limitations beyond 30-year-olds, of course, poses potentially problematic questions for Penn State. In general, the narrative around the Sandusky scandal has focused on events of 1998 (when a local prosecutor elected not to file charges against Sandusky, after an investigation of which the PSU leadership was aware) and 2001 (when then-graduate assistant saw Sandusky sexually assaulting a boy in the football building’s showers, told Joe Paterno and then two senior administrators, only to see the PSU leadership decline to report the matter to the police).

Given its charge, the Freeh Report focused exclusively on these events and their aftermath. It thus never explored exactly when Sandusky started his pattern of abuse. If, as seems entirely plausible, he was engaging in abuse throughout his time at Penn State, that would mean at least some of his victims might need the law to pass in order to file a claim.

What, then, will Pennsylvania legislators do? Both state politicians and the PSU leadership have repeatedly expressed a willingness to treat all of Sandusky’s victims fairly—which would suggest that the bill should sail through to passage. Yet conceding that Sandusky might well have engaged in abuse throughout his Penn State tenure would undermine all but the most fanatic apologists for the Paterno football program; the (preposterous) claim that Paterno was too old or out-of-touch to effectively move against Sandusky would be entirely untenable as an explanation for any inaction by Paterno in the 1980s.

Far better, from the perspective of any ultra-Penn State loyalists in the legislature, to not look too far back into the past. But if they abandon accountability by declining to support the current legislation, they’ll effectively contribute, in their own way, to the cover-up that brought down the former PSU administration.

The Orin & Selena Show

In the early stages of the lacrosse case, Orin Starn distinguished himself as among the Duke faculty members most eager to exploit his own students’ distress to advance his campus agenda. The Sociology professor never seemed to miss a chance to condemn the lacrosse players—and Coach K, after he belatedly spoke up against the faculty mob—as part of his crusade to transform Duke into a version of Haverford or Swarthmore, schools with insignificant athletics programs. (In late summer 2006, after months of revelations of Mike Nifong’s procedural improprieties, Starn even proclaimed that the case nonetheless needed to go to trial, since “most Durhamites want to hear all the evidence before passing judgment,” as if basic principles of due process needed to give way to the desires of “most Durhamites.”)

This semester, Starn is teaching an on-line open class entitled “Sports and Society,” which a Duke press release breathlessly describes as an exploration of the “intersection of sports and American culture.” Among the invited guest lecturers . . . “sports studies experts”(!!) like Group of 88'er Grant Farred (who perhaps can expand on his thesis that former Houston Rockets center Yao Ming represents “the most profound threat to American empire”) and former New York Times columnist Selena Roberts.

Given his own repeated assaults on the lacrosse players’character, it comes as little surprise that Starn would deem credible a “journalist” who engaged in a character smear against his own institution's students only days after the case first went public, and then dissembled about what she wrote once the case collapsed. But perhaps Roberts’ more recent work has restored her standing?

As it turns out, Roberts’ journalistic credibility has been much in the news lately. After her departure from Sports Illustrated, Roberts moved on to a website called “Roopstigo,” a “revolutionary digital network that presents original sports content on demand for fans who demand more.” The “founder and CEO” of this entity is Selena Roberts.

The site was the talk of the sports world in early April, when Roberts published a 4000-plus word exposé of the Auburn football program. The article awkwardly combined an inquiry into criminal charges against four former Auburn football players with loosely-sourced allegations of rules violations by the Auburn coaching and administrative staff. Almost immediately after publication, the latter part of the article collapsed, as “source” after “source” claimed that Roberts had misquoted him, or worse.

The more interesting aspect of the article, however, came in its first area: Roberts suggested that one of the accused football players, Mike McNeil, was likely innocent of the charges against him, and had been the victim of some type of misconduct by authorities. The article never precisely explained who violated McNeil’s rights or why they had done so; indeed, the article never even fully summarized the full criminal case against him. Roberts did note that one of his co-defendants had been convicted to 15 years in prison, but her piece veered back and forth between a suggestion that a crime might have occurred but McNeil was innocent to implying that perhaps the whole thing was just a misunderstanding or even a frame orchestrated by Auburn to get rid of football players—with dreadlocks—that the then-coach didn’t like.

What made this line of argument so intriguing is that, of course, during the lacrosse case, this same Selena Roberts had demonstrated not a whit of interest in due process, or the presumption of innocence, or the need for prosecutors or police to behave in an ethical manner. Indeed, she had proven utterly indifferent to each of these themes, and her Auburn article provided no explanation for her newfound passion. Surely the differences in race and class between the respective defendants could not account for her abrupt turnabout.

In the event, Roberts’ article hinged on the defense of McNeil, who was also a principal source for her allegations of rules violations by the Auburn football team. The man with the dreadlocks, she suggested, was persecuted by the former Auburn coaching staff, and she came across as utterly convinced of his innocence. If McNeil was lying about his innocence on the robbery charges, then he had no credibility as a “snitch” (to use one of Roberts’ favorite words) against Auburn.

Imagine, then, Roberts’ humiliation when, only five days after her exposé appeared, the Birmingham News reported the following:

“Judge Chris Hughes sentenced McNeil to a 15-year split sentence that includes 3 years imprisonment and 3 years of probation after the former football player withdrew his not-guilty plea on Monday . . . McNeil, who wore a suit and had cut off his dreadlocks since his last court appearance on Friday, was taken into custody by Lee County sheriff's deputies at the end of the hearing, as his family watched from the gallery.”

The figure Roberts had portrayed as so sure of his innocence that he would go to trial, only five days later admitted guilt. A cynical person might suggest that McNeil’s legal team used Roberts as a way to increase pressure on prosecutors for a better plea deal.

