Blogs > Cliopatria > Paging Atticus Finch?

May 8, 2006 4:02 am

Paging Atticus Finch?

In his column this week, Jason Whitlock, a Kansas City Star writer who regularly appears on ESPN’s Sports Reporters, laments, “If the Duke lacrosse players were black and the accuser were white, everyone would easily see the similarities between this case and the alleged crimes that often left black men hanging from trees in the early 1900s.” Regardless of the truthfulness of the allegations—Whitlock reiterates that neither he nor anyone else now knows what happened—“this case seems like an updated re-enactment of To Kill a Mockingbird.” After detailing the many “uncomfortable" aspects of D.A. Mike Nifong’s investigation, Whitlock argues that the civil rights movement didn’t occur “so that the poor, black and oppressed could surrender the moral high ground and attempt to inflict injustice on the privileged,” and he fears that what is happening in Durham is “justifying a [white racist] mind-set that states: Do it to them because they’d do it to you.” He concludes by urging African-Americans in Durham to reverse course, and start “pressuring the authorities to pursue justice in the Duke lacrosse case regardless of where that pursuit leads.”

Whitlock’s words would have little effect on the likes of Duke Professor Houston Baker, a member of the Group of 88 last heard from demanding that all players on the Duke lacrosse team be expelled from school. Baker has resurfaced to dismiss the recent Coleman Committee investigation of the men’s lacrosse team. The report’s apparent fault? It failed to uncover evidence to support the professor’s previous portrayal of the team as the embodiment of “violent, white, male, athletic privilege.” Baker fumed that the report “says they are model academic citizens -- they've been on the honor roll. But there has been underage drinking. There has been bad behavior.” (The latter claims could probably apply to 80 percent of Duke’s undergrads.) The committee’s report is not “nothing, but it's as close as you can get to nothing.”

It’s worth remembering that the Coleman Committee operated under procedures almost wholly stacked against the lacrosse players: (1) Even though their behavior was being investigated, the players were not invited to testify; (2) Professors, staffers, and other Duke students were allowed to give testimony anonymously, with no representative of the players present to challenge, or even record, a witness’ version of events; (3) The committee’s charge came from an administration that certainly hasn’t bent over backwards to defend its own students. Perhaps, in writing their report, some committee members experienced a twinge of guilt as the abuses of Nifong’s investigation have become manifest, but there’s no evidence that this occurred. Nonetheless, the chair of the committee, Duke Law Professor James Coleman, former (Democratic) chief counsel of the House Ethics Committee, seems to have understood, as members of the Group of 88 have not, the importance of Duke appearing fair-minded in commenting about its own institution’s students. Baker apparently prefers Nifong’s investigating style, recently described by the Raleigh News and Observer as “disturbing” and not “open-minded.”

The investigation found that Duke has a culture of extensive underage consumption of alcohol; and that within that culture, members of the men’s lacrosse team as a whole, if not all of its members, fall at one extreme of that culture. The report also contains two previously unrevealed items: (1) When asked by the campus administration to help temper a high-profile case of the alcohol culture, the lacrosse team obliged—working to curtail Tailgate, a pre-football game drinking party--the lacrosse (and baseball) teams did exactly as asked; and (2) The immediate-after-incident image of a team “out of control,” ignoring warnings from the administration to cease “bad behavior,” or Nifong’s public portrayal of the team as “hooligans,” was false. Instead, the report describes an ineffective Duke bureaucratic structure where administrators responsible for monitoring excessive student alcohol assumption weren’t aggressive enough in making their concerns known. This is not unexpected. In a campus that suffers from an alcohol-excessive culture (which I doubt would surprise anyone who’s ever been to Durham), administrators singling out a few students risked triggering a campus-wide anti-alcohol campaign that might cause more harm than good. There’s no denying that most lacrosse players drank too much in social settings and some were arrogant in doing so; and I expect the Duke administration will use the findings of the Coleman Committee report to, appropriately, institute a new code of conduct that holds athletes to higher standards than other Duke students. Maybe it will even create the kind of campus environment envisioned in William Chafe's recent Chronicle essay, though I’m dubious.

Beyond the items on excessive alcohol consumption (where the context provided put the team’s behavior in a considerably more favorable light than known until that time), the Coleman Committee report—to Baker’s dismay—uncovered virtually nothing bad about the lacrosse players, despite a structure all but established to do so. There was, of course, the comment from a T.A.—two years after the fact—that the players sported “aggressive body language,” a convenient charge because of its vagueness and utter subjectivity. Not only did no other professor or T.A. who taught the players have anything resembling this recollection, but all had nothing but positive things to say about a team whose overall academic performance exceeded that of any other lacrosse team in the ACC, and, I suspect, a randomly selected cross-section of Duke students overall. Given the anti-athlete culture the controversy has revealed in some quarters of the Duke faculty, for all we know, the T.A.’s conception of “aggressive body language” consisted of nothing more than the players wearing lacrosse t-shirts to class. (She admitted that she could not cite a specific incident of “aggressive body language” in any way affecting the class.) Moreover, in terms of social relations, the committee found no evidence of sexist or racist behavior by the lacrosse players, despite a structure that granted anonymity without cross-examination to any and all who wanted to make such allegations. In fact, the committee uncovered copious evidence of commendable behavior, ranging from very high rates of community service to unfailing politeness to athletic staff.

Maybe, as the Duke Chronicledescribed the thrust of the Group of 88’s argument, Duke really is a bastion of “hate, racism, sexism and other forms of backward thinking.” But, if so, Baker and his colleagues should direct their protests to the Duke admissions staff, which, according to their version of reality, is admitting scores of flagrantly racist and sexist non-lacrosse players as Duke students.

