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The making of an anti-lacrosse extremist

This post about the Duke lacrosse case is the second of three parts about how KC Johnson produced his cast of extremists—you can go back to the introduction or skip ahead to the part about Mark Anthony Neal.

Karla Holloway (disclaimer) is one of the “listening” statement endorsers with the highest profile on Durham-in-Wonderland (DIW). Neal is in the next tier down but still among the dozen or so that crop up most often. Like the rest of the endorsers, Johnson presumes both of them guilty of having presumed and announced the lacrosse players’ guilt. Beyond that, whatever incriminating evidence he can pin on individual endorsers is icing on the cake, and with repetition he has no trouble making a little bit go a long way. Relatively speaking he comes up with a lot to hold against Holloway, but the centerpiece is the article entitled “Coda: Bodies of Evidence” that she wrote for the Summer 2006 issue of The Scholar and Feminist Online. I’ll concentrate on that article and its tie-in with her service on the Campus Culture Initiative (CCI), along with Johnson’s response. If you’re interested you can find her rap sheet in this DIW post.

“Bodies of Evidence” is not a general-purpose analysis of the case or a full-scale rationalization of her positions on it, it’s personal impressions and commentary that relate the lacrosse case to the theme of the issue (“The Cultural Value of Sport: Title IX and Beyond”), pitched to the interests of the journal’s readers. Holloway is a veteran academic administrator and naturally seems to see things from an institutional perspective. She frames the schools response to the lacrosse case as a clash between the institution’s dedication to athletics and its commitment to race and gender equity. In parts of the article she’s effectively thinking out loud about how athletics seem to have trumped equity. Two questions represent her disillusionment with both sides. On one hand, if students behave atrociously, what does it matter if they’re national-class athletes with good grades? On the other hand, if the university accepts that women and minorities are disadvantaged, why does it expect them to take on the extra work of documenting the inequity and figuring out how to address it? The two meet head-to-head because of the university’s sense that she should put her body in the line of rhetorical fire serving on a committee charged with patching up the mess.

At every level, starting with the premises, the article is full of assumptions, claims and observations that are eminently debatable—both questionable and the basis for a worthwhile debate. It also offers a candid view of the mechanics of a diversity-minded institution through the eyes of a consummate insider. Johnson shows no interest in either debate or insight. Instead he reworks the text, making it the product of the extremist he knows Holloway to be so he can demolish it.

There’s no question that Holloway takes a dim view of the behavior of the lacrosse team and uses it to reinforce her dim view of the culture of sport. She leads off with the dramatic metaphor of traumatized African American and female bodies on a campus brought to its knees because of

[t]he Lacrosse team’s notion of who was in service of whom and the presumption of privilege that their elite sports’ performance had earned seemed their entitlement as well to behaving badly and without concern for consequence.

Whether or not that’s a fair analysis, the tone is awfully mild for a woman supposedly pronouncing members of the team guilty of a gang rape. For all I know she had little doubt that the allegations were true or her opinions were unduly swayed by the impression of physical violence that went with them. But it’s quite an understatement to describe a violent sexual assault as “behaving badly,” or with the terms she uses elsewhere in the article for the team’s offenses: “sleazy conduct,” “bawdy behavior,” “moral misconduct,” “racial bias and gendered tirade.” What that language and the division into those who felt entitled and those expected to serve calls to mind, for me at least—and I can’t speak for Holloway or anyone else—is a bunch of more or less intoxicated young men stumbling through a grotesque and mutually degrading transaction with a couple of more or less naked women. The women arrived to find a much larger group than the “small bachelor party” they’d been told they’d be entertaining (quoting the Attorney General’s report), and they also had to work out whether their dark bodies would be acceptable to the partyers in place of the white ones that were requested. So from the beginning the event was marked by the kind of humiliation and abuse that must be routine in the sex industry, and it was punctuated by a few blatantly offensive moments like the brandishing of a broomstick as a sex toy and the racial epithet hurled at the departing performers.

It’s subjective how offensive the evening’s events look with the alleged assault factored out. In a credible middle-of-the-road article published soon after the players were exonerated, Newsweek describes the partyers as “foolish and crude.” On one side of that are variations of the college-boys-blowing-off-steam perspective that in the extreme seems to see nothing but a bad business transaction and finds fault mostly with the dancers for failing to deliver the $800 worth of entertainment they were paid for. Holloway doesn’t explicitly lay out her standards, which is a shame—I expect she didn’t feel she had to for the audience of the journal she was writing for—but clearly she’s somewhere on the opposite side of the spectrum.

