Too Little Too Late

by Jason Trumpbour, FODU spokesperson

In an address to a conference at the Law School on Saturday, President Brodhead apologized for several aspects of the administration’s handling of the lacrosse case. The text appears here.

Apologizing to the players was the right thing to do. However, I cannot help but feel that, once again, circumstances forced his hand. After all, the administration had been belligerently insisting that they had gotten things more or less right and have clung to that position up until this speech. Now, there is the prospect of imminent lawsuits by the unindicted players and a review of President Brodhead’s first three years in office is underway. Just as the revelation that Mike Nifong was hiding evidence forced him to speak out in December, we see President Brodhead reacting rather than leading.

His apology also is incomplete. It is inevitable that mistakes would be made in trying to deal with such a bizarre and unprecedented situation. No one would have expected different. That mistakes were made is not really the problem.

What President Brodhead really needs to take responsibly for and has yet to do so are the selfish motives that drove the administration’s policies. The administration wanted the case to go to trial. It believed that, if the case were dismissed before trial for whatever reason, people would say that Duke used its influence to have it dismissed. Robert Steel, the Chairman of the Board of Trustees told me that a year ago. That is also why President Brodhead, despite being savagely maligned for doing so, clung to the concept of Reade, Collin and David “proving themselves innocent.” That was not just an isolated, unfortunate choice of words. President Brodhead repeated this formulation only a few days ago. Dismissal is the proper procedure in the case of weak or baseless charges. Indeed, prosecutors have an affirmative legal and ethical duty to dismiss such charges where they are not based on probable cause or where they do not themselves believe in the guilt of the accused. However, the administration pretended not to know anything about these concepts.*

If Reade, Collin and David had to be exposed to the risks associated with a trial by a corrupt, unethical prosecutor who had done everything he could to inflame the jury pool, that was just the way it had to be. Steel told me that it did not matter if they were convicted because all the problems with the case would be sorted out on appeal. That is not the way the appeal process works and I told him that, but that was still his plan.

The most disturbing outgrowth of this policy was that the administration not only did not want to speak up itself. It did not want anyone else doing so either. Administration officials would privately bad mouth the players to reporters and anyone else who expressed doubts about the charges or the fairness of the procedures used. I know. I heard this garbage myself. They were still doing it after the Attorney General’s report came out to justify their actions.

In the end, the administration’s policies were never about ignorance of the facts or credulity concerning the motives of public officials. The facts were irrelevant. It was all about keeping up appearances. Moreover, the views of some groups carried more weight than others. It is the same policy that lead to Ryan McFadyen being suspended, Mike Pressler being fired and Kim Curtis going unpunished.

President Brodhead, as he did in May, reckons that he has things figured out now. However, a recent series in the Chronicle detailed how the administration has been modifying the University’s judicial code to eliminate most of students’ procedural rights and how the administration punishes students on the mere accusation of Durham police officers without further proof despite well documented abuses by the Durham Police department. If the lacrosse case has taught us anything, it is that procedure matters. Unfortunately, it appears that the administration has learned absolutely nothing at all.

Duke needs and deserves strong leadership. In making his apology, we find President Brodhead doing precisely what he has been doing all along: embracing and conforming to whatever the prevailing understanding is regardless of its validity. It is gratifying that people finally understand what was actually going on. However, nothing has changed at Duke.

Throughout this entire ordeal, we have criticized the administration, but, unlike a number of other critics, we did not call for President Brodhead to be removed. Instead, we tried to support him and give him the courage he needed to be a leader and to do the right thing. We tried to engage the administration in a respectful dialogue about the issues. We have nothing to show for those efforts. I am glad that FODU could help the public understand the extent of Mike Nifong’s misconduct. However, that satisfaction is tempered by the fact that we spent a year doing someone else’s job for them.

It has long been our position that the administration’s words must be matched with deeds. Unfortunately, the time for action has come and gone. Last May, I wrote President Brodhead asking him to appoint a commission to look at the administration’s response to the lacrosse case. He appointed one to look at the first couple of weeks. Why not the other eleven months or so? We could not have changed the past. However, could have made sure that the same mistakes and moral failings are not repeated in the future. That is what we wanted and that is what most of the families, despite the wrongs done to them, really wanted. President Brodhead gave us the brush off. That was his last possible opportunity to actually do some tangible good. He has made his choice. It is time to look somewhere else for leadership.

President Brodhead is now undergoing a performance review to determine whether his contract should be renewed. Information on how to participate is here. I know what we will be recommending.

In criticizing President Brodhead, it should be kept in mind that he alone is not responsible for the University’s official policies and conduct. Indeed, those above him and below him bear greater culpability and their status needs to be addressed as well. Robert Steel, the Chairman of the Board of Trustees bears the greater responsibility for Duke’s official policies regarding the lacrosse case. Getting rid of him is a bigger priority for me than getting rid of Brodhead. Many of those below President Brodhead carried out these policies in the manner described above and with far too much enthusiasm. President Brodhead often simply appeared to be there in the middle. However, that in and of itself is a huge problem.

*[Edited for clarity]