Perhaps Roberts can bring her unique insights on due process in high-profile cases involving college athletes to Professor Starn’s class.

Starn’s offering is free—proving that you get what you paid for.

Hat tip--J.

News from Maine

After six subpoenas, two court hearings in Maine with several attorneys flown up from North Carolina, and multiple letters to my attorney, Duke's efforts to weaken the First Amendment rights of all news-gatherers in Maine ended below, with Judge Rich's dubious order officially vacated:

Neff a Pulitzer Finalist

For those who hadn't seen the news, Joe Neff was part of a team of reporters at the N&O and Charlotte Observer who were finalists for the Pulitzer for local reporting, for "for their tenacious joint project investigating how the state’s major nonprofit hospitals generate large profits and contribute to the high cost of health care." (The award ultimately went to reporters at the Minneapolis Star-Tribune.)

The honor serves as a reminder that Neff's sensational work in the lacrosse case was hardly atypical of his overall journalism.

Curious Commentary

[Update: I have retightened comment moderation in light of the off-topic comments.]

A few instances of . . . curious . . . commentary over the last couple of weeks: two items prompted by the settlement of the Carrington suit; the third by continued debate over the OCR mandate for colleges to lower due-process protections for students accused of sexual assault on campus.

The Chronicle featured what could charitably be described as a limited take on the settlement of the suit. Keep in mind: though the paper’s title remains the same, no undergraduates who currently write for the Chronicle were students at Duke during any element of the lacrosse affair, except for the now-all-but-routine promotions of various Group of 88 members to key administrative positions. During the lacrosse case itself, the Chronicle's coverage was unmatched in its excellence among the traditional media.

“As we reflect on this incident in which exotic dancer Crystal Mangum falsely accused three Duke lacrosse players of rape at a 2006 team party,” an unsigned editorial noted, “its place in the broader history of Duke becomes clearer. We can begin to see how it has molded and continues to mold our campus culture to this day. For many people both within and outside of the Duke community, this case continues to define Duke’s identity.” All quite true.

In what ways did the case “define Duke’s identity”? Dozens of “activist” faculty members willing to run rough-shod over the requirements of the Faculty Handbook, exploiting their students to advance their on-campus pedagogical or personnel agendas? An administration so terrified of the faculty mob that the president seemed unwilling or unable at critical points to articulate even a formulaic support for due process? Town-gown relations so warped that the university had entered into a (secret) agreement with the local police to allow for Duke students, and only Duke students, to be prosecuted with the maximum harshness for certain crimes?

No. The lacrosse case “unfortunately had a stifling effect on our administration” by scarring “the administration’s ability to comment on Duke’s social culture.” (Of course, the administration did “comment on Duke’s social culture,” first through Richard Brodhead’s infamous April 2006 campus letter and then through a Campus Cultural Initiative run by some of the most extreme anti-lacrosse voices among the faculty. Does the current Chronicle support any of the CCI’s recommendations, such as reorienting Duke’s athletics program in such a way that would all but certainly require withdrawing from the ACC?) “The lacrosse scandal,” according to the Chronicle, created an “enduring narrative . . . of rowdy, belligerent parties—with sexist and racist overtones—and the entitled students who attend them.”

To the extent this narrative took hold, it’s a development fueled by misplaced initial media coverage, followed by the conscious efforts of Duke’s own “activist” faculty (beginning early on, with William Chafe) to transform the event into a character assault on the lacrosse players to avoid accountability for their own rush to judgment. But this “historicizing,” to use the Chronicle’s word, is of little interest to the current editors. Instead, they worry that Brodhead has been too “shy” in commenting about matters related to campus culture.

A second Carrington‑related item came from Washington Monthly, a publication I read regularly for its quality political analysis. This piece, however, fell well below the publication’s usual standards.

Daniel Luzer, the Monthly’s web editor, informed readers that Crystal “Mangum, a black single mother, got into an argument with several lacrosse players and accused several members of the team of rape.” (Kim Roberts, of course, got into an argument with several lacrosse players; no evidence ever surfaced that Mangum did.) More: “Several players were arrested anyway, none were found guilty.” Actually, the three falsely-accused players received a declaration of actual innocence from the AG, a far different standard that being not “found guilty.” And lest any reader fail to detect Luzer’s spin, he concluded his piece by quoting commentary on the lacrosse players’ character from “one columnist,” who he declined to identify. The columnist turned out Hal Crowther; the quoted column, from the Nifong-backing Independent, might have been the single worst piece of commentary produced in the case.

Luzer appeared uninterested in exploring whether Crowther’s (and Indy’s) seeming ignorance of Nifong’s ethical misdeeds or the criminal case’s non-existent basis rendered less-than-credible their cultural analysis of the case. Indeed, Luzer’s post offered no hint of why, of the hundreds of pieces on the case, he chose Crowther’s as the single analysis from which to quote. Did Luzer find persuasive Crowther’s claim, in the same column, that those who criticized Nifong’s ethical misdeeds needed to “catch a glimpse of your inner racist in the mirror”? Does Luzer agree with Crowther’s characterization, in the same column, of the lacrosse players as “subhuman”? If not, why did he find Crowther credible as a source for cultural analysis of the case?

I e-mailed Luzer to ask if he, in fact, had any evidence that Mangum “got into an argument with several lacrosse players,” and noted that the players were deemed innocent, rather than “found” not guilty. He replied that he didn’t have evidence of his former claim, and ignored the latter point, but was willing to edit his post to eliminate the reference to a Mangum argument. The new post, however, did not indicate anywhere that a correction had occurred. That Luzer initially presented events at the party in an inaccurate fashion that rendered Mangum’s tall tale at least somewhat more credible, by inventing an argument involving her that never occurred, readers of non-cached versions of the Washington Monthly will remain ignorant.

