Duke’s Slow Suffocation of Due Process

By June 2, 2008

As a Duke alumnus twice over (undergraduate and law), I watched with horror the events that unfolded in the infamous Duke Lacrosse/Mike Nifong case. While the prime "bad actors" in the case were clearly (now disbarred) former prosecutor Nifong and the false accuser, Crystal Mangum, Duke’s disregard for and even attacks on its students’ rights to due process in the case also gave me plenty of reasons to tell Duke that they won’t be getting a donation from me next time they call. (Incidentally, just about every aspect of the case has been ably documented by Professor KC Johnson in both his Durham-in-Wonderland blog and his book with the National Journal‘s Stuart Taylor, Until Proven Innocent: Political Correctness and the Shameful Injustices of the Duke Lacrosse Rape Case.)

One major upshot of the fiasco, however, would seem to be Duke students’ increased awareness of the crucial importance of due process and fair procedure, both in the law and on campus. And unfortunately, it looks as though Duke has been headed in the wrong direction on these issues for a number of years. In a series of columns in Duke’s Chronicle student newspaper last fall, student Elliott Wolf does yeoman’s work in tracing the evolution (perhaps devolution would be a better word) of Duke’s judicial code over the last decade or so. Amazingly, despite the fact that while I was at Duke, the student judicial board was widely considered a total joke and a kangaroo court, it turns out that I attended Duke during what was, comparatively speaking, a golden age of justice and fair procedures.

In the first column of his "Dude, Where’re My Rights?" series, Wolf describes Duke’s elimination of probable cause requirements, the right to remain silent, the right to confront witnesses, and the right to a public hearing. The second column reveals Duke’s switch from excluding illegally obtained evidence to being perfectly willing to include it, along with its cooperation with the Durham Police Department (another bad actor in the lacrosse debacle and another legendarily incompetent institution during my time there) in punishing Duke students more harshly than other Durham residents for identical or even less severe offenses. The final column discusses Duke’s justification for these changes and actionsapparently the usual academic mumbo-jumbo about "teachable moments" that is regularly used to justify any number of absurd faculty and administrative abuses. Sure, everyone needs to learn that life isn’t fair, but the last place a student should learn that is through what is supposed to be a system of "justice." Wolf has posted annotated versions of these columns, along with source documents, on his own Duke webpage at http://www.duke.edu/~egw4/. Those interested in the decline of due process on campus would be well-served to take a look.

One final note: if you are a university that is interested in having a fair student justice system, perhaps hiring Larry Moneta as your Vice President for Student Affairs (one of the folks in charge of Duke’s move towards Soviet standards of justice) is not the smartest move. Before becoming an administrator at Duke, Moneta was Associate Vice-Provost for University Life at the University of Pennsylvania, where he bore a large amount of responsibility for the disastrous "water buffalo affair" that served as the impetus for Alan Charles Kors and Harvey A. Silverglate to write the book The Shadow University: The Betrayal of Liberty on America’s Campuses, and ultimately, for them to found FIRE. (Whoops! Talk about your "teachable moments.") In fact, without the abuses that took place under Larry Moneta, there’s a chance FIRE wouldn’t even exist. It seems some people never learn.