Indeed, a striking subtext of this whole affair has been the open contempt in which faculty like the Group of 88 seem to hold many of their students, who (quite beyond whatever occurred in this incident) are guilty of being upper-middle or upper class; joining fraternities and sororities; participating in intercollegiate athletics; concentrating on their careers rather than the life of the mind; drinking too much; and holding ideas deemed inappropriate on issues relating to race, class, and gender. There’s nothing new in academics grousing about students. But at a school like Duke, save for a few superstars, faculty members derive some of their prestige from teaching at an extremely"selective" school. How strange it must be for people like Baker and other members of the Group of 88 to be surrounded by students whom they loathe, while depending on the “intake” of more of them for institutional status.

It might be, of course, that on May 15, Nifong will release a treasure trove of heretofore concealed evidence linking those he has indicted to a crime—in which case the central story will become the likelihood of his myriad procedural abuses preventing a conviction. Otherwise, columns like Jason Whitlock’s raise hope that the national consensus on this story has transformed to such an extent that local officials might return to respecting accepted legal procedures. There’s no chance, naturally, that Nifong will do so, just as there’s no chance that Houston Baker or most in the Group of 88 will abandon their preconceptions. But perhaps either the judge assigned to the case or the North Carolina attorney general’s office might take to heart words like Whitlock’s, or those of their hometown newspaper’s editorial board.

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Irfan Khawaja - 8/4/2006

So as not to leave anything to implication, I didn't say anything in extenuation of the student's email. I thought his email was filth. So is your childish attempt to suggest that I approve of it.

If you don't know whether a DNA seizure without probable cause violates the search and seizure clause of the Fourth Amendment, how exactly is it that you know that a face-value reading of an email constitutes a threat to murder?

You keep tying yourself up in knots, and calling me names, to evade a simple point: you're maintaining a double standard. On the one hand, you won't pronounce until the courts do; on the other hand, you will. Confronted with this double standard, you explode emotionally all over the page but have nothing resembling a cogent response. Your brazen insistence on a double standard doesn't prevent you from accusing other people of maintaining one--the crux of your criticism of KC with respect to the Baker letter. Well I guess that follows. Anything follows from a contradiction.

You can call me whatever you want, but the better part of valor would be to hand up the shovel at last and stop digging yourself deeper into the pit you've dug for yourself. I actually have never claimed to be a "master" of law or logic--simply that I'm competent to discuss them. That's more than can be said of a person whose reflexive response to criticism is to revert to the sandbox and dish up things like "stuff it," "you're a troll," and "you probably approve of vile emails consisting of graphic descriptions of dismemberment, etc."

Actually, that way of putting things insults life in the sandbox.

Irfan Khawaja - 8/4/2006

Since you've seen fit to make these claims public, I think you have the obligation to make the evidence for them public, too.

1. Could you provide evidence of my making "repeated requests" to join Liberty & Power or Cliopatria? How many requests did I make, when, and where?

2. Could you also provide evidence of my having been repeatedly turned down? When did these conversations take place, under what circumstances, and with whom?

3. Finally, how is it that having been repeatedly denied membership at Cliopatria and L&P, I somehow managed--despite my terrible behavior--to get an individual blog at HNN? If your claim of my being denied is evidence of my bad character, why isn't my being invited to do an individual blog evidence of my good character?

Of course the deepest puzzle of all is why the capacity to win popularity contests with people like Ralph Luker and Jonathan Dresner should be the criterion of moral character in the first place.

I see that you've blithely ignored my correction of your earlier claim that I have a Ph.D. from Princeton. As I said, I not only don't have a Ph.D. from Princeton, but have never said I did. You can be quite a stickler for detail sometimes. What about this one?

While I'm in interrogatory mood, let me finish with this: Could you explain how any of this responds to the original question posed at the outset of this post? Or is the point to distract attention from that in any way possible?

Irfan Khawaja - 8/4/2006

"your mastery of logic probably sees no problem with the young man's behavior"

Here it is for you, in quotes. What I attributed to you is equivalent to that, except that my version charitably attributes to you a better grasp of grammar than you actually have: a "mastery of logic" cannot alas "see" anything. But if you'd like a repetition of your own idiot quote, be my guest to it.

You are a master of red herrings, trivia and evasion, but it's long since been established that you haven't the foggiest idea how to respond to the question I asked. The question you ought to ask yourself is why it is that you insist on making such a conspicuous ass of yourself by fastening on trivia, indulging in ad hominem, and steadfastly refusing to deal with the issues.

Irfan Khawaja - 8/4/2006

You claim you "said no such thing."
Sorry, no. You said precisely "such a thing," and the evidence is right there for anyone to see. Well, perhaps "anyone" is too charitable. Some of us seem to have great difficulty reading simple passages in plain English. But it's clear to everyone else--everyone that matters.

As for your "obligations," the idea of your bringing up that term is a joke at your own expense. You don't even have a minimal commitment to honesty, much less any grander conception of "obligation" than that.

A piece of advice for you: don't ever tell me where to go. I'll go anywhere on this site I please. I don't need your say-so to do it, and rest assured I won't ask for it. Expect me to jump in any time you say something that I feel like challenging.

You have a presumptuous streak a mile wide, Luker. Too bad you can't argue your way out of a paper bag. Other people on this site may excuse that. I don't. And I won't, as long as I'm here. If you've got a problem with that, next time try coming up with better arguments.

Irfan Khawaja - 8/4/2006

First you're obliged not to reply, then you're obliged to break the obligation, then you're obliged to re-instate it. Can't quite make up our minds on anything, can we? A man of principle: with a new principle for every occasion.

