""higher IQ" males, such as those at Duke, could be "highly manipulative and coercive.""

Well, any male with an IQ above room temperature should be avoiding Duke in the future.

See how problems solve themselves?

I'm sorry, but there's a lot of weasel-y language here that needs to be parsed:

"This ad stopped just short of explicitly branding the lacrosse players as rapists."

Translation: The ad did NOT brand the players as rapists.

"But it treated almost as a given the truth of the stripper's claims of a brutal gang rape by three team members amid a hail of racist slurs."

If the statement treated the changes ALMOST as a given truth, this means that the 88 professors did not, in fact, claim that the woman's charges were true.

"It praised protesters who had put lacrosse players' photos on "wanted" posters."

No, it did not. Nowhere in the statement did the authors explicitly praise those who put players' photos on wanted posters. One may praise protesters in general without implicitly endorsing every action taken by every single protester. I thought the Vietnam War protests were very praiseworthy, but that obviously doesn't automatically mean I that supported, say, the Weather Underground (which I did not, of course).

"It associated 'what happened to this young woman' with 'racism and sexism.'"

Obviously, no rape occurred, and the Durham County prosecutor was duly punished for his actions during the case. But, as I understand it (and perhaps this story has been refuted as well), racial slurs were delivered by someone that night. As for sexism, well, a group of rowdy and alcohol-fueled young men hiring a stripper for their entertainment--it sort of speaks for itself.

But mainly, what I want to know is this: How precisely are we supposed to hold the 88 professors "accountable"? Fines? Suspensions? Dismissals? Forced Maoist-style confessions? Because, honestly, I've read the statement by the 88, and, while I find it poorly written and poorly conceived, there's really nothing there that approaches the boundaries of libel. And approaching the line, even "stopping just short" of it or "almost" crossing it, means that you are, or ought to be, fully protected by both the First Amendment and academic freedom. I thought the answer to bad speech was more speech, rather than punishment.

How precisely are we supposed to hold the 88 professors "accountable"? Fines? Suspensions? Dismissals?

Strange as it may seem to academicians with an unquenchable sense of entitlement, ScottF, persons who bring disrepute on their employers are often discharged from their jobs.

Fifty individuals signed both the original statement and the non mea culpa statement filed later. Thirty-seven signed the original statement and then clammed up. Another thirty-seven signed just the non mea culpa statement. One signed the original statement and later repudiated it. (Last I checked, about seventy faculty signed a bland statement circulated by the economics department welcoming the exonerated students back to campus. Three (3) professors had publicly defended the three accused players).

So, among these faculty, you have one individual out of 125 who is willing to publicly admit error. That is not a terribly attractive ratio for a collection of scholars, and a selection of faculty (e.g. Houston Baker) conducted themselves in such a manner as to suggest they do not belong in any sort of employment where they act without supervision and can exercise discretion. One of those promoted in the wake of the whole imbroglio was Prof. Sarah Deutsch. Prof. Deutsch's stock in trade is social fiction.

The trustees at Duke University can initiate corrective action, but they will not. The President of that august body made it a priority to cover Richard Brodhead's back (before taking on a new position lying to Wachovia's shareholders).

Does the duty owed by a professor to a student at his institution exceed the duty owed by one random citizen to another random citizen? Should it?

"ScottF, persons who bring disrepute on their employers are often discharged from their jobs."

I'm pretty sure that's not a road anyone wants to go down. First of all, in the business world, there's no such thing as academic freedom. Second, and also in the business world, the employer typically gets to decide who has brought disrepute upon the organization. I'm not a conservative, but for those of you who are, do you really want administrators deciding when a faculty member has brought disrepute upon the university? If so, all those so-called gadflies who glory in pushing the envelope on insensitive speech--and who would have been discharged by any self-respecting corporation ages ago--would lose their tenured positions in a heartbeat. You might want to ask FIRE what they think of your proposal.

"Does the duty owed by a professor to a student at his institution exceed the duty owed by one random citizen to another random citizen? Should it?"

If that's a philosophical question, then the answer is yes. If that's a question involving terminating or otherwise punishing supposedly wayward faculty, then the answer is no (for all the reasons indicated above).

The bottom line is this: no matter how abhorrent you may have found the original letter by the 88 Duke professors, there is very simply nothing actionable contained therein. We don't get to fire people (or suspend them or otherwise punish them) just because we're offended by what they said. Everyone agrees with this statement when it comes to the professor who speaks out against the rights of gay and lesbian students. I'm just asking for a little consistency here, that's all.

"First of all, in the business world, there's no such thing as academic freedom."

