Press Release No. 1
Friends of Duke University
Date: July 19, 2006
Subject: Publication of open letter in the Duke Chronicle
The Friends of Duke University consists of alumni, parents and friends of Duke who are deeply concerned about the University’s response to the lacrosse controversy. We want to ensure fair and equitable treatment for both the University and the lacrosse team in every public forum and feel that the University itself has not done enough to pursue it.
For the past few weeks, we have been speaking out on our own by challenging the numerous falsehoods encountered in the media and elsewhere and by disseminating accurate information about Duke and the lacrosse case. Our website: http://friendsofdukeuniversity.blogspot.com has been a hub of such activity. Although we have been happy to take a leadership role in speaking out on behalf of Duke, we have done so with the recognition that our efforts have largely gone toward filling a vacuum left by Duke’s own leadership. We believe Duke University needs to stand up for itself and for its students.
Today, we are pleased to announce that we have published an open letter to the President and Board of Trustees of Duke in the University’s newspaper, The Chronicle. The open letter asks Duke to do four things: (i) speak up for its students; (ii) be fair to the lacrosse team and encourage others to do so as well; (iii) speak up for Duke; and (iv) accept the challenges presented by the lacrosse controversy.
Our purpose in publishing the open letter is not to confront or embarrass, or to turn our frustration inward. Instead, our purpose is to motivate, encourage and offer support. We appreciate the efforts of President Brodhead and the rest of the university administration so far. It is our hope that, by demonstrating our support, they will feel confident enough to respond more proactively and less reactively.
We are in no way apologists for the acknowledged inappropriate conduct of the lacrosse team. We want reform and we believe that everyone in the Duke community, including the team members themselves, do at this point as well. However, any reform has to recognize that many of the same problems identified with the team exist within the larger Duke community and are not confined to any one group. Precisely how Duke chooses to confront the problems brought to light by the lacrosse controversy will say more about the University’s values than its mere decision to condemn certain behavior.
Many critics on campus have used the lacrosse team’s troubles as an opportunity to call attention to issues of concern to them. We express no opinion as to those particular issues nor wish to pick fights with these critics. We simply ask that these issues be evaluated on their own merits and not be advanced through the exploitation of other’s misfortunes.
We believe that people outside of campus should not be the only ones speaking out about the gross injustice and corrupted process to which Colin Finnerty, Reade Seligmann and David Evans have been subject. Duke leaders should squarely condemn the unethical, unprofessional and immoral abuse of legal process by District Attorney Mike Nifong and others associated with him. Specifically, this conduct includes: (i) prejudicial and false extrajudicial comments; (ii) denial of due process through a suggestive lineup procedure; (iii) improper contact with persons represented by counsel; and (iv) refusal to examine exculpatory evidence. Duke itself must do everything it can to ensure that its students are protected from unfair and unjust treatment during their time at the University. We understand that Duke does not and should not have any direct influence on matters pending before the criminal justice system. We understand if Duke is not able to express an opinion about the ultimate outcome of these matters either. However, Duke does have the power of moral suasion at its disposal and must use it.
Duke University inspires passionate loyalty not only to a school, but to a set of principles and values. Our group essentially coalesced from like minded people associated with Duke who heard each other speaking out and decided to do so together. We are not the only such group. There is a reason for this loyalty and we want everyone who does not know it to find out and for everyone who does know it to help us. We will continue to speak up for Duke and its students and hope that, with our encouragement and support, the administration will as well.
Open Letter to President Richard Brodhead and the Duke University Board of Trustees
Ladies and Gentlemen:
We address you as members of the Duke family, brokenhearted at the unfair treatment and portrayal of the Men’s Lacrosse Team—and by Duke University’s acquiescence in this treatment. We believe Duke cowered in the face of media pressure engineered by the unethical and possibly illegal conduct of the Durham County District Attorney’s Office. When these allegations first made national headlines, the lacrosse team captains told you and the Duke community that they were “totally and transparently false.” All publicly released case documents confirm this stance. And according to reports from reliable members of the media, including Dan Abrams ’88, all evidence in the prosecution’s discovery file supports the team’s unwavering position: no sexual assault occurred. Yet Duke has remained hesitant in its support. In the process, it has sacrificed its own students and values.