You know, and I know, that the first quote I offered was an exact replica of the proposition you asserted. Your denial of that is a brazen lie, verifiable to anyone following this thread. Your propensity to lie in such a public fashion should be a warning to anyone who deals with you.

This most recent irresolution--"I won't reply to you, but now I will reply, then I won't"--only mirrors your original and as-yet unresolved contradiction: you can't judge a violation of law until the court renders an official verdict, and you precisely can do so. Will, won't, can, can't: so hard to keep track of all those evasions, isn't it?

You're giving us an excellent portrait of the workings of a disordered and desperate mind. Keep it up. You have no one to embarrass but yourself.

Irfan Khawaja - 8/4/2006


I thought your position on findings of guilt and innocence on criminal matters was that we're to wait until the judicial system gave an official verdict. Where has there been a verdict of guilt in the matter of that email, i.e., of a murder threat?

You can't have it both ways. If you want to call that email a "murder threat" before there has been a trial or verdict, then you have to concede that KC may be right in his claims about the procedural violations committed by the DNA. If you don't have to wait for the machinery of justice to grind to an official resolution before saying "guilty!", he needn't wait before saying "procedural irregularity!"

In fact, the case for saying that the DA violated the Fourth Amendment with respect to seizure of DNA from the lacrosse players seems a lot stronger to me than calling the email in question a murder threat.

To show that an email is a genuine murder threat, you need to demonstrate mens rea with respect to author's intention to murder the person referred to in the email. Who has demonstrated that? Where is the evidence of it?

By contrast, on the Fourth Amendment issue: any search and seizure requires a demonstration of probable cause with respect to the thing or person being searched or seized. If you're going to seize someone's DNA, you have to show probable cause that that person committed a crime. It is not sufficient to say that the person belonged to a group of people one of whom may have committed the crime.

It is simply astonishing to me that this DA managed to get a court order for DNA samples on such pathetically flimsy evidence as his hunch that one of 40+ lacrosse players committed rape. Followed to its logical conclusion, this approach would render the Fourth Amendment's search and seizure clause meaningless. In fact, that strikes me as the most important and yet least discussed element of this case.

Irfan Khawaja - 8/4/2006


I think I'd be putting it charitably if I said that your last few posts on this subject are not exactly an expression of the judicial temperament.

The inconsistency I identified is yours, not Glenn Reynolds. So the responsibility is yours to resolve it--assuming you value consistency. I don't need to consult attorneys on the subject of logic. I teach it.

Does Glenn Reynolds have an argument for why DNA testing should be compulsory in the absence of a showing of probable cause? Does his argument explain why a compulsory DNA seizure is consistent with the Fourth Amendment's search and seizure clause? If he has such an argument, you should be able to explain it without dropping his name as though the mere mention of it should elicit intellectual genuflection from your interlocutors. Because it doesn't. I'm not a lawyer, but I teach at a college of criminal justice, so I hear my share of fallacious arguments from putative legal experts. "Lawyerhood" is not omniscience. I need to hear an argument.

As for what the young man "would have" challenged, are you referring to some legal proceeding involving a formal charge of a threat to murder? I wasn't aware that that charge had been made in a legal context.

At any rate, whether he challenged it or not, I'm challenging it, and challenging it on a principle you yourself have enunciated and now seem to be softpedaling. It was your claim that we say nothing about putative violations of procedure by the DA until the courts held him accountable. On that point, according to Luker, we defer to the courts. If that is so, why should we not be deferring to the courts when it comes to declarations about when someone is guilty of making a "threat to murder"?

You can't answer that question by telling me to "stuff" anything, alas. The "stuff it" command merely tells me--and everyone here--that you lack an answer to a fairly basic question, that you lack the grace to admit it, and that you insist on moral grandstanding despite that.

Irfan Khawaja - 8/4/2006

I see you've dropped your claims about the Fourth Amendment, DNA, and search and seizure. No word yet as to whether you think there was a violation there, or whether you even think that we can competently judge the matter without making appeals to lawyerly/judicial authority. No word expected, either.

I did read the student's email. Since the student was never charged with threatening to murder anyone, mens rea was never established with respect to that crime, and he was never found guilty of it. By the principles you've applied to the DA--let the judicial system run its course before we render judgment--this means we can say nothing about his act. We have to wait for the official verdict to come in.

This is your principle, not mine. If you want to judge the student guilty of intent to murder, you have to repeal your own principle about withholding judgment prior to the end result of judicial proceedings. Sorry, but that is the way logic works, whether you like it or not.

I can also read the intention of your email, and it tells me that you have zero intention of dealing with my argument beyond offering evasions, ad hominem, and appeals to authority.

Irfan Khawaja - 8/4/2006

Jonathan, if you want to get involved in this discussion at all, I suggest you exercise some responsibility and figure out what the subject of the thread was. In fact, it had nothing at all to do with Luker's obsession over that one quote. It had to do with the as-yet unanswered claim I made about the Fourth Amendment.

Is it your view that Luker ever answered that? Is it your view that his subsequent emails were responsive to what I said? Who was it who personalized this discussion in the first place, taking it away from a discussion of legal procedure etc. and indulging in ad hominem?

For that matter, do you have an answer to my query about the double standard in question? If not, what exactly is your purpose in entering the conversation at this late date?

In fact, "replica" will do. One quotation replicates the content of the other. Do you dispute that? If so, could you explain the basis of your objection? A piece of advice for you: don't tell me what word I'm looking for. It's a presumption you can ill afford. You're neither so precise with language, nor sufficiently telepathic, to figure out what's going on in my head.

Do you dispute that the content of the quoted claim was identical to the other? Is any material difference made by the difference in wording?