True. And yet the business world stumbles along somehow. Sometimes it seems as if the academic world should attempt to follow suit.

"If that's a philosophical question, then the answer is yes. If that's a question involving [something real], then the answer is no...."

What good is philosophy if you cannot/must not apply it to real life?

Further:

"The bottom line is this: no matter how abhorrent you may have found the original letter by the 88 Duke professors, there is very simply nothing actionable contained therein. We don't get to fire people (or suspend them or otherwise punish them) just because we're offended by what they said. Everyone agrees with this statement when it comes to the professor who speaks out against the rights of gay and lesbian students. I'm just asking for a little consistency here, that's all."

Do you understand the difference between speaking out against the idea of some nebulous groups of students having certain rights, and demonizing specific students? It's a pretty big difference.

"'If that's a philosophical question, then the answer is yes. If that's a question involving [something real], then the answer is no....'

"What good is philosophy if you cannot/must not apply it to real life?"

But of course there's a difference between the principles we strive to achieve and those which we seek to enforce under penalty of rule or law. For example, in principle I consider homophobia to be an appalling manifestation of bigotry, even when practiced under the cover of religious belief. I would not, however, fire homophobes from their jobs based merely on their constitutionally-protected exercise of free speech.

"Do you understand the difference between speaking out against the idea of some nebulous groups of students having certain rights, and demonizing specific students? It's a pretty big difference."

My guess is that gay and lesbian students probably do take such comments quite personally and do not view themselves as "some nebulous group". Regardless, the difference you cite is irrelevant to the larger point, which is simply this: Shall we endorse the idea that universities may punish those who have offended, even if the supposedly offending words are clearly protected by the First Amendment and academic freedom? If your answer is yes, I suspect you would rue the day that you gave that kind of authority to academic administrators. Unless, of course, you want this new rule to apply only to the Duke lacrosse case, in which I will stop right here without being so impolite as to acknowledge the obvious.

I'm pretty sure that's not a road anyone wants to go down.

Try me, Scott.

First of all, in the business world, there's no such thing as academic freedom.

So what? Employees are hired to serve institutional goals, not to turn their institutions in to sandboxes, without regard to whether they justify such behavior with slogans like 'academic freedom'.

When Erin O'Connor can blow into town on Friday and be engaged to teach A.P. courses at an academic high school on Monday, we will be privileged to call our scholar/teachers 'free'.

Second, and also in the business world, the employer typically gets to decide who has brought disrepute upon the organization. I'm not a conservative, but for those of you who are, do you really want administrators deciding when a faculty member has brought disrepute upon the university?

It must be up to someone. I would prefer that trustees elected by the alumni make the ultimate determination, but trustees are in our time determined to be delinquent booster boards.

If so, all those so-called gadflies who glory in pushing the envelope on insensitive speech--and who would have been discharged by any self-respecting corporation ages ago--would lose their tenured positions in a heartbeat. You might want to ask FIRE what they think of your proposal.

I have a mixed opinion of the activities of that organization and do not work for it; take it up with someone else.

What I would like to see is an end to the sclerosis of the academic job market, to the insuperable barriers between academic employment and other sorts of employment, to the overproduction of aspirant professors, to the sheer waste of resources (students' time in particular), to the subversion of institutional missions by the professoriate and the university apparat, and most especially to the monovox of the academic world. In my dreamscape, tertiary institutions are sure of and forthright about their institutional missions and aspirant professors can happily sign up if they agree and readily move elsewhere if they decide they no longer do.

In the whole body of such institutions, you should be able to find more than token representation of the strains of thought in the society at large. I have lived my life in a part of the country where there are more than fifty institutions for whom the baccalaureate degree is the principal stock in trade, and they enroll ~260,000 students. Institutions which offer a corporate dissent from the Official Idea in academe number two or three and enroll fewer than 6,000 students. There are times and places where the social processes which bring that about generate an institutional culture so insular its members can no longer see straight. Soulmate hires soulmate and you get a train wreck like Trinity College, Duke. It is not the job of Robert K. Steel et al. to run interference for the likes of Sarah Deutch and Wahmeena Lubiano. It is their job to transfer the uncorrupted departments to other faculties of the University, and shut Trinity College down.

It must be up to someone.

Why? In the US, at least, it's not "up to someone" to decide which political parties are legitimate or which aren't or which companies deserve to succeed and which don't. If academia is an ideological monoculture, surely the solution is more free speech, not less.

While we are at it, why don't you ask James Van de Velde what he thinks of that man for all seasons, Richard Brodhead.

My guess is that gay and lesbian students probably do take such comments quite personally and do not view themselves as "some nebulous group".