There’s plenty to debate here, about what kind of services young men at Duke with the cash on hand should feel entitled to, or what stake the school has in their transactions, or how much the partyers’ expectations and behavior towards the women they’d hired says about their attitude towards women in general, or whether the lacrosse team was being unfairly singled out when other groups had hired strippers and perhaps behaved just as badly, or how the socially offensive aspects of the incident should or shouldn’t be discussed when there were students in serious legal jeopardy, etc. But Johnson approaches Holloway as a prosecutor, and prosecutors don’t debate with the defendant in the dock, so he avoids giving the impression that she might be a voice—even a bitter or disengenuous one—in a legitimate debate. Better for his purposes if she’s just plain wrong, and he extracts the parts of her text that are useful and does what’s necessary—reframes, trivializes, or misrepresents—to spin them as incriminating evidence.

To make the big, take-home point—the one he comes back to over and over in later entries—Johnson pretends that if Holloway is writing about the lacrosse team’s bad behavior and using the terms guilt and innocence, she must be referring to the ultimate legal verdict on the rape allegations.

Innocence and guilt, she maintains, must be “assessed through a metric of race and gender. White innocence means black guilt. Men’s innocence means women’s guilt.”

This statement is transparently absurd. The inevitable dismissal of charges against the accused players will expose not the “guilt” of their accuser, a black woman, but the ethical and possibly criminal misconduct by two white males, Mike Nifong and Sgt. Mark Gottlieb.

Without question the passage he quotes is problematic and revealing of the biases she brings to the incident and its aftermath. But it’s Johnson and not Holloway who pushes it over into absurdity. Here’s the original (emphasis added):

In nearly every social context that emerged following the team’s crude conduct, innocence and guilt have been assessed through a metric of race and gender. White innocence means black guilt. Men’s innocence means women’s guilt.

Not only leading into the quote that Johnson extracted but throughout the article Holloway makes it clear that she’s writing about the social and not the judicial realm. Scan it and you’ll find that her concerns are with “the critical social indicator of the event,” “the final measure of its cultural facts,” “[j]udgments about the issues of race and gender,” “aspects of [the team’s] conduct that extend into the social realms of character and integrity [and] should not be the parameters of adjudicatory processes” and the “moment of transition… to the courts to handle the charges of rape, sodomy, and assault, and to the university to handle the matter of culture.” Johnson doesn’t criticize the distinction, he just ignores it.

To compound the misrepresentation he turns what was for Holloway an observation about how the case had been discussed and interpreted into an imperative—one that amounts to Holloway “preemptively dismiss[ing]” any result arrived at in court, or so he fantasizes. The transformation goes a long way towards turning those two pithy sentences about whose innocence means whose guilt into Holloway’s motto in Wonderland, where it’s pointless to try to explain or understand it, or fuss about keeping it in context, since absurdity is par for the course.

As a way of showing the limitations of Holloway’s black-and-white interpretation, Johnson’s counterexample of the white men who were pushing the accuser’s case at all costs is good, but merely pointing out her limitations apparently wouldn’t make her wrong enough. Despite his unwavering faith that there was no rape, he tacitly absolves the accuser of knowingly making a false felony charge, which is itself a felony. As it happened the Attorney General chose not to pursue charges against her, deeming her incompetent, but that wasn’t a foregone conclusion six months before when Johnson was writing this.

While he amplifies her verdict about the lacrosse team’s guilt to the point of absurdity, he takes the opposite tack and trivializes her misgivings about serving on the CCI committee, summing them up with the dismissive comment that she just “doesn’t like the time and effort associated with committee service.” It’s delivered with the knowing air of an academic insider but turns out to be as vacuous as it is patronizing. It’s clear from “Bodies of Evidence” that she found the CCI committee to be a burden, and earlier that summer she said the same thing more bluntly to a reporter for Diverse magazine. But it only takes a quick glance at her record at Duke to see that she’s no slacker. Between 1995 and 2004 she chaired the all-important Appointments, Promotions and Tenure Committee for a year, then was director of the African and African American Studies (AAAS) program for three years, and then Dean of the Humanities and Social Sciences for five years. She also served on the Executive Committee of the Academic Council in the late 90s. The steady involvement in high-level decision making and policy setting reinforces what’s already perfectly clear from “Bodies of Evidence”—it’s the circumstances surrounding CCI in particular that made it feel onerous to her.