Since you've sanctimoniously seen fit to intervene here, what exactly is your opinion of the content of what Luker said? Is it your contention that my "logic" expressed agreement with the email in question? Was that an appropriate thing to say?

If you'd like to engage the issue, let's see you engage it.

If we are going to put words in one another's heads, here is what I think would be the most appropriate thought in your case: "I want to engage in moral grandstanding and special pleading for my witless and dishonest colleague. I've seized on one pointless and immaterial issue, disregarding every other malfeasance, disregarding the content of the discussion, and disregarding its context. The one issue is a paraphrase, a perfectly legitimate one, that simply replicates the precise content of a libelous and dishonest charge, but what concerns me is not any of that, but whether the quotation marks enclosed the precise words in question--even though the precise words were later reproduced, and even though what was at issue was the content of the claim. I won't pronounce on whether any of the content was distorted. I'll just focus obsessively on the specific words as though they had no particular content."

Is this the best you can do? It's a pathetic and immoral spectacle.

Irfan Khawaja - 8/4/2006

Luker, once again: What is your answer to the original question I asked, concerning the double-standards in your approach to the law? Trust me, I can ask the question as many times as you can evade it. It only draws more attention to the fact that you are evading it.

While we are on the subject, do you dispute that you were ascribing to me a favorable attitude toward the Duke student's email?

I don't have a PhD from Princeton, by the way. God knows where you got that from; I guess you just made it up. But I realize I'm dealing with a person with an endless capacity for confabulation.

Irfan Khawaja - 8/4/2006

If you want to discuss this issue at all, take it back to the first post on the topic and we'll start from scratch. That will be a discussion. And I'll be there to defend my thesis about the inconsistency in Luker's argument.

I'm not playing cop to anyone. I'm giving an argument that neither you nor Luker have even attempted to deal with.

My description of you as immoral is not slanderous. It is the plain unvarnished truth. You've entered this discussion with the sanctimonious manner of a schoolmaster scolding a child under his charge. Well, I'm not a child, and you're not a schoolmaster. If you had any interest in engaging the substantive issue, you could have. I raised several for you to deal with, all pertinent to this post. You've just decided to duck in, evade all that, and pour out the finger-wagging rubbish of your last post. It's an evasion of responsibility, and it's dishonest. If you want to defend yourself against what I've just said, go ahead. But don't pretend that every use of moral language is "slander" simply because the charge in question happens to apply.

Actually, your description of my claim as "slander" merely raises the initial question all over again for Ralph Luker: can we pronounce on something like "slander" in advance of a verdict or must we wait for a trial and verdict? Any time any of you feel like addressing that question, feel free to do so. But I won't ask your permission to pose it as long as you pretend to engage in a discussion with me but evade what I've said.

As for my cluttering things up, I don't regard it as "clutter." If you do, maybe you're best advised in leaving. No one is forcing you to read this "clutter." If you feel your time is being wasted, then stop wasting it by responding to me. Here we go again, however: the very people who feel that it wastes their time to respond to me can't bring themselves to shut up in compliance with their own dicta.

If you have the authority to remove me, go ahead. But you haven't given a single cogent reason why I'm wrong, and neither has Luker. I know from experience with you that reason-giving isn't your style. But it's mine. If you can't deal with it, then don't deal with me.

I don't need your advice. I didn't ask for it, and in fact I regard as the discursive equivalent of a warm cup of spit. If you want to have a discussion about search and seizure, go ahead. If not, what you're saying is not my problem.

Jonathan Dresner - 5/11/2006

Is this the best you can do?

It's the best I choose to do for you, Mr. Khawaja. I was trying to find you both some way to get out of the metadiscussion and back to your main points. Not my points; I think you're both wasting time and energy on this discussion (you because you're trying to play district and appeals court, not to mention Grand Grammarian and Logic Cop; Ralph because he's talking to you), and I have better things to do, but you're cluttering up "recent comments" so I thought I'd try to help.

It's a pathetic and immoral spectacle.

Hmmm... as a minor contributor to this spectacle, I'll certainly accept "pathetic," but passing judgement on the morality thereof is slanderous; that it's self-slanderous, in part, mitigates it only slightly.

Ralph E. Luker - 5/11/2006

Thanks, yet again, Jon for speaking up. Having already been told that he is not worthy of a response, Some People persist in trolling this blog when he has a little trafficked blog of his own where he is free to rant at will. He is probably resentful of the fact that he was denied admission to this blog community and denied admission to Liberty & Power in spite of repeated requests to join both places. I wouldn't have made that information public except for his refusal to behave like a decent guest in this space as any reasonable guest would ordinarily do. This behavior is a very good example of why this person was denied admission to this blog community and to Liberty & Power.

Ralph E. Luker - 5/11/2006

Thanks, Jon, for explaining to He Who Knows All that there is a difference between a quotation, where quotation marks are legitimately used, and a paraphrase, whether the paraphrase is a legitimate or an intentionally negative one, where they are not used. One would have thought that Knowing All with a Princeton Ph.D. would have learned that elementary bit somewhere along the line. The Master of Law and Logic missed out on that lesson somewhere.

Jonathan Dresner - 5/11/2006

"first quote I offered was an exact replica of the proposition you asserted".... Oxymoron, if my withered logic doesn't fail me.

The word you want, Irfan, is "paraphrase" and the response you're looking for is "sorry, I was trying to be amusing and make a point. I failed, and my refusal to admit that is making me look silly."

Ralph E. Luker - 5/10/2006

You lied by attributing words to me that I did not say. You are unworthy of further reply.

Ralph E. Luker - 5/10/2006

Since you've already violated any respectable rules of evidence by creating quotations and attributing them to me, when I said no such thing, your lack of intellectual integrity obliges me to refuse any further exchanges with you. You'd be better served by going away and taking your disgrace with you.

