In the future, recent events in Durham might serve as a case-study in law schools on the seemingly endless number of ways in which a prosecutor can violate state procedures in a single case. But for now, it is worth exploring why, in a matter that confirms their critiques of issues ranging from feminism to the professoriate’s ideological one-sidedness, conservative intellectuals and activists have proven reluctant to take the side of the Duke lacrosse players.
If any case shows the academy’s hollow core, it is this one: while not even one of Duke’s 511 professors, including 44 law faculty, have publicly questioned Durham District Attorney Mike Nifong’s myriad procedural irregularities, 88 of their number signed a statement declaring that “what the police say or the court decides” was besides the point, and thanking protesters who had shouted outside one player’s residence, “Time to confess.” If any case highlights the weaknesses of feminist legal theory, it is this one: even though the accuser previously claimed to have been gang raped by three men, only to drop the charges and have her father publicly deny that anything happened, North Carolina’s rape-shield law prevents mention of this incident in court. And if any case illustrates how prosecutorial power can be abused for political purposes, it is this one: desperately needing black votes in the Democratic primary, Nifong secured indictments against two players before the election–and before he received negative DNA test results, which he had previously promised would come back positive against the guilty.
Though this record should outrage conservatives, some of the most passionate columns on the case have come from National Journal’s Stuart Taylor–whose work reflects, if anything, a libertarian bent–and sportswriter Jason Whitlock, who has lamented, “If the Duke lacrosse players were black and the accuser were white, everyone would easily see the similarities between this case and the alleged crimes that often left black men hanging from trees in the early 1900s.” A few conservative bloggers and columnists have seared Nifong’s behavior, and the issue has received play on talk radio and television. But many conservative thinkers either have declined comment or concentrated on condemning the lacrosse players’ acknowledged behavior (drinking, hiring a stripper for a party) while calling for more focus on academics at colleges.
Typical of such sentiments is John Hood, president of North Carolina’s John Locke Foundation, who denounced the players as “irresponsible louts” and called for colleges to refocus on “the life of the mind, not the life of the party.” Vin Cannato compared the lacrosse scandal to Harvard’s treatment of Larry Summers and Yale’s admitting a former Taliban official as a student–two of the most indefensible events in higher education in the past year. At NRO’s Phi Beta Cons, Carol Iannone cited the case to endorse “the return of in loco parentis, and preferably the old-fashioned kind of parens. It’s only four years and you can actually live without strippers for that time.”
This conservative ambivalence to the more pertinent offenses on display in this case is deeply unfortunate, for three reasons. First, and most important, it increasingly appears that a monumental miscarriage of justice is unfolding in Durham. In such a circumstance, people of ideas, regardless of ideology, should do everything they can to protest.
Second, the concept of using higher education to shape students’ values is dubious for pragmatic reasons. Those unaware of how colleges have promoted “moral values” can read Alan Kors and Harvey Silverglate’s Shadow University, or peruse FIRE’s archives for the latest campus speech codes and first-year orientation programs. Conservatives, of course, maintain that they would champion appropriate values; but given the university structure, programs would still be run by the ideologues who staff student life offices or overseen by the faculty.
Finally, the values agenda is flawed intellectually. The goal of a college education should be providing the best education possible, not teaching students how to behave. However well-intentioned, attempting to impose morality onto the college experience too readily can frustrate other educational aims. Religious institutions, such as BYU or Liberty, have successfully shaped students’ values; so too have a few smaller schools, such as St. John’s of Maryland. But the former’s efforts have come at considerable cost to campus intellectual diversity, while the latter’s uniqueness makes its experience almost impossible to replicate.
Ironically, the calumny heaped upon them has obscured the lacrosse players’ actual records. An investigation headed by James Coleman, a Duke law professor and former (Democratic) counsel to the House Ethics Committee, confirmed that while the men’s lacrosse players had a disproportionate number of alcohol violations, they also performed extensive community service, achieved athletic excellence, and demonstrated unfailing courtesy to Duke staff. The Coleman Committee found no evidence that “the cohesiveness of this group is either sexist or racist.” On the academic front, more than half the team made the ACC’s academic honor roll; one professor recalled that “the lacrosse players were willing to defend unpopular positions in class.” Given the ideological tenor of the Duke faculty, the positions that the players took can easily be imagined.
Those who still wonder if the players’ character should distract from a campaign to restore justice in Durham should follow the lead of Duke’s women’s lacrosse team. Coach Kerstin Kimel explained, “There is a strong camaraderie between our teams, and my players–being smart, savvy young women–would not associate with them if they felt on the whole, there was an issue of character.” And so, having made the 2006 Final Four, the women’s team members wore “innocent” headbands to express solidarity with Nifong’s targets. In light of their own faculty’s response to the case, this demonstration of personal values and courage should make even the strongest critics of the Duke lacrosse program reconsider.
–K. C. Johnson is professor of history at Brooklyn College and the CUNY Graduate Center. His most recent book is Congress and the Cold War .