Scott, gay and lesbian students do not share a common brain. Further, some of the are out and some are not; and of the ones who are out, some are of an activist bent and some are not. And then there are students who self-identify as bisexuals, and some who go back and forth. It is a nebulous group, whether some of the members view themselves as nebulous or not.

Taking a comment personally - well, let's say that you say "women don't do well as lab managers". I'd take that somewhat personally b/c I am one. If you said "Laura is not a good lab manager" I'd take that a hell of a lot more personally.

ScottF: Several things. Academic freedom is not the same thing as free speech. Duke is not a public university -- so faculty there do not automatically have recourse to the First Amendment. The courts are currently parsing the difference between academic freedom and free speech (and the limits of free speech as it applies to public employees) in cases involving public university professors who have been dismissed or punished for criticizing their institutions' administration--and are *not* finding on behalf of the professors. See http://www.insidehighered.com/news/2009/12/23/sadid.

Thanks for the comments. I am, of course, aware that Duke is a private institution and, thus, untethered by the First Amendment. I am also familiar with the Idaho State case, which I predict will ultimately remind us all about the legal maxim about bad cases making bad law. I suspect that a number of bloggers and other critics of their home institutions, both on the right and the left, are sleeping a little less soundly these days. As I said in a slightly different context above, conservatives will likely rue the day they celebrated the court’s decision to greenlight the dismissal of academic critics and gadflies.

In any event, my concern wasn’t really with the legalities of academic freedom. As a private university, Duke probably could fire all 88 professors and get away with it. Obviously, they won’t, both because it would be wrong (the statement by the 88 never libeled the players, nor did it even address their guilt or innocence) and because to do so would make the school such an academic pariah that it would soon be competitive with its rival in Chapel Hill on the basketball court and nowhere else. But they could.

My real point, however, involves the importance of consistency in the battle for academic freedom. KC Johnson, who once had to fight for his own rights in the academy, now displays little concern with or respect for the rights of 88 colleagues whose punishment, if it were to occur, would be in direct violation of both academic freedom and due process. (And, yes, I know academic freedom is not unlimited, but if it doesn’t include the right to author “listening statements” [even poorly worded ones] about events affecting one’s campus—particularly statements that make no direct accusations or charges—then it truly means nothing.) As I said above, whenever college administrators seek sanctions against students or faculty members who exhibit gross insensitivity toward minority groups, we are told that the only proper answer to bad speech is more speech. If that is so, then it should be just as true in the case of the Duke 88.

As it stands, at least with respect to the Group of 88, the marketplace of ideas has already been flooded by several fire hoses. So I'm not sure why anyone sees the need to keep this issue fresh, unless it is to undermine academic freedom.

As a private university, Duke probably could fire all 88 professors and get away with it.

Perhaps I'm missing something, but doesn't tenure create a contractual relationship (based upon an institution's faculty handbook and similar documents) that limits an employer's discretion in terminating employees? Thus, although tenured faculty at Duke do not *automatically* have a 1st Amendment right to their jobs, they are parties to a contractual arrangement that *does* offer them certain protections.

KC Johnson, who once had to fight for his own rights in the academy, now displays little concern with or respect for the rights of 88 colleagues whose punishment, if it were to occur, would be in direct violation of both academic freedom and due process.

Dr. Johnson's complaint is that the professors involved repeatedly violated contractual obligations specified in the faculty handbook. His other complaint is that their colleagues rewarded them with appointment to administrative positions and key committees. His third complaint is that Trinity College has been hiring and retaining people who have no business in academic positions. His fourth complaint is that the University apparat and selected instructors violated contractual obligations to the Lacrosse team as students in various ways. His fifth complaint is that Richard Brodhead dismissed the Lacrosse coach for no good reason. His sixth complaint is that the trustees failed to dismiss Brodhead for ample reason.

There has been no credible claim that Dr. Johnson violated any obligations to anyone at Brooklyn College unless you consider a professor obligated to countenance transparent violations of federal labor law by his department chairman.

"I am also familiar with the Idaho State case, which I predict will ultimately remind us all about the legal maxim about bad cases making bad law."

I've seen that maxim misquoted that way twice in the past few days. It's HARD cases make bad law. And the idea that the issues involved here are really that hard at all comes largely if not solely from the presumption on the part of academia that it is above the laws of general application that govern the rest of us mere mortal plebes.

I've said this before here: the contrast in my mind between the reaction of my own profession (the law) and that of the Duke faculty and administrators could not be starker. Mike Nifong was promptly disbarred for an egregious abuse of his power and position as a prosecutor, exactly as he should have been. Meanwhile, the presumption of guilt smeared on the students by their own university goes unanswered.