She frames the CCI as a grim rerun of the work that went into the Women’s Initiative at the end of Nan Keohane’s presidency. She and others like her—those “visibly associate[d]…, in terms of race and gender, with the imbalance of power”—were in the aftermath of the lacrosse incident again being asked to “labor on newly invented committee structures and [be available] for public and private consultations, conversations, and often intense confrontations… despite and amidst the growing acclamation of support for the team.” It seems that from her perspective the university had compartmentalized the business of equity and made it an extra burden to those it acknowledged to be disadvantaged. That the administration was, in her view, receptive to those voices of acclamation for the team even as it asked her to do battle with them added insult to injury. But as far as compartmentalization goes, her objections seem to go beyond the demands it makes on her. In an April 2007 editorial in the Duke Chronicle she calls on Duke to step away from what she calls “institutionally produced difference” in recruitment (specifically, to bring prospective African American students to campus as part of the general mix instead of setting aside special invitational weekends for them). If I understand her right, what stands in the way of de-compartmentalization at the highest level is that the university doesn’t have its own internal compass when it comes to diversity (as it seems to with athletics) so instead it responds to crises or complaints by rounding up the usual suspects, including herself, to guide, advise, browbeat, beg, etc.

From the perspective of Johnson and other liestoppers, Holloway’s view of the lines of influence on campus is horribly backwards. It was her and Lubiano and their comrades who were yanking the administration’s chain, goading it into steamrolling coach and players. Cut out the derision and paranoia and add some symmetry and they have a point. What’s interesting to me is how she puts herself and like-minded committee-burdened colleagues on one side of the battle lines and on the other side puts a vague but vocal crowd of the team’s supporters. What’s missing is some recognition that in the same public space as the “growing acclamation of support for the team” there was denunciation that fed it, and that was hard for many to distinguish from her stated positions. And she obscures her own influence by dwelling on the demands the university was placing on her, only one side of what I’m sure had long been a negotiated balance of mutual and competing interests.

At the end of the recruitment editorial she acknowledges that she’ll be seen as contradictory. And it’s reasonable for the curious and concerned to wonder how she reconciles the “listening” statement, with its generalization based on race and gender, with her own objections to race- and gender-based judgment and compartmentalization: her complaint about being singled out for service based on identity, her sensitivity to race and gender in proclamations of the team’s innocence, and her readiness to de-emphasize racial identity in the recruitment process. She and her colleagues could have done a much better job of fostering debate and understanding on many fronts, including these. But for the stick figures in Wonderland there’s nothing to reconcile, only forgone conclusions.

Since Johnson’s criticism of Holloway and other Duke faculty raises such serious questions about their value and influence at the university, you’d think Holloway’s recently-completed five years as a dean would call for some attention. The closest I can find to Johnson following the trail is a December 2006 post that, by way of holding Wahneema Lubiano up to show how quality is sacrificed for diversity, features Holloway and her mentor Bill Chafe in their administrative roles as AAAS program director and dean of arts and sciences, respectively. That means that Holloway’s eight years first as director of AAAS and then as an associate dean are reduced to the hiring of Lubiano and Houston Baker and her cronyship with fellow suspect Chafe, plus some miscellaneous insinuations about her “dubious conception of ‘quality’,” biased search committees, and the like. Her job as dean was to oversee faculty development in humanities and social sciences. It was never a secret that growing the proportion of minority and female faculty was a priority for Holloway and Chafe—mutual interests around that agenda must have been explicit when she was offered and took the job. Five years on the job, and, I’d imagine, some involvement with the hiring and promotion of dozens of faculty members who were mostly white or male or both, plus the allocation of tenure lines, funding, strategy, and presumably lots of mundane details. Did she nonetheless spend her time scouring the countryside for angry black lesbians in wheelchairs to foist on long-suffering search committees? Was she the ideology-driven automaton Johnson portrays? If so, I can’t find any evidence of it (though since I don’t see her as a sinister force I’m not motivated to spend a lot of time digging). The strongest impression I can find of her personality as dean is a talk about the Big Problem of the university “allowing its institutional values to follow the money.” It doesn’t read like the work of a single-minded diversity zealot.