Robert KC Johnson - 5/10/2006

I don't think I give the student email a broad or generous reading--I hope I don't, anyway. I think it's repulsive; crude; any other bad adjective you can think of. But even Nifong didn't interpret the email as a threat to murder.

With Baker's letter, I admit: I don't think it's unreasonable to assume that a professor of English, holder of an endowed chair, means what he says in an open letter to the college administration that he plans to publicly disseminate. (Provost Lange certainly held Baker to this standard.) I agree completely that your interpretation of what he said is far more rational than what he wrote. I actually agree completely with what I think is the position that you outlined in your interpretation in his letter.

There is a difference of context here--a public letter vs. a private email. Baker, to my knowledge, didn't respond to Lange's retort to claim that he was misunderstood; McFayden's defenders have pointed to the American Psycho reference, which at least suggests the plausibility that the writer didn't intend his words literally. Regardless, there's no idea that he'll get some sort of "pass" on the email--his decision to press the send button will haunt him for the rest of his life. The dangers of using email . . .

Lastly, there's a difference of significance. Based on what we saw from the Coleman Committee report, it would be hard to say that the sentiments in the McFayden email reflect the basic attitudes of the lacrosse team. There's a good deal of evidence, however, that lots of faculty on the Duke campus agree with Baker.

Ralph E. Luker - 5/9/2006

Professor Khawaja, You've just put quotation marks around words that I never said. So much for logic, law, scholarship, intellectual competence. You've undone yourself.

Ralph E. Luker - 5/9/2006

It's a good thing that you speculated about what 99.9% of readers of Baker's letter _would_ think, rather than claiming that you know how 99.9% of Baker's readers -do- think.
And, so, does it come down to this: that you give the student's e-mail a broad, generous reading, while I give it a narrow, literal reading; you give Baker's letter a narrow, literal reading and I give it a broad, generous reading?

Robert KC Johnson - 5/9/2006

I suppose at least I should be glad that we're no longer discussing my having "mischaracterized the words of my rhetorical opponents" . . .

On the email: if it was a threat to murder, he should be charged. That even Nifong (who certainly can't be accused of being bashful on going after the lacrosse team) hasn't charged him suggests that viewing the email as a threat to murder is an overstatement. And certainly the fact that there is a cultural reference questions whether the email (however repulsive) should be interpreted literally.

As to whether I think McFadden should have been suspended: I don't know. I'm very troubled by a university suspending a student based on the content of an admittedly crude and repulsive email, but that no recipient could seriously believe was a threat to murder. But certainly if the university is going to claim it was a threat to murder, it has to apply that standard across the board: any Duke student who approvingly quotes or plays off any vile rap lyrics in an email would similarly have to be suspended. In the event, I think that his being suspended was probably the best thing both for him and for Duke, but it doesn't mean that I'm not troubled by the precedent.

Getting back to the "moral asymmetry" point where this thread started: I wouldn't want to have dinner with either of them, but to me, there's a significant difference between an email written by a student who was probably drunk that's repulsive in tone and content but that no recipient would interpret literally and the public letter of an endowed chair that even his own institution's provost called a statement based on "prejudice," which every recipient would interpret literally.

Robert KC Johnson - 5/9/2006

Ralph, I certainly take your word for it. But the fact remains that an English prof with an endowed chair wrote "the team and its players" should be dismissed (not suspended). He released this as a public letter the day he wrote it. I don't see how anyone reading the letter who didn't know Baker (and since he released it publicly, 99.9% of the people reading it wouldn't know him) would have interpreted it in any way other than what he wrote.

Ralph E. Luker - 5/9/2006

Oh Master of Law and Logic:
1) I don't know if there was a violation of appropriate judicial practice on the DNA evidence. I know that some attorneys claim that what happened ought to be more commonly practiced, but that some legal experts such as yourself object.
2) A simple reading of the e-mail yields a threat to murder. I made no claim that he was charged with anything, but your mastery of logic probably sees no problem with the young man's behavior. Suit yourself.
3) You have become a Troll.

Ralph E. Luker - 5/9/2006

I suppose that I should admit that I've known Houston Baker for, oh, about 45 years, though I've seen little of him since we were first allied in Louisville's civil rights movement. I can assure you, however, that he was _not_ calling for the ouster of the black lacrosse player from the Duke student body. He _was_ calling for the suspension of all persons -- lacrosse players or not -- who were responsible for the events at 610.

Chris Lawrence - 5/9/2006

Again, it depends on whether or not you believe the African-American player participated in the "silenc[ing]" (I assume this is Bakerese for the ordinary English word "cover-up"); Baker apparently believes that even players not present at the party had material information that was not provided to the authorities, so it stands to reason that all 47 players might be "silence[rs]" and thus people who ought to be expelled. I certainly don't see any part of the letter that excludes the black player (and considering he plays a "white" sport like lacrosse, perhaps he's not "authentically black" enough for Baker anyway).

Then again, maybe Baker was just on a rhetorical roll and spewing hyperbole he didn't really believe, in which case he owes a lot of apologies.

Ralph E. Luker - 5/9/2006

Irfan, The text of the e-mail is a declaration of intent. I recommend that you read it. I haven't soft-pedaled anything. If the young man didn't compose the e-mail, let him say that. If he meant something other than what he wrote, let him say that. If someone else composed the e-mail and sent it from his account, let him say that. Short of some claim like that, you've got no case and neither your credentials in logic nor your teaching in a college of criminal law nor your endless words make one whit's worth of difference.