You say the letter never libeled the students: I'm not so sure. I don't claim to know the ins and outs of North Carolina's law of defamation, but what I do know is that: 1) the students were not public figures, and thus not subject to the heightened standard of NY Times v. Sullivan and 2) falsely accusing someone of a crime of moral turpitude (like, say, rape) is generally libel per se, without the need to plead or prove specific quantifiable damages.

"...although tenured faculty at Duke do not *automatically* have a 1st Amendment right to their jobs, they are parties to a contractual arrangement that *does* offer them certain protections."

Sure, but the common law doesn't recognize unilateral contracts: you need two parties, and to be enforceable by one the terms must enforceable by the other. If tenure is really, as some academics seem to think, a contract between the university and the professor saying the professor can do absolutely anything and the university must still employ them, that's not a contract at all because it is not possible to be breached by one party, therefore for a court to require compliance by the other party would be unconscionable. Whether the students are in privity of contract with the professors such that they could sue them individually as well as the university itself for breach of contract would, I imagine, depend on the terms of the professor's employment contracts and most likely on details of North Carolina contract law that none of us on here are actually familiar with, but even if not, if the students were to sue the university and recover a judgment or a settlement, my guess would be the university could then turn around and sue its faculty for indemnification of its losses.

FWIW -- Three of the Duke lacrosse players did sue the university, seeking $30 million in damages. Duke settled for an undisclosed amount in June 2007. See: http://sports.espn.go.com/ncaa/news/story?id=2908118

In 2008, the rest of the Duke lacrosse team sued the university for defamation. The group of 88 was named--but not as defendants--but Brodhead and select admins were. The implication is that the Duke administration bears responsibility for the faculty's gross misdeeds--something that has fascinating implications for the limits of academic freedom. I wrote about this here: http://www.erinoconnor.org/archives/2008/03/under_the_rug.html

I'm not sure what the present state of the players' case is.

The coach who was summarily fired is now pursuing a defamation suit of his own: http://sportsblog.projo.com/2009/09/court-allows-fo.html

To Dave J:

OK, counselor, please read the Group of 88 listening statement (not Johnson and Taylor's caricature of it) and tell me precisely where you or anyone else could possibly find libel therein. I don't know any more about North Carolina law than you do, but in this case it really doesn't matter. Please show me the smoking gun passage in this statement that would pass muster with ANY state's libel laws.

www.dukenews.duke.edu/mmedia/pdf/socialdisasterad.pdf

As far as the lawsuits go, it's pretty common practice for big, rich institutions like Duke to settle cases that they might otherwise win simply to make the negative publicity go away. Had I been a Duke administrator, that would certainly have been my recommendation. As for the lawsuit filed by the rest of the team, we'll see. If the strongest evidence they have of defamation is the Group of 88 statement, I predict that they'll go home empty-handed. Of course, Duke may eventually settle this one, too...

One more thing:

"If tenure is really, as some academics seem to think, a contract between the university and the professor saying the professor can do absolutely anything and the university must still employ them,"

Nobody believes that. It's a strawman argument. But we do believe that the historical record makes abundantly clear that tenure is, if nothing else, intended to protect non-libelous political and social expression.

ScottF: The issue is not just that ad that they placed. For a short (and still partial) summary of other professorial statements and actions against the lacrosse players, not to mention of faculty members' harassment of those few colleagues who took exception to their rush to judgement, see: http://www.lewrockwell.com/anderson/anderson189.html

See also the Provost's exchange with then-English professor Houston Baker, who was appalled that Duke did not go even further in its initial denials of due process: "There can be no confidence in an administration that believes suspending a lacrosse season and removing pictures of Duke lacrosse players from a web page is a dutifully moral response to abhorrent sexual assault, verbal racial violence, and drunken white male privilege loosed amongst us": http://www.dukenews.duke.edu/mmedia/features/lacrosse_incident/lange_baker.html

The issue is not just that ad that they placed. For a short (and still partial) summary of other professorial statements and actions against the lacrosse players, not to mention of faculty members' harassment of those few colleagues who took exception to their rush to judgement, see...

I think one of the issues here is constant slippage between the group statement and what individual signatories have done. The paragraph quoted above, and much of the discussion, does not make it clear the "they," the authors of various "professorial statements," and the "faculty members" who harassed students are not a single monolithic group. This rhetorical move makes it possible to tar everyone with the same brush.

