Chafe Chimes In

by Cliopatria

This morning’s Chronicle features an opinion piece by William Chafe on conditions at Duke. I’m a great admirer of Chafe’s scholarship, which I’ve frequently used in my classes. So of all the signatures on the Group of 88’s statement, his disappointed me the most.

Many of Chafe’s current comments are common sense. He argues that based on the undisputed facts, the lacrosse team deserved “censure and disciplinary action”—which, of course, it received, in the form of a cancellation of the season, the forced resignation of the coach, and resumption of the program under restrictions, behavior-related penalties as draconian as virtually any in intercollegiate athletics over the past 15 years. Chafe urges Duke to adopt a stricter behavior code, to forbid things like students hiring strippers—a commendable idea, though probably one that’s not even needed at this stage. And he hopes for a university where alcohol plays a less significant role in students’ social lives, one “about celebrating the ‘playfulness’ and pleasure that infuse the process of debating intellectual and spiritual issues over extended lunches after class,” and “using some of our ‘party time’ to discuss the origins of the universe or existential ethics, even as we socialize at mixers.” I can’t imagine a single professor anywhere in the country would oppose this vision, and I hope Duke can achieve it. But I’m enough of a realist (and surely Chafe is as well) to know that progress along these lines will be fitful at best. Duke could make a healthy start by ensuring that all students live on-campus for all four years, as Chafe recommends, though I gather there are some practical limitations here revolving around space and town/gown tensions in the construction of new dorms.

Chafe’s article is most striking in what it fails to say. As, sadly, has become the pattern, Chafe apparently sees neither a professional nor a moral responsibility for Duke faculty to publicly demand that Durham authorities respect the due process rights of their own institution’s students. (In small progress, I suppose, at least he’s no longer saying “thank you” to student protesters who were proclaiming the lacrosse players “rapists” and chanting “time to confess.”) On police coming to campus dorms to question Duke students outside the presence of their counsel, Chafe says nothing. On local authorities conducting a photo lineup that included only Duke lacrosse players, thereby disregarding the state’s suggested guidelines, Chafe has no comment. Imagine the (wholly appropriate) likely faculty outrage if a prosecutor who needed white votes in an upcoming primary obtained a court order to get DNA, an extraordinary invasion of civil liberties, from dozens of black male students solely on the basis of their affiliation with a campus organization, before even attempting to determine whether these men were at the scene of the alleged crime. Yet on the DA’s decision to compel 46 Duke students to give a sample of their DNA solely on the basis of their membership in a group (and then deeming the results of those tests irrelevant when they didn't help his case), Chafe, again, is silent.

Chafe's attitude toward protecting the civil liberties of Duke students also appears in his demand for a policy that “any student group, on or off the campus, that promotes or engages in racial stereotyping is subject to disciplinary action.” Feminist, African-American, and gay rights groups have been known to engage in racial or gender stereotyping from time to time. Would they be subject to “disciplinary action”? How would this policy avoid the worst aspects of campus speech codes, which have similar aims? Chafe doesn’t say. Indeed, in a strictly technical sense, Chafe’s own article could be deemed guilty of “racial stereotyping.” He reports that “a student group at Duke—the lacrosse team . . . hurled racial epithets at black people.” Yet all we know for sure is that one (as yet unidentified) player, not 46 white members of “the lacrosse team,” did so.

It’s unfortunate that Chafe—as was done in the Group of 88’s statement—seems to interpret events through a preconceived lens, even when contrary evidence exists. “The events that we know took place,” he notes, “reflect underlying realities of student culture, at Duke and at American colleges and universities generally, that cry out for attention.” Chafe's article was written before release of the Coleman Committee report on the lacrosse team. After talking to 10 professors who had many lacrosse players in their classes, significant number of athletic staff of mixed races and genders, and members of the women’s lacrosse team who interacted with their male counterparts, the report did not find a pattern of (or even any evidence of) racist or sexist behavior by the team, suggesting that, other than excessive alcohol use, “the events that we know took place” didn’t reflect the underlying realities of the lacrosse players’ student culture.