Ralph E. Luker - 5/8/2006

Irfan, You may want to take your argument up with an attorney, like Glenn Reynolds, who favors obligatory DNA testing in all cases such as this. Btw, were there any question about who sent the e-mail and whether it made a threat to murder, as it clearly did, I suspect that the young man who sent it would have challenged the conclusion. That's not even in doubt, so take your "no rush to judgment" on that one and stuff it.

Ralph E. Luker - 5/8/2006

What you dismiss as "crude" was, in fact, a threat to murder. That's beyond "crude" and your pitiful attempt to exempt that as a copycat from a contemporary film ought to be beneath you. Maybe he was drunk -- so are drunk drivers -- but drunk drivers are not held innocent because of their insobriety.

Ralph E. Luker - 5/8/2006

Frankly, I don't believe that you believe what you just said. Did the accuser say the black lacrosse player had attacked her? Did Nifong oblige him to have a DNA test? Get real, KC. You've gone over the cliff on this one.

Robert KC Johnson - 5/8/2006

Baker's diatribe is littered with denunciations of whites. But it's also littered with denunciations of athletes and males. In his paragraph, he doesn't call for the explusion only of white players--his phrasing is "the team itself and its players." So I presume he was calling for the explusion of all members of the team, including the one African-American player.

I suppose the question would be whether Baker's "prejudice"--to use Provost Lange's term--applied to male athletes even if they weren't white. He's an English prof with an endowed chair. So I don't see anything wrong in taking him at his word, and he said he wanted the "team and its players" expelled. This was not a letter that suggested a figure drawing subtle distinctions.

Robert KC Johnson - 5/8/2006

Nowhere in the above post or at any other time have I criticized the Duke administration for implementing its policy of suspending students charged with felonies. You quite properly note, "I don't see what objection you can have with the administration following its own rules of procedure." I have none. Nor have I expressed any.

As to the McFadden email, when you posted on it (April 6) after it first was revealed, I wrote the following in the comments: "If the Duke president were smart, he'd use this entire affair to decide that it might serve the best interests of all involved not to revive the lacrosse program. No one's entitled to a sports team, especially in the Title IX environment, when--for very good reasons--there's mandated gender equality in intercollegiate sports. Interpreting the facts in the most benign manner for the lacrosse team, their behavior has brought shame to the institution."

I've since changed my mind on this point, in large part because of the new facts revealed: the findings of the Coleman Committee Report, which showed that the image of the lacrosse team that the Duke administration and faculty never challenged (Nifong's "hooligans" claim) was, at the very least, reamrkably one-sided; and the blatant procedural irregularities of the investigation, which give me grave doubt that a punishment of permanently terminating the program would be justified.

Regarding the email itself, we now know (as was not understood at the time, at least by me, since I hadn't seen the film) that the email was a takeoff from a scene in American Psycho (a film, ironically, that's taught in at least two Duke classes, as an insight into contemporary American culture), not the musings of a homicidal maniac (as I, at least, thought at the time). Personally I find the email "repulsive," the adjective I used in my Inside Higher Ed piece. But there's much in contemporary culture that I find repulsive. If Duke wants to institute a policy of suspending any student who writes a crude and graphic email, they're obviously entitled to do so--just as they're entitled to institute a policy of suspending any student who's convicted of underage drinking. But I'm guessing that McFadden isn't the only Duke student to have ever penned an email with crude and graphic content. If so, there's a significant due process angle here. Given the atmosphere on campus, McFadden was probably right not to fight his suspension. But unless Duke regularly suspends people who use such language from the crudest aspects of contemporary culture in emails (rhetoric of some rap songs come to mind), I doubt that McFadden's suspension could have been upheld had he challenged it. It seems to me that neither Duke nor any other college can institute policies but apply them only to unpopular groups on campus.

In that respect, I do see a moral asymmetry between a professor who publicly calls for the expulsion from school of more than 40 students citing in part the fact that they are male athletes of "privilege" and a college's choosing to suspend a student for writing a crude and graphic email. In this asymmetry, however, I do not tilt toward Prof. Baker, and fully agree with Provost Lange's characterization of Baker's remarks as a statement of "prejudice."

Ralph E. Luker - 5/8/2006

I'd say that, under the circumstances, three student suspensions shows remarkable and appropriate restraint by Duke's administration.

Ralph E. Luker - 5/8/2006

So far as any one of us on the outside can make an informed guess, only 3 members of Duke's lacrosse team have been suspended from school. Two of those are probably the two students who have been charged with a felony. That follows precident at Duke, where students charged with a felony are suspended until the case is decided. I don't see what objection you can have with the administration following its own rules of procedure. The third student who probably is suspended is the author of the notorious e-mail. Frankly, KC, for all the thousands of words you've poured forth about this case, I am stunned that you have _never_, not once, expressed any surprise, shock, anger, bewilderment or outrage about the kind of sentiment expressed in that e-mail. You've had many, many harsh things to say about Houston Baker's letter, but _not one word_ about that student's e-mail. There's an moral assymetry there somewhere, isn't there? Baker expresses an opinion about a matter of student discipline and you storm the universe in protest. A student threatens the cruelest sort of felonious revenge and KC can't find a word of rebuke.

Ralph E. Luker - 5/8/2006

KC, Tell me again that you believe that Houston Baker was demanding the dismissal of the lone African American lacrosse player from the Duke student body. You don't believe that for one minute.

Robert KC Johnson - 5/8/2006

Thanks for the recommendation on a possible career in law--but I'm happy as a professor!

Robert KC Johnson - 5/8/2006

I realize I didn't answer a couple of the questions here.

