Sunday, January 13, 2008

Lawsuit Breakdown: Q&A between DSEDuke and KC Johnson

[The series Lawsuit Breakdown will attempt to highlight the main points of the lawsuit filed on 12/18/07 by attorneys for Ryan McFayden, Matt Wilson and Breck Archer with a focus on Duke University's involvement in the scandal.]

The following questions were answered by KC Johnson, co-author of Until Proven Innocent and author of the Durham in Wonderland blog on 12/28/07.

1) How long do you expect these civil lawsuits to drag on? How would you project the timeline for each phase?

These could go on for some time. Take a look at the lawsuits filed by the three falsely accused players: none of the defendants has even filed a response yet, and yesterday Patrick Baker was granted another month (till mid-Feb.) to respond. So it could well be several months before the initial paperwork is complete.

All of the defendants, I suspect, will file motions to dismiss the suit. Assuming that (for most, anyway) this motion isn’t granted, the next step would be depositions and discovery, which would take another several months, at least.

2) The Ekstrand Lawsuit named nearly every top administrator at Duke. How do you think this lawsuit and ones to follow will affect those administrators’ abilities to perform in their duties until these matters are resolved, and what will it mean for Duke?

The lawsuit clearly isn’t good news for Duke: I can’t imagine there’s any university in the country that would like to be sued. And, of course, the lawsuit is just one of many—the Dowd suit, the three players’ suit, the Pressler suit—that Duke has either faced or settled before the lawsuits were filed.

The question, of course, is whether the Trustees and administration have engaged in any critical self-reflection as to what exactly the University did wrong in this affair, and what improvements can be made to ensure that such errors don’t recur in the future. In this respect, the litigation could represent an opportunity for the University to move forward.

We haven’t seen many signs of this process to date, but I continue to hold out hope.

3) The lacrosse season was cancelled because of the gravity of the allegations in question. Should someone like Dean Bryan, to name one, whose ability to perform his job depends upon his moral high ground, step down and be temporarily replaced until these matters are resolved?


The single most troubling item in the Ekstrand suit is the claim that the Bryan prosecution of Matt Wilson involved asking Wilson questions about the party—which, by Duke’s own standards, would have constituted the University obstructing justice. (Recall that throughout 2006, Brodhead repeatedly contended that any University inquiry would have opened up the school to obstruction of justice, and therefore Duke had no choice but to both defer to Nifong and remain silent about Nifong’s procedural abuses.)

In combination with the highly damning revelations in the Elliot Wolf series about Bryan, it seems to me that the dean should be reassigned until the questions about his performance have been answered.

[Note: one of our sources has asserted that the majority of the complaints Wolf has with the trend of judicial policy regard policies enacted by Bryan's predecessor, Kacie Wallace. In fairness to Bryan, we will try to look into this matter]

4) Did Brodhead’s condemnation of “ill-judged” statements from the faculty in his apology surprise you given his own conduct? Do you believe his own failings and resulting vulnerability (and those of other administrators) have played a significant role in Duke’s continuing unwillingness to condemn or address faculty behavior?

It did surprise me, in large part because in early 2007, he thrice issued public statements that interpreted the highest-profile of these “ill-judged and divisive” statements—that of the Group of 88—in a more benign fashion than that offered by many Group members. So his remarks represented a radical—and welcome—change of perspective.

As for why the administration has been so unwilling to address the inappropriate behavior of some professors, I suspect it’s a combination of two things. First, a fear of litigation—that any rebuke or disciplinary action would also constitute an admission of wrongdoing (essentially the same reason why Durham shut down the Whichard Committee to investigate the DPD). Second a fear of the Group of 88, who, as we’ve seen with their responses to Steve Baldwin and to the Ec professors, are more than willing, loudly and publicly, to brand as racists or sexists anyone who stands in their way. In today’s politically correct academic structure, any administrator (not just at Duke) fears few things more than being called a racist or a sexist by faculty “activists.”