A sense of non-accountability links the Chronicle and Luzer items: Indy seemed oblivious to Nifong’s misdeeds, and published wildly slanted (and in some cases, simply wrong) attacks on the lacrosse players, but still can be cited by a well-regarded publication as a reputable source for cultural analysis of the case. Brodhead’s belated one-paragraph apology was stillborn, and his campus culture initiative misjudged the faults that existed in 2006-7, but Chronicle editors can still yearn for his commentary on campus culture, without any indication or reason to believe that Brodhead learned from his past mistakes.

Then there’s adjunct law professor Wendy Murphy—who, if nothing else, is an expert on making mistakes. In an interview with AJR shortly after the criminal casecollapsed, Murphy justified her performance by citing the structure on TV or cable news programs: she was, she said, booked to argue the prosecution’s side of things. If she had to make things up to do so, it seemed, that was just part of the game.

Surely someone who made things up as much as Murphy did should forfeit all future credibility with the mainstream press. Yet last year, there was Murphy, invited to guest lecture by none other than Poynter, an organization supposedly devoted to good-journalism principles. And a couple of days ago, there was Murphy, an invited columnist for the New York Times’ “Room for Debate” section, opining on the government mandate for colleges to lower due-process protections for students accused of sexual assault.

Even more incredibly, Murphy’s piece was one of two presented in opposition to the government policy—on grounds that campus judicial procedures (in which accused students usually can’t have lawyers, often can’t cross-examine their accusers, and always can be convicted at a 50.1% threshold) don’t do enough to secure convictions.

“Fair and balanced,” Times style.

Quote of the Day

"Duke University has a long tradition of guarding responsible academic freedom for its entire instructional staff, and the university itself cherishes and guards against incursions upon its own essential academic freedoms."

See below, statement of Duke attorney Tom Segars to Judge Brock Hornby.

Duke Confronts the First Amendment

As some DIW readers know, last summer, I received several subpoenas from Duke, demanding among other things my confidential communications with hundreds of people relating to the “lacrosse incident” or discussing in any way President Brodhead’s “job performance.” The targeted correspondents consisted of all members of the 2006 lacrosse team, including the three falsely accused players who had long ago settled with Duke; all lawyers who were involved in the civil suit; all Duke faculty members; all Duke administrators or other employees; and all Duke alumni.

The subpoena also demanded many of my (but not co-author Stuart Taylor’s) interview notes for Until Proven Innocent; all portions of the criminal-case discovery file that I (but not Stuart) used for our co-authored book; information about the blog’s legal guidelines, terms for which are set solely by Google; and details of the blog’s comments policy, which are publicly available on the DIW homepage.

The subpoena surprised me, for two reasons. First, it’s true that many institutions of higher learning don’t respect the First Amendment in their own policies, as a glance through the FIRE website shows. (Duke itself has a rating indicating ambiguous policies “that too easily encourage[] administrative abuse and arbitrary application.”) Nonetheless, major research universities rarely launch a frontal attack on First Amendment and academic freedom privileges as Duke did in this instance, lest they create a precedent that could be used against their own faculty members in the future. A major research university that deems itself “happy” with forcing researchers to turn over internal correspondence in a civil suit to which the professor isn’t a party—as Duke’s attorneys described the university’s attitude to Maine District Court judge Brock Hornby—will have trouble attracting quality scholars, at least those whose research in any way touches on controversial, contemporary matters. In short, self-interest almost always leads universities to defend, rather than undermine, First Amendment academic privileges.

Second, and perhaps revealing its true intentions in this action, Duke did not subpoena a host of similarly-situated news-gatherers. (In its legal filings, Duke theorized that my having interviewed some of the plaintiffs or their attorneys on the record suggested that I was no longer entitled to a journalistic privilege for confidential unpublished exchanges with sources.) Along with Stuart, whose personal contact with figures related to the case predated my own, this “non-subpoenaed” list included It’s Not About the Truth primary author Don Yaeger, who “interviewed more than seventy-five key figures intimately involved in the case”; former Chronicle reporter John Taddei, who conducted the first on-the-record interviews with any of the plaintiffs in the civil suit; and a variety of other reporters.

But one important factor did distinguish me from the journalists mentioned above. In a letter submitted to the court, Duke rationalized its litigation strategy on grounds that I “continue[d] to this day to blog about the events underlying this litigation.” That description did not apply to the journalists on the “non-subpoenaed” list.

----------

My initial first-hand encounter with the Duke’s Ellis & Winters attorneys came not in the lacrosse civil suits, but in the lawsuit filed by Katie Rouse. If I was surprised by the lacrosse subpoenas, I was shocked to receive a subpoena regarding Rouse: as was clear from the blog and the book, I had done no original reporting on Rouse. Setting a pattern, Stuart was not subpoenaed, without explanation, even though Duke purported to be interested in material from our co-authored book; and, to the best of my knowledge, Duke did not subpoena the media sources that my post had cited.

In the event, although I informed Duke that I had done no original reporting on Rouse and had no confidential communications relevant to the lawsuit, Duke flew two attorneys from the Triangle to Maine to depose me. (By the end of the case, and apparently eager to cut its losses before the Maine District Court, Duke would change its mind about conducting depositions without responsive documents.) In a session that lasted more than two hours, the questions ranged far beyond anything remotely related to the Rouse case, culminating in what might have been the oddest complaint I received from any source over the history of the blog: whether, in summarizing a lawsuit in a post that quoted from Duke’s own legal filings, I made “any attempt . . . [to] get Duke’s side of the story.”