On the lenience of the Duke adm. regarding the lacrosse team's "priors" (as far as I know, these "priors" involved not gun-running or embezzlement but alcohol) the Coleman Committee report, p. 16, provides a helpful table. In fall 2005, there were 201 cases of Duke students in off-campus legal matters involving alcohol. 4% of those involved lacrosse players--reinforcing the point I noted in my post that in an alcohol-heavy environment, team members fell at one end of the scale. If Duke wants to institute a non-lenient policy regarding underage alcohol and run-ins with the law, I have no problem with that. But I suspect that the parents of 193 non-lacrosse udergrads (and this is for fall 2005 alone) would. In short, what you would call "remarkable restraint" I would call an unsurprising reaction from an administration that knows a problem exists (underage consumption of alcohol on campus) but doesn't, for practical reasons, want to follow a punitive policy.

On "legal rules of evidence and judicial process will constrain District Attorney Nifong, but that hardly affects your account of things." These legal rules of evidence didn't constrain Nifong in his 70 interviews immediately after the event, several of which seem to have violated NC ethics guidelines on a prosecutor's public comments. Nor did these "legal rules of evidence and judicial process" guide Nifong's "disturbing" (N+O's adjective) decision to disregard state guidelines regarding the photo array. So I'd say Nifong has done a pretty good job of not following "legal rules of evidence and judicial process" thus far--which has been my central complaint about this process from the beginning. But, as I noted in my comment, Nifong may in fact have a "treasure trove" of evidence.

On, "There simply is _no_ evidence that Duke faculty members "loathe" their students, as you claim here." I guess we disagree. I don't see any other way of reading the Baker letter reproduced below and not saying that he "loathes" the students of which he wrote. He obviously doesn't loathe all of his students--I never claimed that he or his colleagues did.

On, "The female accuser was also a student -- at NCCU -- where's your empathy for her?" I am unaware of a single occasion in which the accuser has not been treated exactly as she should have been (and, perhaps, then some) by the authorities, or by the NCCU administration. (I've had no criticism of the NCCU adm's response--I think that the school's general defense of its own student is to be expected.) Indeed, Jesse Jackson has promised to pay for the accuser's tuition, even if it comes out that she's lied. The DA has said he's going to attempt to use the rape shield law to prevent introduction to trial of the accuser's previous decisions to file police reports, which were never pursued, of a three-man gang rape and, later, of her husband threatening to kill her. So it's unclear to me, at this stage, how the accuser has been treated unfairly by the process. If it's established that a crime was committed against the accuser, of course she would have my sympathy--and all the more so if Nifong's procedural irregularities prevent the guilty from being punished.

chris l pettit - 5/8/2006

A bunch of ideological HISTORY professors talking about highly technical legal standards...such as the "reasonable man" qualifications. You know what a "reasonable man" is? Law professors (including myself) simply draw a stick man on the blackboard and point to it as the only "reasonable man." It is entirely up to who is interpreting the standard...namely the judiciary making the determination. What is emphasized is the fact that those trained in law and legal theory are those qualified enough to interpret the standard on a case to case basis...not the common unwashed masses who think they are reasonable in any way. It seems even Dr. Luker has gotten tired of KCs ideological nonsense and manipulations of the english language. On second thought KC, given the disgrace and failure that is the US legal system...where law does not exist and rules and regulations enforced by ideological misfits are all that exist...and the fact that all lawyers do is manipulate the english language and betray the essence of the rule of would be perfect as a lawyer...


Robert KC Johnson - 5/8/2006

Ralph, Duke provost Peter Lange described himself as "disappointed, saddened and appalled" by Baker's letter, which he termed a statement based on "prejudice."

I agree with Chris that it's not unreasonable to interpret the words of a professor of English--a holder of a chair, no less--as they were written. "Surely the answer to the question must come in the form of immediate dismissals of those principally responsible for the horrors of this spring moment at Duke. Coaches of the lacrosse team, the team itself and its players, and any other agents who silenced or lied about the real nature of events at 610 Buchanan on the evening of March 13, 2006." The entire Baker letter ( contains statements treating the lacrosse players as a group. Beyond the fact that, as of March 29, he felt confident in terming Duke lacrosse players guilty of "abhorrent sexual assault" and his comparison of the Duke administration's description of the event as "deplorable" to "Miss Ophelia in Harriet Beecher Stowe's Uncle Tom's Cabin, saying that slavery was "perfectly horrible,'" here are the immediate paragraphs preceding Baker's call:

"There can be no confidence in an administration that believes suspending a lacrosse season and removing pictures of Duke lacrosse players from a web page is a dutifully moral response to abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us.

"How many mandates concerning safe, responsible campus citizenship must be transgressed by white athletes' violent racism before our university's offices of administration, athletics, security, and publicity courageously declare: enough!"

"How many more people of color must fall victim to violent, white, male, athletic privilege before coaches who make Chevrolet and American Express commercials, athletic directors who engage in Miss Ophelia-styled "perfectly horrible" rhetoric, higher administrators who are salaried at least in part to keep us safe, and publicists who are supposed not to praise Caesar but to damn the unconscionable ... how many? Before they demonstrate that they don't just write books, pay lip service, or boast of safe citizenship ... but actually do step up morally, intellectually, and bravely to assume responsibilities of leadership for such citizenship. How many?

"How soon will confidence be restored to our university as a place where minds, souls, and bodies can feel safe from agents, perpetrators, and abettors of white privilege, irresponsibility, debauchery and violence?

"Surely the answer to the question must come in the form of immediate dismissals of those principally responsible for the horrors of this spring moment at Duke. Coaches of the lacrosse team, the team itself and its players, and any other agents who silenced or lied about the real nature of events at 610 Buchanan on the evening of March 13, 2006. A day that, not even in a clichéd sense, will, indeed, always live in infamy for this university."