Chafe concludes by placing great hope for the Campus Culture Committee—and, since it has two of the Group of 88 signatories as among its members, his confidence is probably justified. The apparent unwillingness of the Duke faculty to take a hard look of how it has responded to events since March 13 continues to disappoint.

Update, 5.15pm: Prof. Chafe emailed to note that, in the article, he specifically commented that"whether or not a sexual assault took place is something we will not know for months and is a task for the criminal-justice system to establish," and therefore it wouldn't have been appropriate for him to comment on such issues. As Cliopatria readers know, I disagree--first of all, because I don't see advocating for due process as taking a position one way or the other on the substance of the charges; and second, because Chafe's position essentially means that the" campus culture" initiative cannot explore the faculty's failure to call for duue process protections for Duke students, since the criminal case will be going on simultaneously to the campus culture initiative. By the way, the DA announced this afternoon that he doesn't expect the trial to occur until next spring--only raising further questions as to why he was in such a rush to secure an indictment.

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Ralph E. Luker - 5/4/2006

KC, The police on campus attempting to interview the lacrosse players _did_ "arouse the hackles" of some civil libertarians on the campus. _You cited_ one of them! Moreover, we had already agreed that the relationship of on-campus students to local police is a murky area of the law. "Something" happened. No need to attack Duke faculty members for reaching a preliminary conclusion to that effect.

Robert KC Johnson - 5/4/2006

I simply disagree. When processes are corrupted at the start, they do not rectify themselves at a later stage.

On the keycard/video, etc.--yes, I've mentioned them, because they're relevant to the procedural point of the prosecutor refusing to consider exculpatory evidence held by the defense (again, for reasons that I find unfathomable--what prosecutor wouldn't want to look at such evidence, if only to get a sense of what the defense had?). If that exculpatory evidence consistent of nasty rumors about the accuser, the effect of this procedural impropriety would be of little consequence. Instead, that exculpatory evidence consisted of all types of tangible and provable items.

Robert KC Johnson - 5/4/2006

On Ralph's question, Stuart Taylor's column this morning (which I'll be posting above) notes that--on the material now released--the trauma nurse report never mentioned consistent with rape: she said consistent with a "traumatic experience."

I'm not denying that a rape might have occurred. I don't know. But whether or not a rape occurred is irrelevant to the question of procedural improprieties. In some ways, if a ape occurred, the procedural improprieties are even less defensible, because they raise a good chance that a conviction would be thrown out on appeal. I see nothing at all inconsistent with arguing for procedural regularity and justice for the accuser, if in fact she was raped.

On Rebecca's point, sure--police try to do this sort of thing, even though they know the evidence will be inadmissable. But (a) this was part of a pattern of procedural dubiousness; and (b) from the standpoint of a Duke faculty member, seeing police sent to the campus itself to question students represented by counsel should have raised the hackles of at least a few civil libertarians on the faculty.

Rebecca Anne Goetz - 5/4/2006

KC--is questioning players without counsel present unsonstitutional, as you say below, or would it dimply render additional evidence inadmissable? There's a difference.

I asked a friend of mine who worked as an ADA and she tells me that attempting to ask questions after counsel has been retained is fairly standard, no matter where you are. Normally it does no good because defendants have been told by their lawyers not to say anything to anybody. She tells me that evidence obtained while speaking to an accused party without a lawyer present isn't always inadmissable--especially if the evidence obtained is exculpatory.

Timothy James Burke - 5/4/2006

Sorry, not buying it. Here you are arguing that interpretations which have not been found in a court of law are facts (e.g., that sending cops to talk to players on campus after they had representation is unconstitutional). Questions of whether the DA's conduct is erratic, etc., will surely be a part of any court proceeding that follows. If you're really advocating that we should not rush to judgement and argue about things yet to be determined in a court of law, that should constrain you as well as anyone else.

You're using your interpretations of details gleaned from a distant remove to construct an argument about what the issue before the faculty should have been, and what kinds of letters they should have written collectively (about due process rather than about rape or race or the culture of athletes).