When subsequently confronted with this record, Duke’s lead attorney, Tom Segars, told a Maine magistrate judge that “our intention here is not to criticize his editorial comments about Duke’s handling of the case or even really pry into those.” He never reconciled this assertion with his colleagues’ Rouse deposition questions.

Even without this troubling experience from the Rouse case, I would have resisted Duke’s efforts to obtain my confidential, unpublished communications. DIW was and remains a one-person effort; the blog survived and (to the extent it did) broke original stories solely because I developed a reputation as someone who sources could trust. My transformation into a glorified research assistant for Duke would have betrayed the trust that these sources placed in me.

Also, since 2009 I’ve blogged regularly at Minding the Campus, where I often cover controversial topics that are or might be the subject of civil litigation. If Duke succeeded in creating a precedent compelling me to turn over confidential, unpublished communications, there’s every reason to believe other universities about which I’ve written critically would have tried the same thing—resulting in my MTC sources drying up.

Fearful that Duke wanted to improperly use the deposition process as a means to intimidate a critic, and given the extraordinary breadth of the lacrosse case subpoenas—complying with them would have given the university a road-map to retaliate against every Duke employee, including faculty members, who had provided me with confidential information—I realized I needed legal assistance, which I had lacked in the Rouse matter. With help from Stuart and from John Leo, I reached out to the Reporters Committee for Freedom of the Press. They put me in touch with Bingham. My primary attorney with Bingham, Patrick Strawbridge, was sensational.

After I retained counsel, the university suddenly dropped its demands for my exchanges with Duke administrators, faculty members, and alumni, as well as its demands for material related to the publicly-available blog rules and procedures. At no point in the case, in any letter, court filing, or hearing, did any of Duke’s many attorneys ever provide a justification for subpoenaing all of my correspondence with Duke faculty members about Brodhead’s “job performance.”

(An aside: while forcing me to reveal confidential, unpublished information would have crippled my ability as a news-gatherer, both at DIW while it remains active and in my other blogging efforts, Duke had no reason to believe that anything from my files would help the university’s legal case. In the normal discovery process involving the lacrosse plaintiffs and their parents, Duke already had obtained scores of e-mails to or from me. Yet at no point, in any letter or court filing, did Duke bolster its case by presenting even one e-mail that I sent, or one e-mail a lacrosse player, parent, or attorney sent to me. That’s not surprising, since the e-mails at issue reinforced the arguments presented in the blog and book, arguments the university seemed desperately eager to discredit.)

Duke opened the legal battle with what it presented as a compromise: the university’s motion to compel said that Duke would be satisfied with my turning over all unpublished, confidential correspondence with the lacrosse players (not just the plaintiffs), their parents, their attorneys, and at least one law firm employee regarding all events between March 16, 2006 and March 28, 2006—plus several specific issues (such as the punishment of Ryan McFadyen) that extended beyond this timeframe. In exchange, Duke offered to cease demands for my case-related correspondence with Duke professors or with Stuart. This “compromise” actually expanded the scope of Duke’s original subpoena to include my exchanges with parents, and bizarrely purported to exclude exchanges with Stuart, even though the original subpoena hadn’t covered such material.

In our response, Patrick Strawbridge explained that “left unchecked, Duke’s efforts could chill further reporting on the continuing fallout from the Duke lacrosse case—a matter of obvious public importance.” He also pointed out the similarity between my case and another First Circuit case that Duke initially tried to avoid, Cusumano, in which the court blocked Microsoft’s efforts to obtain interview excerpts between two professors (one from Harvard, the other from MIT) and Netscape officials; and held that academic researchers were entitled to the same First Amendment protections as journalists.

Oral argument before Magistrate Judge John Rich occurred in early October; Duke’s Segars, who led off the hearing, offered several statements that appeared to conflict with the facts of the case. To take one particularly outrageous example: the Duke attorney asserted that I was “the only other source” other than the players themselves for near-contemporaneous statements from the lacrosse players (“If those facts and statements are unavailable from the plaintiffs, the other party can seek them from the only other source . . . We’ve done this as an option of last resort”). But—not even counting their friends or roommates, to whom the lacrosse players might have confided in spring 2006—the future plaintiffs had conducted on-the-record interviews with several other journalists, none of whom were subpoenaed. When pressed on this matter in rebuttal, Segars denied improper selectivity, noting that Duke had also subpoenaed former coach Mike Pressler(!)—who (to, no doubt, his great surprise) apparently gained retroactive status as a journalist on the basis of co-authoring his memoir.

On October 12, Judge Rich nonetheless decided in Duke’s favor. He appeared to see his role as giving Duke some, but not all, of what it wanted, blind to the fact that giving Duke anything contravened both First Amendment principles and any fair-minded interpretation of Cusumano.

So we appealed to the Maine District Court, where the case was assigned to Judge Brock Hornby. Patrick penned an excellent brief (our most comprehensive survey of the case) and a hard-hitting response to Duke’s defensive filing. The reply, which welcomed Duke’s belated recognition that Cusumano was in fact the relevant precedent for this dispute, caught several errors of fact or creative use of ellipsis on the university’s part.

Maine’s media organizations—recognizing the threat that Duke’s conception of the First Amendment posed to their reporters—also filed amicus brief arguing that that the Rich order, and the Duke standard on which it relied, “disregards the important principle that journalists must be free to work independently of the judicial process . . . and dismisses the very real chilling effect that a decision like this will have on the public’s receipt of information in important controversies.” The Reporters Committee for Freedom of the Press, the Portland Press-Herald, the Bangor Daily News, and the Maine Association of Broadcasters feared that Rich—and Duke—tried to obscure how the case represented “a question of the much greater interest in serving the public good by creating informed communities.”

