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.