That's exactly the type of behavior you've been criticizing as a type of behavior. You haven't just been disagreeing with Duke faculty about what is proper behavior towards students accused of criminal conduct. You see this as a case of due process violations against students who you have clearly suggested are likely to be innocent (you've had a lot to say about a student who used a keycard in various places, for example) ; they see it as a case of racial and sexual misconduct by students who are likely to be guilty. That is a very different argument than "It is wrong to voice a strong public opinion about a criminal case in advance of it going to trial".

Ralph E. Luker - 5/4/2006

KC, You still are cherry-picking exculpatory evidence -- evidence leaked by the defense attorneys for the purpose of raising the questions you've raised, casting doubt on the professional competance of the DA, and the moral character and credibility of the accuser. You do systematically ignore the fact that the rape kit examination of the accuser did indicate injuries consistent with her story and consistent with a rape. So, while you accuse the faculty 88 of having reached the conclusion that "something" did happen, there is in fact good reason to believe that "something" did happen.

Robert KC Johnson - 5/4/2006

To answer Ralph's question: yes, it was a known fact at the time (and widely reported in the press) that all players were represented by counsel--what you've, at another point, termed their stonewalling strategy :)

To answer Rebecca's question: the two players ultimately arrested actually lived on campus, as did most of the team. According to every report I've read (admittedly, all coverage might be wrong), the only students that were targeted for questioning were lacrosse players. Absolutely, they had the right to refuse to answer questions without their lawyers present--but that's not the issue. The issue is the state's decision to have the police ask questions. As Chemerensky noted, had a player, under such questioning, said, "I committed a rape," the statement would have been inadmissable. Following the rules doesn't protect the accused; it protects the pursuit of truth.

On the question of waiting for misconduct to come out at trial, that, alas, does little good to the players who have been indicted through what seems to be a considerably flawed process. As I said in my remarks below to Tim, unlike the specifics of the case, on procedural issues we have the facts now (ie, we know that police were sent to campus to questions students w/o presence of their attorneys; we know the indictment was secured w/o asking the defense attorneys if they possessed alibi evidence). We can condemn it now, or we can condemn it a year from now when the trial occurs. On procedural issues where we don't know all the facts now (ie, whether the second dancer received an improper bail reduction in exchange for modifying her testimony), I've avoided any comment, and I agree with you that we have to wait.

On your last point, the statement said, among other things, that 'something happened' to the accuser (an assertion publicly denied by the players), and thanked the protesters who had branded the players rapists. In the specific context of events at the time, this statement went way beyond "recognition that sexual assault is commonplace on college campuses, and now is the time to fight that"--something, after all, that Take Back the Night protests have made clear for 15 years.

Robert KC Johnson - 5/4/2006

My argument--although I fully admit that in real-time blogging (as opposed to my IHE piece) I've occasionally crossed the line, because I have strong feelings on this case--has tried to be as follows:

There are two levels regarding what has occurred at Duke. The first involves the specifics of the case. The second involves the procedures used in the authorities' investigation--the process. There's obviously overlap between the two, but they are separate issues.

There has been a consistent pattern of procedurally irregular acts by the Durham authorities. Some of these (the sending of the police to campus to talk to players represented by counsel) were unconstitutional. Others (the photo array) violated North Carolina state regulations. Others (compelling DNA from the 46 white players before trying to determine whether some weren't at the party) were legal but should alarm anyone who believes in civil liberties. Others (the DA's 70 interviews immediately after the incident) almost certainly violate the NC bar's ethics standards. Still others (the DA's securing the indictment without asking the defense if exculpatory evidence existed, then refusing to meet with defense attorneys to consider the evidence immediately after the indictment, and not waiting for the results of the second DNA tests, which inconveniently weren't to come in till after the primary) contradicted a spirit of fair play and what should be an open-minded search for the truth. Excuses or innocent explanations can be offered for each one of these events individually. But taken collectively, a pattern emerges. And, unlike the issues surrounding the criminal charges, we know what has occurred regarding procedural matters, and can speak more definitively.