At the January 23 appeals hearing, Judge Hornby appeared acutely interested in the First Amendment ramifications of Duke’s claims. Noting Duke’s desire to force a professor to turn over unpublished research material, the judge asked Segars if he actually was representing Duke as an institution. (That’s when Segars said that he’d be “happy” to see Duke professors live under the university’s proposed standard for me, a revelation that I doubt the Brodhead administration has shared with any Duke faculty members.) Judge Hornby also pressed Segars on Duke’s apparent indifference to chilling academic freedom, wondering whether Duke’s proposed standard would require any professor who planned to publish a book on a controversial topic to retain counsel for subsequent third-party involvement in civil suits. And Segars had a difficult time articulating a benign reason why Duke had subpoenaed only one author of a co-authored book, given that Duke had no idea whether Stuart or I was the primary researcher for the sections of UPI in which the university claimed interest.

It’s always dangerous—as Jeffrey Toobin discovered after the Obamacare ruling—to anticipate judicial decisions based on questions that judges ask. But at the very least Judge Hornby seemed sensitive to the First Amendment problems posed by Duke’s arguments, and skeptical about the university’s rationale for why it would need access to my confidential, unpublished communications. After the settlement of one of the two civil suits, and amidst another Strawbridge letter that undermined what was left of its claims, Duke withdrew the remaining subpoenas before Hornby had a chance to file his opinion. By this stage, avoiding an opinion that might have branded one of the nation’s leading research universities as an enemy of the First Amendment was as close to “victory” as Duke would come in this matter.

--------

Over a nine-month period, Duke filed six subpoenas, produced three briefs, wrote two letters, thrice sent teams of attorneys to Maine, and hired an additional lawyer from Portland—all in order to gain access to unpublished, confidential information of a professor at another institution.

Recall that record the next time Brodhead administration officials claim reverence for academicfreedom or the First Amendment. Indeed, Duke’s performance in this case exposes the hollowness of the university’s commitment to any conception of academic freedom.

A final note: things are always better when you have a great lawyer. I was extremely fortunate in this regard. For those interested: here’s a full archive of my attorney’s legal filings, plus Judge Rich’s decision and Duke’s defensive and sometimes misleading offerings.

News from Maine

Despite the Carrington settlement, earlier this week, Duke's attorneys informed the Maine District Court that the dismissal of Carrington did “not impact” its subpoenas against me in the parallel McFadyen (Bob Ekstrand) lawsuit.

Thanks to some effective lawyering by my attorney, Patrick Strawbridge--and still awaiting a decision from Maine District Court judge Brock Hornby, who peppered the Duke attorneys with skeptical questions during January oral argument--Duke has just indicated that it has withdrawn its subpoenas and ceased its attempts to compel me to reveal confidential, unpublished communications with sources for the book and blog. The withdrawal of the subpoenas means that Judge Hornby will not have occasion to issue a written opinion on the merits of Duke's actions. In light of Duke's withdrawal of the subpoena before Judge Hornby had an opportunity to adjudicate the matter, my attorney has filed a motion to vacate the order of the magistrate judge.

In deference to the process, I refrained from public comment about Duke's actions as the case worked its way through the Maine courts, but I will write about my experience in a forthcoming post.

Carrington Lawsuit Settled

The Carrington lawsuit, the most significant of the lawsuits against Duke, was settled today. No settlement terms were released--but given the overt hostility of the 4th Circuit to the lawsuit, and the ruling by Judge Beaty affirming that the student bulletin and faculty handbook aren't legally worth the paper they're written on, the decision can't be seen as much of a surprise.

The McFadyen lawsuit, for the three plaintiffs represented by Bob Ekstrand, remains alive. This news nonetheless means that chances of Duke being held accountable in court for its mistreatment of its students are very slim indeed.

Mangum Update

WRAL reports that false accuser and accused murderer Crystal Mangum has posted a $200,000 bond and is now out of jail, awaiting trial. The article doesn't reveal the source of the cash. Presuming Mangum hasn't suddenly inherited money, it would seem as if an unexpected financial backer has delivered for her.

Campus News

A few items from Duke and other campuses:

First, a horrifying story of anti-Asian prejudice from a Duke fraternity (followed, a few days later, by reports that at least some Duke students—there are debates about how many—were mocking a NC State basketball player over his grandmother’s death). These are not signs of a healthy campus culture.

The recent events recalled an item from UPI, revealed by Stuart’s reporting—that in the 2005-6 academic year, around 20 student groups hired strippers for campus parties. That well-meaning and basically decent students could make such poor choices provided a legitimate ground for the university to launch an impartial examination of campus culture. So, too, did the issue of whether prejudice was too rooted on the Duke campus.

But examining these issues would have required shining a harsh light on not merely Duke students but also some Duke faculty—it would be hard to argue that prejudice did not factor into the behavior of at least some of the Group of 88, such as Houston Baker, Wahneema Lubiano, and Grant Farred. So the Brodhead administration avoided these difficult issues and instead implemented the Campus Culture Initiative, allowing three of the CCI’s four subcommittees to be run by anti-lacrosse extremists. The CCI unsurprisingly produced a report so extreme (urging that Duke adjust its scheduling policies to basically force the university to withdraw from the ACC, recommending a curricular change that would have compelled the vast majority of Duke undergrads to take a course from a Group member) that even Brodhead had no choice but to shelve the panel’s findings.

Duke has suspended the anti-Asian fraternity, allegedly for reasons unrelated to the prejudicial behavior.