Peter and ScottF: Is it your position that no one at Duke should be held accountable for any statements or actions taken against the Duke lacrosse players? Not even those who, like Baker, personally and publicly assumed their guilt and urged the university to ever greater heights of punishment in absence of due process? Or is it your contention that some should be held accountable in some way, some how? I'd like to know where you think the line between academic freedom and violation of faculty code of conduct is. Even if you don't feel able to adjudicate the details of the Duke case, I'd still like to know, in a general way, when you think professors can and should be held accountable for crossing a line, and how you would define that line. In fact, I'm much more interested in your general opinion on that matter than in your opinion in this instance.

Seems to me the key issue here is institutional culture. Whatever you think about what should or shouldn't be done to the Gang of 88 (and unless their statements are actually found to be legally defamatory, my answer is "nothing"), surely there is something very wrong with an institution in which such a large number of professors act in such a way toward students to whom they have a particular moral, if not legal, duty.

Institutional culture is to a significant degree molded by the institution's chief executive. Brodhead had only been at Duke for about 2 years when the affair happened so he can't be totally blamed for the toxic atmosphere; however, his actions during it say to me pretty clearly that he is not the right individual to de-toxify it.

Erin,

I think that David Foster has hit the nail on the head: rules and sanctions are no substitute for a healthy institutional culture of civility. Suasion and example are often the best way to foster a culture of respect.

My own answer: if a faculty member has broken a law or abused his/her authority by (let's say) violating a student's privacy or issuing a poor grade as a form of retribution, then he/she should certainly be sanctioned for "crossing the line." I don't know to what extent the conduct of the various members of the Duke 88 falls into this category.

Beyond that, things get tricky, and depend upon how an institution has decided to codify its values in its faculty handbook. Not knowing much about Duke's faculty handbook, it is hard to speak to the specifics of this case. I know that KC Johnson makes much of the faculty's obligation, described in the Duke handbook, to treat student with respect. Echoing ScottF, I'm not sure whether we really want to "go there," as that gets us dangerous close to speech codes. Civility, as we all know, is often in the eye of the beholder.

I would associate myself with almost everything said above by Peter Shoemaker.

There is, in principle, nothing inappropriate about faculty members expressing their opinions about the behavior of students on campus, even if those opinions are strongly negative. Indeed, professors, from both the right and left, do so all the time. Often, students' behavior is richly deserving of such condemnation.

So what happens if a professor actually accuses a student of perpetrating a crime which, it turns out, he or she did not commit? Well, that's what we have courtrooms for. The proper place to adjudicate such matters is in the legal system. University administrators shouldn't, in general, be in the business of determining what is and isn't defamatory, even in cases where the answer may seem obvious to some. This would simply open a door we shouldn't want opened.

Now, the classroom environment presents a somewhat different situation. In fact, I suspect that Duke's rule about treating students with respect refers primarily to the classroom. If it can be demonstrated that a professor used class time to single out one student--or a small group of students--for abuse or false criminal accusations, that, in my opinion, would potentially be actionable. As I recall, one or two Duke professors were alleged to have done so, though, of course, the burden of proof rests strongly with the accuser in such cases.

Several things about the Group of 88.

The statement itself is a dubious document since the rationale the signers rely on are all anonymous.

There is, in principle, nothing inappropriate about faculty members expressing their opinions about the behavior of students on campus. There is something, however, quite inappropriate when these statements of their behavior are unfounded. Indeed the Coleman report debunked many of the statements of the faculty in question, including alcohol consumption, student interaction, and so on. It certainly painted a far different picture than "farm animals" (Houston Baker), "aggressive" and "dangerous" (Peter Wood), "perfect offenders" (Waheema Lubiano) and so on. Speaking of what is NOT in the statement, Alex Rosenberg signed the statement, he claims, to address the problems of drinking by college students. No mention of alcohol is in the statement. The claim of racial slurs has been similarly debunked as an insult prompted by Kim Roberts who first insulted a player.

Faculty had also interfered in the civic sense by shutting down an attempt by students to raise voting awareness to out Nifong. Grant Farrad called the attempt to remove Nifong from his position "silent racism." What possible motivation would Farrad have for wanting to prevent the loss of Nifong (who's ethics woes were already becoming apparent by this point).

Kim Curtis, the retaliatory professor that Erin mentions, has actually been caught on film attending the rally where signs were exhibiting "Sunday morning: Time to Confess" and "Castrate!"

Beyond the semantics of the statement, the anthropology department used its funds illegally towards this statement. Anne Allison, its chair, had already been admonished for unethical use of department funds.

If the statement by the Group of 88 is not enough proof, then let us ask ourselves: where was the Group of 88 statement for Katie Rousse? What was different there?