We believe that Duke needs to repair the damage caused by the actions described above. Accordingly, we respectfully ask that you consider the recommendations below as official acts of the University.
Speak up for your students
We are sure that everyone, at least at Duke, can agree that the accused Duke students deserve justice through a fair and regular process. Right now, they are not getting it. Not by a longshot.
We believe that the Duke administration has a positive obligation to ensure that Duke students are not singled out for unjust treatment by local authorities. Would a parent stand by while their child was abused? Not even say anything? We think not. Yet, that is precisely what Duke has done in this case.
We fear that the administration’s passive response to the district attorney’s behavior will lead future students to think twice before attending Duke. Therefore, we urge a public statement that Duke expects fair administration of criminal justice. All in Durham should be appalled by the following conduct by District Attorney Mike Nifong:
• Made Prejudicial and False Extrajudicial Comments. Rules 3.6 and 3.8(f) of the North Carolina Rules of Professional Conduct prohibit attorneys from making extrajudicial statements likely to prejudice a pending case. But Mr. Nifong: (1) materially misrepresented the facts by referring to evidence that did not exist; (2) called the accused “hooligans” and attested to their guilt; and (3) invited the inference of guilt from the exercise of the their civil right to representation by counsel. Each of these arguments, if made in court, would be sanctionable and grounds for mistrial.
• Denial of due process through a suggestive identification procedure. In order to generate names for his indictments, Mr. Nifong ordered an identification consisting of only photos of lacrosse players, violating guidelines set down by North Carolina’s Actual Innocence Commission. In further violation of these standards, the alleged victim was told that the photographs were of people who attended the party. As one noted criminal law scholar has pointed out, this procedure “strongly suggests that the purpose of the identification process was to give the alleged victim an opportunity to pick three members of the lacrosse team who could be charged. Any three students would do; there could be no wrong choice.”
• Improper contact with persons represented by counsel. Mr. Nifong has been quick to claim credit for conducting the police investigation. On April 14, police officers went into Duke dormitories to question Duke students who were known to be represented by counsel. This action violated Rule 4.2 of the North Carolina Rules of Professional Conduct.
• Refusal to examine exculpatory evidence. Rule 3.8 of the North Carolina Rules of Professional Conduct forbids prosecutors from intentionally avoiding “pursuit of evidence merely because he or she believes it will damage the prosecutor’s case or aid the accused.” On multiple occasions, defense attorneys offered to provide Mr. Nifong with exculpatory evidence strongly suggesting innocence. Mr. Nifong refused to accept or even look at this evidence.
Nicholas Kristof recently observed, “As more facts come out about the Duke lacrosse scandal, it should prompt some deep reflection.” The New York Times columnist compared Nifong’s behavior to the Scottsboro Boys prosecution, an event commonly held up as the standard of a prejudice-based miscarriage of justice.
While the university can express no opinion about the ultimate outcome of pending legal matters, we urge Duke to use all its influence and moral suasion to ensure that these three Duke students receive justice through a fair process. We also call upon Duke to formally demand that Mr. Nifong immediately correct, to the extent now possible, the grave errors that he has committed to date.
Be fair to the lacrosse team and encourage others to do so as well
At this point, no fair-minded person could any longer believe that a rape occurred. However, we are in no way apologists for the acknowledged conduct of the team. But necessary reforms must recognize that many of the team’s problems exist within the larger Duke community. Therefore, any specific measures taken against the lacrosse team must be consistent with Kantian ethics, including a commitment to proportionate justice and treating the team as the end, not as the means.