Second, at Penn State, the Paterno Family has released its long-awaited critique of the Freeh Report. I analyzed the document over at Minding the Campus. The report provides almost no new evidence, continues the general pro-Paterno pattern of insisting on wildly counterintuitive interpretations of circumstantial evidence, and presents several odd interpretations of due process. On the latter point, for instance, the Paterno Family attacks Freeh’s investigators for not interviewing two senior administrators (Freeh instead relied on contemporaneous e-mails from the duo) who declined to cooperate with Freeh on advice of counsel. Yet the Paterno Family’s hired attorneys and experts didn’t interview the two senior administrators, either.

In the event, so obsessed was the family with restoring Paterno’s tarnished reputation that they bequeathed a report that effectively left unchallenged Freeh’s central assertion that a handful of powerful administrators cooperated to bypass the legal requirement to report Sandusky to police—only that Paterno (a figure, apparently, without much power or influence on campus) played no role in these decisions.

It’s a document for true believers, and true believers only.

Finally, on my own campus, a shameful episode, in which the school’s political department formally (and highly unusually) voted to affiliate itself with a talk by two advocates of separating Israeli from the international community, including boycotting Israeli academics based on their nationality. Then, facing intense public criticism, the professors refused to provide a rationale for their vote. (This vision of academic freedom amounted to an accused criminal pleading the 5^th amendment.) When the event occurred, a handful of anti-BDS students were expelled from the proceeding, despite the college president’s invitation to critics of the talk to attend and ask questions.

The college’s apparent disinterest in the academic freedom of its students reinforced an impression that a fear of antagonizing powerful anti-Israel forces on campus guided the administration’s approach to the case.

Hat tip—R.L.

Only in Durham, Vol. 99

[Update, Tuesday, 10.57pm: The Durham News has an interview with Judge Hudson, who was on the committee that selected the photos. He told the News, “We knew that (Nifong’s and Cline’s presence) might be somewhat controversial, but, you know, it is the ultimate history of the courthouse. We can’t strike the bad, we live with it as part of our history.”

I'm a historian, so obviously do not favor whitewashing the past. But I'm unconvinced that a hall of justice is an appropriate venue for posing photos of unethical figures. If the goal was to ensure that people didn't forget the bad, photos of Roy Cooper announcing the exoneration, or Lane Williamson presiding over the Nifong ethics proceedings, would have been more appropriate.]

ABC-11 brings welcome news that Durham is scheduled to open a new county courthouse. As part of the design, the county created a mural containing photos honoring some of the key legal figures in the county's history.

The photo array includes these two items:

Only in Durham could the hall of justice feature photos of chief prosecutors removed for unethical behavior. A spokesperson suggested that "random" selections explained the design.

"It's a great day," said Judge Marcia Morey, former character witness for both Mike Nifong and Tracey Cline, "and I think it's a new day for justice in Durham."

Indeed.

Professor Hattery Analyzes the Lacrosse Case

Angela Hattery is a professor at George Mason University, where she serves as the associate director of the school’s Center for Women and Gender Studies. (This semester, she’s teaching a course in theoretical perspectives in women and gender studies.) She came to George Mason from Wake Forest, a North Carolina university around 75 miles from Duke, where she also taught gender studies classes. She said that she came to GMU because she “liked the diversity and the way the program integrates not just gender issues but race and ethnicity as well.” Her research interests? “The intersections of race, class, gender, sexuality.” 

Of course.

Professor Hattery recently decided to offer her insights on the Duke lacrosse case. She penned a post entitled, “Rape in High School and College Athletics: Why do we settle for the explanation that boys will simply be boys?”

The post touches on five cases: the Glen Ridge (NJ) rape by members of the high school football team; the Steubenville (OH) alleged rape by high school football players, in which two players have been charged and await trial in juvenile court; the Kobe Bryant rape allegations, in which charges against Bryant were dropped but a civil claim was settled; an allegation that two former Wake Forest basketball players (who were never charged) raped a fellow student; and the Duke lacrosse case.

The Kobe Bryant case occurred when Bryant was a member of the Los Angeles Lakers, a professional basketball team; Hattery does not explain its relevance to a post about “rape in high school and college athletics.”

Just how similar to the Duke case are the other three cases? The Wake Forest case (to which Hattery provided a link to an interview with the accuser) involved an allegation of acquaintance rape, in which the accuser leveled her allegations two months after the alleged incident; the basketball players claimed that the sexual intercourse was consensual but never denied all sexual contact. In the Duke case, of course, the lacrosse players consistently claimed that never was any intercourse of any type, and DNA tests corroborated their assertions.

In the Glen Ridge case, four men were convicted of sexual assault. In the Duke case, of course, the attorney general issued a report indicating that the accused students were wholly innocent.

In the Steubenville case, there appears to be very strong evidence that a crime occurred (based in part through on social-media accounts by the alleged perpetrators and their friends), and a special prosecutor was appointed because of concerns that the local law enforcement was too lenient and sympathetic towards the alleged perpetrators. In the Duke case, of course, there was no evidence a crime occurred, and the original law enforcement reaction was (unethically) too harsh and unsympathetic towards the alleged perpetrators.

Hattery attempts to slide past these pretty significant distinctions between the lacrosse case and her other examples by offering what she terms a “caveat”: that “some of the events and cases I’m going to highlight did not ultimately end up generating criminal charges and in some cases trials failed to garner a conviction. It’s not the legal outcomes that are my concern.” Yet the title of her post is “Rape in High School and College Athletics,” not “Allegations of Rape against High School or College Athletes.” Hattery does not reveal how she concluded that a “rape” had occurred in cases in which trials or legal investigations “failed to garner a conviction”—or much less, as in the Duke case, yielded a finding of actual innocence.

Professor Hattery offers two insights about the lacrosse case. First, after taking note of the outrage following “a youtube video of a young man from Steubenville talking about the [alleged] victim as being “dead as a doornail,” she muses, “I wonder what we would have seen if a cell phone user had videotaped the strippers the night of March 13, 2006 at the Duke lacrosse house. Would we have had a similar response?”