5) You have said you believe the feds aren’t merely stalling but will never actually get involved. Regardless, how much of a setback will that be to a state investigation by Roy Cooper, and could there still be criminal charges against Duke employees or officials? If so, who would be prominent targets? Will they wait out the civil suits?

6) It is difficult to justify the feds’ unwillingness to investigate. Is it possible to appeal their decision? Are there any other recourses to get federal help in the investigation?

(Take 5 & 6 together). It’s not possible to appeal—except for to the AG’s boss, and somehow I doubt George W. Bush is going to intervene. The lack of federal intervention is very troubling; this is a case in which, from all appearances, a prosecutor, an investigator, at least one police officer, and a SANE nurse-in-training conspired over a months-long period to manufacture evidence that could send three innocent people to jail. It’s hard to imagine a more serious type of misconduct from criminal justice officials.

As to a state inquiry: as we’ve learned over the past year, the state’s powers in NC are very limited. Since the state doesn’t have authority to empanel investigative grand juries, it appears unlikely there will be any criminal investigation at all.

7) It is hard to imagine all of the Duke administrators and officials named in the suit retaining their positions through these civil actions if many of these allegations are demonstrated to be true. It is also difficult to imagine all of them being promptly dismissed. How would you evaluate each administrator’s chances of survival, and what factors will go into the decisions for each official from the following list?

Richard Brodhead, Peter Lange, Tallman Trask, Larry Moneta, Stephen Bryan, Suzanne Wasiolek, Kemel Dawkins, and Matthew Drummond.

It’s hard to me to imagine Bryan lasting. But, then again, it was hard for me to imagine Duke first hiring and then reappointing Larry Moneta—and yet the University did so.

8) In terms of a basis for civil action, you mention the case against DNASI and Meehan as a weak argument in the case. On a factual basis, what do you see as the weaker points of the suit? Where do you think Ekstrand might have overreached, or do you suspect he can confidently substantiate each of his accusations?

I don’t see any case against Peter Lange, who strikes me as someone who has repeatedly tried to do the right thing over the past 20 months.

The tactic in any lawsuit, however, is to be ambitious in initial filings.

9) Vindication or Reparations: if you accept the premise, which motive do you expect to prevail among the lacrosse families? How do you think the allegations already revealed in the Ekstrand lawsuit will affect Duke’s willingness to settle with the other families, or even the three families represented by Ekstrand?

I think that the lacrosse players have already been vindicated—except for the truest of true believers (for whom no evidence will ever sway their mind) no one any longer believes a crime occurred in this case, and there’s a widespread consensus that the administration and “activist” faculty rushed to judgment. So I don’t think they needed a lawsuit to achieve vindication.

As to Duke’s settlement strategy: I can’t imagine the University would want to allow this to go to the depositions/discovery phase. The administration’s strategy has been to “move on” with no inquiry into either its conduct or the faculty’s rush to judgment; such an approach would be impossible as long as previously unreleased material keeps dribbling out.

[by vindication we didn't mean from the crime of rape but from the notions that they are "hooligans" whether or not the rape occurred. We may ask KC about this again with the clarification and will then update his response]

10) How should student leaders at Duke respond to these revelations and allegations? What effects do you foresee, and how should student leaders mobilize to address them?

The passivity of Duke parents has surprised me. How can parents stand idly by knowing their sons or daughters could get wrapped up in—say—Stephen Bryan’s discipline system; or be the subjects of the next denunciatory ad that the remaining members of the Group of 88 throw together?

As for students: passivity implies acceptance. Students have a right to fair treatment by administrators, and the Duke Faculty Handbook (theoretically, at least) requires all Duke profs to treat all Duke students (regardless of their race, class, gender, or athletic status) with “respect” as “fellow members of the academic community.” If students don’t stand up and demand fair treatment, it’s unrealistic to expect that others will do it for them.


Debrah said...

Fabulous Q&A, DSEDuke.

And so soothing to read thoughts and an update from KC.


One Spook said...