On the other hand, I've never claimed to know what happened on March 13, and I've criticized those Duke faculty who either have claimed to know (Baker) or who expressed thanks to those who claimed to know (the Group of 88).

In my mind, not judging the validity of the criminal charges is very different from not speaking out about the procedures being followed. The "nitty-gritty details" in the two areas differ. A procedurally flawed inquiry dramatically decreases the likelihood of us ever discovering the truth, and also raises the possibility of an innocent person being tried or even convicted.

Finally, I believe that in the particular environment that existed in Durham over the past six weeks, the Duke faculty had a moral obligation to speak out far more forcefully than they did to urge regular investigatory procedures being followed in this case. We had a DA whose behavior was erratic, with local political pressure all coming from one direction on whether to indict. From a practical standpoint, Duke as an institution was the only possible voice that could have, perhaps, prevented the inquiry from going off the procedural rails. It didn't do so, and I don't think it served its students well.

Timothy James Burke - 5/4/2006

KC, the odd thing to me about your take on this case, now iterated through many pieces, is the insistence that due process be respected and that this respect requires a degree of circumspection on the part of people at Duke, including faculty.

And yet, in many of your own comments on the case, you've been picking your way through details that are intimately tied up in the criminal charges, often spinning hypotheses and deductions.

I'm not clear why the restraint you wish to impose on others doesn't apply to you as well. I can see saying, "Look, no one should judge much of anything about the criminal charges just yet". I've largely taken that my view myself, and confined myself to reading the cultural and social meaning of one statement plausibly uttered by one of the players. But that's really not what you've been doing: you've been as deep, if not deeper, into the guts of the case as any of the Duke faculty you're criticizing. I don't see how you sustain your ability to comment on the nitty-gritty details while criticizing others for their rush to judgement.

Rebecca Anne Goetz - 5/3/2006

KC, your post says that "On police coming to campus dorms to question Duke students outside the presence of their counsel, Chafe says nothing." Were they questioning lacrosse players who already had counsel, OR were they simply asking Duke students questions? There's a big difference there. Additionally, students represented by counsel can refuse to answer questions without their lawyers present (and their lawyers should have told them that). If I remember correctly, the accused players live off campus, so if the police were asking questions in dorms, then they were likely talking to students not represented by a lawyer.

I'm really not sure that anyone's civil liberties have been violated here. Any misconduct by the prosecutor or his investigators will come to light at trial, and I'm content to wait until the trial to make judgments.

Moreover, I'm still not sure why you're so upset with the 88 faculty members who signed the statement. I can see you wishing that they had signed a different statement, one more to your liking, but I see their support of student protests as an important, but unfortunately belated, recognition that sexual assault is commonplace on college campuses, and now is the time to fight that.

Ralph E. Luker - 5/3/2006

Was it a known fact that all members of the lacrosse team were represented by counsel at the time of the police attempt to ask questions of some of the lacrosse players?

Robert KC Johnson - 5/3/2006

I'm relying on the public comments of Erwin Chemerinsky, now at the Duke Law School but a very high-profile legal mind, on this score. From the DCU blog: "Commenting on the efforts of Durham Police investigators to interrogate lacrosse players without authorization, Chemerinsky stated, 'Once somebody is represented by counsel, the police can't talk to that person without counsel being present.' Any evidence obtained by investigators would be 'clearly impermissible.'"
http://www.dukenewsense.com/blog/2006/04/law-prof-shares-his-thoughts-on.html

To date, I haven't run across anyone who's disagreed with Chemerinsky's interpretation of this particular action. As with other aspects of the case (like the photo array), this is an instance where the DA clearly knew the rules, but elected, for whatever reason, not to follow them. The fact that this particular even occurred on the Duke campus itself, it seems to me, heightened the obligation of the Duke faculty to speak out.

Ralph E. Luker - 5/3/2006

Is it your position that, as a matter of civil liberties, a policeman is not allowed to knock on my door and ask me questions unless my attorney is present?