The (unstated) implication: contemporaneous cell-phone activity in the lacrosse case would have revealed untoward activity.

Hattery didn’t provide a link to her question about the Duke case—perhaps she was unaware that the contemporaneous material from “cell phone user[s]” regarding the strippers didn’t exactly support her insinuation. And while at Steubenville the cell-phone evidence to which Hattery did provide a link bolstered the accuser’s claims, at Duke, the cell-phone photos to which Hattery did not provide a link wholly undermined the accuser’s (and Mike Nifong’s) claims.

Professor Hattery, it seems, has quite an unusual linkage policy.

Hattery’s second observation about the lacrosse case asked readers to “recall that in the case of the Duke lacrosse team one of the fathers indicated that he didn’t see what the issue was, he and his Wall Street colleagues routinely unwind together at the end of the day at strip clubs.” Once again, the suddenly link-shy Hattery failed to provide any link to these alleged remarks; her readers, evidently, were just supposed to “recall” an alleged interview from more than six years ago.

The fathers of two of the falsely accused players (Seligmann and Finnerty) have over the course of their careers worked on Wall Street; neither of them ever “indicated” anything like the Hattery paraphrase. I e-mailed Hattery to ask her for a link to her item about “one of the fathers,” and also to ask why her post hadn’t provided a link to the AG’s report that used contemporaneous cell-phone photos to exonerate, rather than inculpate, the lacrosse players.

Professor Hattery did not reply.

[Update: After the appearance of the post, Professor Hattery graciously, if somewhat confusingly, replied. She did not indicate why her post left people to "wonder" about what might have been contained in social media evidence that was, in fact, released to the media (and released very early in the case). She added that she was concerned not with the legalities of the cases that she examined, but instead "focusing on the cultural [question] that contributes to behavior that is less than ethical." Not to recapitulate the above, but the title of her post--"rape" and not "alleged rape"--passed a legal judgment, and it's hard to see the connection between four cases in which (at minimum) sexual contact occurred and a fifth case in which no sexual contact of any kind occurred.

Hattery also cited this Washington Post article as the only source for her inflammatory claim that "one of the fathers indicated that he didn't see what the issue was, he and his Wall Street colleagues routinely unwind together at the end of the day at strip clubs."

Her blog post interpreted the article as saying two things: (1) one of the fathers quoted in the article worked on Wall Street, where he and his "colleagues [would] routinely unwind together at the end of the day at strip clubs"; and (2) the father "didn't see what the issue was," as part of a "boys will be boys" defense of his son. "This," Hattery mockingly asked, "is supposed to make me feel better?"

Both of Hattery's interpretations of the Post article are wildly off-the-mark; the first is simply wrong. In the article (which interviewed several parents), a parent named John Walsh said about the hiring of strippers, "You see it in New York; it's the preferred type of entertainment for Wall Street." But Walsh is identified in the very same article that Hattery cited as her only source not as someone who works on Wall Street or even in the financial industry--but as a "health administrator who lives in Bethesda," Maryland.

Most disturbingly, the article contains no suggestion that Walsh ever has visited a strip club, much less that he joined his colleagues from Wall Street, Bethesda, or anyplace else in "routinely unwind[ing] together at the end of the day at strip clubs."

Regarding Hattery's claim that the article featured the parents falling back on a "boys will be boys" defense, Walsh told the Post that he was surprised how prevalent the hiring of strippers on college campuses was, and that he didn't "advocate" doing so. A second parent, Tracy Tkac, gave a comment that's about as far away from Hattery's "boys will be boys" defense as you could get: according to Tkac, "Hiring a stripper is just as inappropriate as being a stripper."

As part of a post concerned with exposing "less than ethical" behavior, then, Professor Hattery falsely stated that a lacrosse parent "routinely" visited strip clubs with his work colleagues (in a city where he didn't even work); and then used that false claim to draw a negative inference in how parents of unindicted players sought to defend their sons' reputations.]

UNC & A Credulous Press

Last year, in a post over at Minding the Campus, I examined how the University of North Carolina responded to the Obama administration’s “Dear Colleague” letter, which required all colleges receiving federal assistance to change their sexual assault procedures. The new procedures enhance the likelihood of conviction, by using a “preponderance of evidence” [50.1%] standard and by introducing double jeopardy through an accuser’s right to appeal not-guilty findings.

Even before these mandated changes, the system that previously existed at UNC already made a mockery of due process rights for the accused. Unless the accuser simultaneously filed a criminal complaint, the accused student couldn’t be represented by counsel in the hearing. (“Neither a licensed attorney nor a person who has passed a state bar examination may serve as the investigator or defense counsel or be present during proceedings.”) When criminal charges were filed, a lawyer could be present but not speak to the hearing panel or cross-examine witnesses. And the hearing panel had the right to obstruct an effective defense by restricting exculpatory evidence only to material that “does not otherwise infringe the rights of other students.”

In response to the “Dear Colleague” letter, UNC further weakened the due process protections for students accused of sexual assault—and only for these students. It set up a two-tier student judicial system. Students accused of all other offenses would continue to be tried by the school’s Student Honor Court and according to a standard of beyond a reasonable doubt. But students accused of sexual assault (a far more serious allegation than most student judicial questions) would be adjudicated under a far lower threshold (preponderance of evidence). And the claims would no longer be heard by the Student Honor Court but by specially trained evaluators.

Celebrating the new system in a fawning interview with InsideHigher Ed was an assistant dean of students, Melinda Manning. Manning said the existing system (that is, the system that denied students accused of sexual assault the right to be represented by counsel in their hearing) was too accuser-friendly, since the Student Honor Court improperly required “victims [not ‘alleged victims’ or ‘accusers’] to be judged by a roomful of peers.”