KC Johnson wrote, in part, in answer to DSED's question 2. :

The question, of course, is whether the Trustees and administration have engaged in any critical self-reflection as to what exactly the University did wrong in this affair, and what improvements can be made to ensure that such errors don’t recur in the future. In this respect, the litigation could represent an opportunity for the University to move forward.

We haven’t seen many signs of this process to date, but I continue to hold out hope.

"[H]old out hope" ... for what?

I have been a frequent commentor on the DIW Blog, am a big fan of KC, and respect the incredible job he has done in blogging about this hoax.

Yet Johnson's statement above and similar ones made by commentors on the DIW Blog regarding Duke faculty and administration and Durham City employees, particularly with respect to the Wichard Committee's actions, absolutely amaze me!

I've posted something similar before, but here's the point, folks. People and organizations who might have committed wrongs against others are under no obligation, or is it in any way beneficial or prudent for them, to incriminate themselves

That point might come as a shock to many of you, it seems.

Think of it this way ... if you're driving and run a red light and hit another car, you do not have to publicly say things afterward like, "Well gee, I was really tired and shouldn't have been driving; I had my mind on other things; I had a few drinks after work; I knew my car's brakes were faulty and I had been meaning to get them fixed ..." even if those statements are true. In fact, your legal counsel will advise you NOT to make any such statements.

Believe it or not folks, US citizens have constitutional protections against self incrimination, and those protected include Duke, its employees, and the City of Durham and its employees.

Now, a professor like Johnson might have a question on a test that 99% of his students taking the test answer incorrectly. Johnson, on realizing that skewed result could then do a bit of critical self-reflection and throw out the question as being vague or poorly worded and even admit it was his fault; no harm, no foul.

The wrongs allegedly committed by Duke and its employees, Durham and its employees are 'Big League Wrongs' and not simple poorly worded test questions in the classroom.

Thus if you're “holding out hope ... for signs of this [critical self-reflection] process," be prepared for a long wait, like say, until Baker or any of the 88, apologize. Absent a court order, none of that will ever happen.

Like many who have commented, I am highly disappointed that Federal criminal charges were not brought against Duke and certain members of its faculty, administration and employees, and Durham and some of its employees.

I am also disappointed, as others have stated, that some of the plaintiffs in the previous civil suits against Duke settled, but again, it is the plaintiff’s right to settle if they have the opportunity and wish to do so. I hope that the present suits are not settled and that the eventual outcomes result in penalties against the defendants to include admission of guilt, apologies, and agreements to effect structural changes at Duke and the City of Durham.

Such outcomes are the only results that can put other private/public educational institutions and City police departments on notice that they cannot abuse students by trumping the student’s legal rights with the professors and employees own personal, pedagogical or ideological agendas.

One Spook

Jim in San Diego said...

One Spook:

What is most disappointing and, I believe, K.C. Johnson's point, is that we expect retrospection and self-criticism from a top flight university. Duke, as an institution, does not have 5th amendment rights, etc.

Instead of wooden silence, we expect to find an ability to reason from verifiable facts; to recognize mistakes; to accept responsibility; to apologize when errors are made; to make substantive changes to prevent the repetion of mistakes that have occurred in the past.

We do not expect to find tolerance for racism, bigotry, and class hatred; lightly credentialed pseudo-scholars given first tenure, then positions of serious responsibility over student life and indoctrination; blatant racists promoted ("white innocence is black guilt", for one example), their departments upgraded, and moved to new and larger facilities; and, a general attitude of authoritarian destruction of fundamental rights of students as citizens.

Your cynical view of Duke is, unfortunately, apparently accurate. Frankly, that is what is most deeply disappointing.

Jim Peterson

Anonymous said...

Another Duke faculty member who supports the Gang of 88: Dante James. See the interview here (Insight News). Quote from the interview:

Interviewer: Has everything settled down at Duke and in Durham now that the lacrosse team controversy is behind you?

Dante James: On the surface, things are back to normal but, unfortunately, both the university and some of the professors who had the courage to confront the issue are dealing with various lawsuits.