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In the last two weeks, the Duke University lacrosse case has rapidly unraveled. First, at a December 15 hearing, the director of a private lab admitted that he and prosecutor Mike Nifong had entered into agreement to intentionally withhold exculpatory DNA evidence. Then, a week later, Nifong announced that a representative from his office had interviewed the accuser for the first time (eight months after arrests were made), and that she no longer claimed memory of events that would constitute rape. The district attorney promised to proceed anyway with charges of sexual assault and kidnapping against the three students he has targeted -- Reade Seligmann, Collin Finnerty, and Dave Evans. But as things stand now, the case seems unlikely to survive a February 5 hearing to consider defense motions to suppress a procedurally flawed photo lineup.
I created a blog to cover this case, exploring the twin themes of Nifong’s misconduct and Duke’s troubling response to it. I have no connection to Duke, and knew none of the lacrosse players when this case began. My initial interest flowed from dismay at the faculty’s rush to judgment in late March and early April.
I stayed with the case for a variety of reasons. As a historian of Congress, I’ve spent 15 years examining the significance of procedure -- and it’s hard to imagine a case that will better demonstrate how procedural decisions directly affect outcomes. Personally, I have some experience in dealing with rogue figures in power amidst an atmosphere of academic groupthink, and recall the importance of outside pressure in exposing wrongdoing. And pragmatically, the blog has had some impact, perhaps because I enjoy more freedom to speak out than local faculty members, who risk opprobrium from what one Duke professor termed “the wrath of the righteous.”
The response to what could now be termed the “non-rape” case will not go down among the academy’s finest moments. Three issues seem to me particularly noteworthy.
1. Concerns about McCarthyite behavior tend to depend on who is targeted. Defenders of the academic status quo regularly accuse critics of latter-day McCarthyism -- on issues ranging from the Academic Bill of Rights to Ward Churchill’s fate. Yet, last spring, when a local demagogue who ignored civil liberties targeted their own students, Duke faculty members barely expressed concern about his actions.
Over the last nine months, Mike Nifong has coupled demagogic appeals to prejudices based on class and race with a habit of making public charges unsubstantiated by material in his own files. Meanwhile, he overrode standard procedures (ordering police to show the accuser a lineup confined to suspects; refusing to meet with defense attorneys to consider exculpatory evidence; concealing DNA test results) and mocked due process. In one of his most outrageous lines, he mused, “One would wonder why one needs an attorney if one was not charged and had not done anything wrong.”
Yet despite that record, until last week only three Duke faculty members -- James Coleman (law), Steven Baldwin (chemistry), and Michael Gustafson (engineering) -- had publicly criticized Nifong’s conduct. This trio comprises 0.2 percent of all Duke professors.
2. In the contemporary academy, some students are more equal than others. On April 6, 88 faculty members issued a statement proclaiming that they were “listening” to alleged statements from anonymous Duke students. Relying solely on the version of events presented by Nifong, the Group of 88 took out an ad in the Duke Chronicle that included remarks of the signatories themselves. The professors definitively asserted that something “happened” to the accuser, while saying “thank you” to campus protesters like these, who had called the players “rapists” and distributed a “wanted” poster with lacrosse players’ photos. The statement’s author, Wahneema Lubiano, gleefully labeled the players the “perfect offenders,” and, as ESPN reported, fully understood that “some would see the ad as a stake through the collective heart of the lacrosse team.”
By this fall, student sentiment had turned overwhelmingly against Nifong and in favor of the targeted players. Yet the Group of 88 and like-minded Duke faculty no longer seemed interested in “listening” to their students. One signatory, Grant Farred, accused Duke undergraduates who registered to vote in Durham of projecting their “secret racism” onto the city. Another, Karla Holloway, denounced the Duke students who had defended the players, suggesting that they believed that “white innocence means black guilt. Men’s innocence means women’s guilt.” Peter Wood, meanwhile, leveled several unsubstantiated attacks on Reade Seligmann, about whom virtually no one other than Nifong has said anything untoward. Thomas Crowley published an op-ed containing so many falsehoods about the lacrosse team that he had to retract the document.
Duke’s admissions home page promises prospective parents that “teaching is personal,” as the institution’s professors “teach and mentor undergraduates, not only in the classroom.” Students who don’t conform to the race/class/gender worldview, however, seem to receive a different kind of “personal” attention.
3. Groupthink has its effects. Any orthodoxy -- even the race/class/gender approach currently in vogue -- can go too far, especially in an atmosphere when it passes unchallenged, blinding its adherents to injustice in their midst. Academic debates can sometimes seem trivial, and it’s easy to understand the overwhelming temptation that some Duke professors felt last April to do the politically correct thing and denounce the lacrosse players.
This particular behavior, however, had significant consequences. Less than four weeks after the Group of 88 issued their statement, Nifong captured a hotly contested Democratic primary by a mere 883 votes. Given the political and legal fluidity in Durham last spring, it’s hard to imagine Nifong prevailing had 88 Duke professors publicly demanded that he respect their students’ due process rights rather than thanking the protesters who had branded the players guilty.
Instead, of course, the denunciations continued -- and have continued to have an effect. In what could be a first in American criminal law, the actions and statements of accused students’ professors have been cited in a recent defense motion as grounds for a change of venue.
Imagine the reverse of the situation that Duke experienced. In a primary electorate almost evenly divided along racial lines, an appointed district attorney faced two challengers, a weak white man and a strong black woman. A case emerged on campus featuring allegations against members of a black fraternity by a local white woman with a checkered background. The D.A. responded by making dozens of highly inflammatory statements to the national media, going before an all-white crowd to announce that “this case isn’t going away” even though he lacked scientific evidence, and ordering police to violate their own procedures to ensure that the accuser picked out viable suspects before the primary.
Does anyone seriously believe that, under such circumstances, the faculty of Duke -- or that of any other major university -- would have stood idly by, with a vocal minority denouncing the students?
The behavior we’ve seen from Duke’s faculty -- the frantic rush to judgment coupled with a refusal to reconsider -- was all too predictable. The Group of 88’s statement was fully consistent with basic ideas about race, class, and gender prevalent on most elite campuses today. Reconsidering their actions of last spring would have forced the Group of 88, and sympathetic colleagues, to reconsider some of the intellectual assumptions upon which the statement was based.
Duke’s Gustafson recently reflected on what his colleagues had done:
"We have removed any safeguards we’ve learned against stereotyping, against judging people by the color of their skin or the (perceived) content of their wallet, against acting on hearsay and innuendo and misdirection and falsehoods. We have formed a dark blue wall of institutional silence; we have closed Pandora's box now that all the evils have made it into the universe; we have transformed students from individual men to archetypes—to 'perfect offenders' and 'hooligans' -- and refused to keep their personhood as a central component of all this. We have taken Reade, and Collin, and Dave, and posterized them into 'White Male Athlete Privilege,' and we have sought to punish that accordingly."
I’d like to think that most academics entered the profession eager to work with students; and that most professors would never prioritize advancing their own ideological agenda over protecting their students. Yet I see little reason to believe that Gustafson’s words would not have applied had this incident occurred at another major university. And that makes Duke’s failing a failure of the academy as a whole.