Ponder that statement for a minute.

To reiterate: last April, UNC took a system that already denied basic due process to accused students—and made it more likely that accused students would be convicted, by lowering the threshold for a guilty finding in sexual assault cases and only sexual assault cases, and by ensuring that students accused of sexual assault wouldn’t be evaluated by the campus equivalent of a jury of their peers.

Manning is back in the news—as a supporter of a federal civil rights claim filed by current and former UNC students who assert they were victims of sexual assault but that the system described above so failed to protect their rights that it created a hostile campus environment under Title IX. “My original plan was just to walk away and forget about everything that’s happened,” Manning (the opponent, again, of allowing students accused of sexual assault to be judged by a jury of their peers) e-mailed the Daily Tar Heel. “But I love Carolina too much to do that. I can’t assume that someone else will fix these problems without my input.” 

Indeed.

The complaint itself isn’t public, but was seen by the Daily Tar Heel. Writes reporter Caitlin McCabe (wholly uncritically), “The complaint is rich with stories of hostility, including the administration’s failure to train Honor Court members who facilitated sexual assault hearings, to treat both the accused and accusing student fairly and to keep survivors informed.” McCabe’s article also speaks of one of the complainants working on behalf of herself and “65 sexual assault survivors” at UNC. The word “alleged” does not appear in McCabe’s article: as presented by the DTH, each of these 66 accusers was, in fact, victim of a violent crime. The article contains no mention that any of these complaints actually resulted in a conviction (or even a trial).

McCabe did not quote from any defense attorneys or campus civil liberties groups (such as FIRE) in her article.

Interestingly, Star-Ledger columnist Steve Politi—who did excellent work on the lacrosse case, and who once seemed to understand the danger of college students facing sexual assault claims amidst a lack of due process (though at least Reade Seligmann, about whom Politi wrote, had the right to a lawyer, unlike accused students at UNC)—tweeted commendably about the DTH’s uncritical coverage of the complaint.

In the N&O, reporter Gloria Lloyd likewise declines to use the phrases “alleged victims” or “accusers,” and instead reports as fact that 66 rapes occurred. “The students say,” she writes, “they are sexual-assault victims and that the university mishandled their cases by not believing or supporting them or by accusing them of being at fault in their attacks.”

Lloyd does not explain how “not believing” a claim, in and of itself, could constitute mishandling of a case. Even the pro-accuser OCR has never maintained that a finding of not guilty (that is, “not believing” the accuser) indicates a problem with the process.

Lloyd did not quote from any defense attorneys or campus civil liberties groups (such as FIRE) in her article.

The title of a Huffington Postarticle by Tyler Kingkade is “University Of North Carolina Routinely Violates Sexual Assault Survivor Rights, Students Claim.” The article seems to speak as if there’s no question that each rape occurred, noting that the complaint was filed by two “survivors” and “64 other victims.” Oddly, at other points Kingkade describes accused students as “alleged rapists” who committed “alleged abuse.” How a “victim” is produced by a rape that remains only “alleged” Kingkade does not reveal.

Unlike Lloyd and McCabe, Kingkade does reference—obliquely—the UNC procedures (though he doesn’t discuss the rules against an accused student having representation in the hearing, or the low threshold for a guilty finding), merely noting that the Honor Court no longer is allowed to hear cases. He then quotes from a UNC student referencing the change (designed to make convictions more likely) as perpetuating a “culture of silence.”

Kingkade at least reached out to someone beyond the ranks of accusers and their supporters. He interviewed Student Press Law Center attorney Adam Goldstein, who astutely noted that “law enforcement and the adjudication of rape cases in general does not lend itself to amateurs.”

The most striking aspect of both the DTH and the N&O articles came in their decision not to describe, in any way, the procedures that supposedly treated these 66 rape victims unfairly. How could any DTH or N&O reader know, for instance, that a process that’s supposedly indifferent to the suffering to rape victims in actuality denies accused students the right to counsel, or allows conviction on a 50.1% threshold? The HuffPost article does, briefly, mention UNC procedures, but only to bizarrely imply that the 2012 changes perpetuate a culture of silence.

Including the necessary procedural context, of course, would have dramatically altered the uncritical acceptance about the facts of the complaint that the reporters brought to their articles. Given their uncritical acceptance, however, each buried the lede: the major issue would seem to be the discovery that the seemingly placid UNC campus is actually a center of violent crime. According to the DTH, the N&O, and Huffington Post, there were at least 66 sexual assaults at the University of North Carolina over the past six years—an average of 11 sexual assaults per year. (The articles reference 2007 as a starting date for the complaint, although they’re not entirely clear on this point.) And, again, each article uses wording that indicates these violent crimes definitely occurred—“survivors” and “victims,” not “alleged victims” and “accusers.”

Accordingto FBI crime statistics during this period, Chapel Hill is listed as having had 9 rapes in 2008, 14 rapes in 2009, 11 rapes in 2010, and 7 rapes in 2011—for an average of 10.3 per year. (Figures for 2007 and 2012 aren’t available.) In short, comparing FBI stats to the figures presented uncritically by the DTH, the N&O, and HuffPost, every sexual assault in Chapel Hill over the past several years has occurred to a UNC student. That’s an extraordinary development, a suggestion that the campus is a virtual hotbed of violent crime in an otherwise utterly placid city.

Or, perhaps, could it be that the statistics presented uncritically by the DTH, the N&O, and HuffPost deserved a bit of journalistic skepticism—and that a system that denies basic due process to accused students can’t uncritically be described as mistreating accusers?

Hat tip: B.