So far, the university’s treatment of the team has been reactive rather than proactive. Only after the season was cancelled and Coach Mike Pressler fired did the university appoint a committee to investigate the team’s conduct. This committee, chaired by Professor of Law James Coleman, reported on “a cohesive, hard working, disciplined, and respectful athletic team” whose members exhibited no evidence of racism or sexism. While detailing the team’s faults, all related to excessive drinking, the committee found much to be proud of as well. It concluded, “Between 2001 and 2005, 146 members of the lacrosse team made the Academic Honor Roll, twice as many as the next ACC lacrosse team. The lacrosse team's academic performance generally is one of the best among all Duke athletic teams.” The Coleman Report was the most thorough, critical, and unsentimental accounting of the team and its conduct. In announcing its decision to reinstate the team, the university has done little, if anything, to call attention to the larger, more positive, context the committee found. A resolution to look at oneself, warts and all, should not omit the “all.” As a result, Duke has missed an opportunity to show its true values. If we are not fair to ourselves, no one else will be.
Psychologists tell us that dysfunctional families often single out one member whose problems, real or supposed, become a source of unity for the rest, leaving the underlying sources of dysfunction unaddressed. Many critics on campus have used the lacrosse team’s troubles as an opportunity to call attention to matters of concern to them. We do not wish to pick fights with these critics. We simply ask that their concerns be evaluated on their own merits, rather than by exploiting others’ misfortunes. Since the lacrosse team’s shortcomings are not confined to any one group on campus, we should confront them without stigmatizing any one group. Only then can our family realize the growth that all of us seek.
As for those who were quick to prejudge the accused, particularly the group of 88 professors who signed an earlier call to action, we look upon them not with malice. Instead, we ask that they now count themselves among those victimized by this spring’s false accusations. We hope that all will realize now that our enemies are not each other, but those who would profit from the unfair denigration of our university and its members.
Speak up for Duke
Duke University is an exceptional school with an exceptional record. Recent events provide an appropriate occasion to consider the things we need to do better. However, this soul searching should be designed to make a great university even greater, rather than an attempt to scapegoat certain of our members.
The campus has suffered through hack journalism that crams events into preexisting templates and exploits preexisting prejudices to create artificial controversies. The result has been portrayals of both Duke and Durham that are filled with inaccuracies. We feel that the university has quietly acquiesced in these false characterizations, rather than actively asserting the truth.
Duke students conform to none of the media stereotypes of racial or economic exclusivity. They are 40% minorities, including 12% African American. Forty percent receive financial aid, with the average annual grant totaling $20,000. Duke students are elite only in the quality of their character and achievements.
Far from aloof, Duke is a responsible, generous, and engaged citizen of Durham. Here are just a few of the many ways Duke contributes to the Durham community:
• The Duke-Durham Neighborhood Partnership has raised $10 million over the last ten years to improve neighborhoods in Durham.
• In fiscal year 2005, Duke University Health Systems spent $28.8 million on charity medical care for low income patients and provided $6.5 million in in-kind service contributions to local health organizations.
• Duke pledged $925,000 to provide scholarships for Durham public school teachers to attend Duke's master of arts in teaching degree program.
• Duke spent $3.7 million to convert off-campus houses rented by students into single-family homes in order to improve relations with local residents.
• The Duke Community Service Center facilitates all manner of good works in Durham by over 30 student run organizations.
Accept the challenges presented by this crisis
Adopting the statements and positions outlined above will help restore Duke’s deserved reputation for greatness tempered by fairness. In that some will react angrily to these statements, their making will require your courage. However, no institution or person can long be considered great if lacking in courage.
One of our university’s finest moments occurred 100 years ago during the Bassett Affair. When a member of the university community unfairly came under public attack, the President and Board of Trustees refused to cave into momentary expediency. Instead, Duke’s leaders spoke out for what was right. In the end, rather than suffer for it, Duke’s reputation was greatly enhanced by the courage of the President and Board. Can we now say the same about the Lacrosse Affair?
We appreciate your efforts in managing this difficult and unusual crisis. We ultimately write not to criticize, but to offer our support. We are not afraid to speak out, and will continue to do so. We encourage you to do the same. We want you to know that you have friends behind you, united in our common desire to ensure that all Duke students receive fair treatment, from both the University and local authorities.
Friends of Duke University