I don't see anything in the previous para's that suggests Bakewr didn't mean exactly what he said in the final para. quoted.

Ralph E. Luker - 5/8/2006

To put a fine point on it, Chris, do you honestly think that any reasonable person who was familiar with the situation and read what Baker wrote would conclude that he was calling for the expulsion of the lacrosse team's one African American player? Once you admit that he was not calling for the expulsion of that one athlete, you have to go on to recognize that he was calling for the expulsion of the lacrosse team players and any other parties who were responsible for the events at 610. That's not a call for the expulsion of the whole team.

Robert KC Johnson - 5/8/2006

Just one more point on W/M, since in light of Chris' post I don't think there's any doubt about what Baker said. Here's a quote from W/M's original article:

"Its backers also argue that it deserves unqualified support because it is weak and surrounded by enemies; it is a democracy; the Jewish people have suffered from past crimes and therefore deserve special treatment; and ***Israel’s conduct has been morally superior to that of its adversaries***. On close inspection, none of these arguments is persuasive. There is a strong moral case for supporting Israel’s existence, but that is not in jeopardy. Viewed objectively, its past and present conduct offers no moral basis for privileging it over the Palestinians." *** are added

I think what happened here was a confusion of wording: in their LRB letter, M/W were summarizing their original LRB article, which in turn was summarizing their Kennedy School working paper.

Ralph's absolutely right that their LRB reply letter didn't state that they were comparing Israeli behavior to that of Israel's "adversaries," but this is a main theme of both their original LRB piece and their working paper. I should have just picked a quote from the original rather than their summary thereof--sorry abt. that.

Robert KC Johnson - 5/8/2006

On Chris' point--one would especially hope this in the case of a letter by an English professor that he immediately publicly released to the press.

Baker certainly has had ample opportunity since late April to clarify that when he said "the team itself and its players" he didn't mean to say every member of the team should be expelled. I'm unaware he's done so. He certainly didn't say "the team itself and some its players."

On the hometown newspaper point--just to add an item to Chris' comment: based on my time as a (sort-of) resident of Chapel Hill (from when my sister lived there), I always considered the N+O the hometown newspaper of Raleigh, Chapel Hill, and Durham--just as I would consider the Boston Globe the hometown newspaper of Boston and Cambridge. The N+O has certainly covered this case more extensively than the Durham newspaper, or any other paper.

Robert KC Johnson - 5/8/2006

I replied below: in a sign of absent-minded professorship, I was looking for replies to Manan's earlier post and not mine--sorry about that :)

As I said below, I'm not the first person who made this characterization of M/W's words (their whole article was about the Middle East; they weren't talking about the behavior of countries in Central Africa).

Chris Lawrence - 5/7/2006

It doesn't? I'll admit the period comes in an inopportune point in the thought, but the second sentence says the immediate dismissals should apply to "the team itself and its players, and any other agents who silenced [sic] or lied about the real nature of events at 610 Buchanan on the evening of March 13, 2006."

I guess if you believe that the "real nature of events at 610 Buchanan" are consistent with the players' version of said events, then you could argue it is not an argument for expelling the whole team (even that is ambiguous, as the "silenced or lied" part may only apply to the "others" Baker is casting aspersions on, and not to the coaches or players), but I doubt Baker really believes the players' story wholeheartedly.

The bottom line: a reasonable reader could parse that paragraph as calling for the expulsion of all the players on the lacrosse team, in addition to these other nefarious silencers and liars. Whether or not Baker meant that is another issue entirely (although one would hope that an English professor would write sentences that could not be so easily misinterpreted).

Ralph E. Luker - 5/7/2006

The statement does _not_ call for the immediate dismissal of the whole lacrosse team, but even so my apology to KC. I googled Baker's statement and it was his call for terminating the lacrosse program that was featured. KC has yet to respond to his characterization of M & W's words about Israel, most states, and its immediate neighbors.

Chris Lawrence - 5/7/2006

Well, the (Durham) Herald-Sun and (Raleigh) News and Observer both compete for readers in Durham, the N&O has an office in Durham, and it publishes a Durham-specific supplement, so I'd say the N&O qualifies as a "hometown" newspaper. The N&O has also been by far the more accuser-friendly and strident of the two papers in its coverage of the alleged rape, so its criticisms of Nifong are probably more stinging than had they come from the H-S or the Duke Chronicle.

And, Ralph, here's what Baker wrote in his letter of infamy:

"Surely the answer to the question must come in the form of immediate dismissals of those principally responsible for the horrors of this spring moment at Duke. Coaches of the lacrosse team, the team itself and its players, and any other agents who silenced or lied about the real nature of events at 610 Buchanan on the evening of March 13, 2006."

It is hard to read the term "immediate dismissals" as anything other than calling for players' expulsions.

Ralph E. Luker - 5/7/2006

KC, I hate to say this, but this is the second post this weekend in which you have mischaracterized the words of your rhetorical opponents. Houston Baker did _not_ call for the expulsion of the lacrosse team members from the University. He called for disbanding the lacrosse program. That's quite a different matter, unless you and they regard lacrosse as the essence of an undergraduate experience. Duke's administration has exercised remarkable restraint in dealing with the lacrosse team members, including the 15 of them with priors -- too much for Baker -- but you'd never know that from your account of events. Legal rules of evidence and judicial process will constrain District Attorney Nifong, but that hardly affects your account of things. There simply is _no_ evidence that Duke faculty members "loathe" their students, as you claim here. The female accuser was also a student -- at NCCU -- where's your empathy for her? Also, btw, the Raleigh News and Observer is not the "hometown newspaper" -- that would be the Durham Herald.

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