That doesn’t mean that I think she contributed nothing to the strife. In retrospect, the impulse to flee that Holloway relates in “Bodies of Evidence” seems to have been a good one—she was the right person, perhaps, but it wasn’t the right time. In the article she suggests that the lacrosse program was treated leniently because of Duke’s exaggerated regard for athletes and athletics (see, for instance, her comments about the self-written code of conduct and the interim coach who was a former teammate). It seems to me she doesn’t distinguish the program from the players and so ends up disregarding a range of informal and personal consequences. Things came to a head in January 2007 when she very publicly resigned from the CCI after the rape charges were dropped and two of the three indicted students were readmitted to Duke (the third had already graduated). The attacks on Holloway seem to have been especially intense and personal, and at that level her by-the-books reaction to the students’ readmission may be understandable. But to me it comes across as an entrenched position, perhaps based on an institutional orientation that dwells on official sanctions and doesn’t account for the personal toll of being targeted by abusive prosecution as well as widespread, thoughtless and sometimes vicious condemnation in the place that used to feel like home.

By writing criticism that is neither accurate, insightful, or constructive, that’s most effective (whatever its intent) at reducing her to an easy target, Johnson seems determined to grant one of Holloway’s points—CCI service is a “battlefield.” Like the knee-jerk opinions of her more hateful and less guarded critics, his analysis is not a matter of facts but of faith. It reads like a misogynist’s eye-rolling caricature. Of course her race- and gender-based judgments are reflexive and know no bounds—what else would a black feminist have on her mind? Of course her misgivings about the demands of committee work amount to whining that she’s not just a victim but “the victim of the affair” (my emphasis)—what legitimate complaint could an overpaid diversity-quota feminist have? And if she criticizes female students who don’t see things her way, of course she’s denouncing them as “effectively traitors to their gender.” I don’t actually believe that Johnson is Rush Limbaugh’s soulmate, and obviously I don’t know what’s going on in his head. I can’t find much more fact or substance in his criticism, though—the semblance of analysis is all about stretching and bending her text to fit the mold, though its goosed up with plenty of rhetoric.

(It’s hard not to wonder what Johnson actually believes, about feminism or whatever, but it’s irrelevant when it comes to evaluating DIW. The morals and beliefs that matter to Wonderland are defined by the charges he levels, and he rarely hems himself in with firm statements of principle. But there is enough flexibility with respect to ideology to separate Johnson from blowhards like Limbaugh. For example, his sympathetic reaction to blogger, Duke alum and self-described feminist Natalia Antonova when she found herself butting heads with “the larger feminist community” over the lacrosse case. It’s a case study in things changing and yet staying the same—sure he can write sympathetically about a feminist (a couple of them, actually), but the feminist world, like Wonderland, has to be neatly divided between right-thinkers and wrong-thinkers. Still, the entry is a much-needed example of the better side of DIW.)

You’d think it would call for some strong language and a hard line about what women should and shouldn’t do to paint the young women on the lacrosse team as traitors. Holloway’s only comment that’s directly about the team is that she wished they would display the word “justice” instead of “innocence” in order to express their solidarity with the indicted men. It doesn’t read like outright condemnation to me—the tone is more regretful, both about the team’s decision and Holloway’s own failure to speak up (it turned out to be a moot point because the women decided to display the indicted players’ jersey numbers instead). She does tie her opinion of the word “innocent” to her view that the culture of men’s sports promotes a shallow kind of loyalty. A debatable point, like so much else here, something she acknowledges by framing it as counterpoint to the critical but ultimately more positive comments of Catharine Stimpson, in the issue’s featured article. What she never does is draw a line in the sand that no decent woman should cross—the notion that she’s drumming the women’s lacrosse players out for somehow betraying their gender is a figment of Johnson’s agenda-driven imagination.

As if the overblown misrepresentation wasn’t enough, Johnson tacks on a red herring, suggesting that there’s a clash between Holloway’s critical comments about the women’s lacrosse team and her stand in support of free speech. She never says or implies the students should be silenced or sanctioned for speaking out. Perhaps she would like to have changed their opinion of the case or of their male counterparts—only she knows that. All she contemplated doing, though, was to suggest that the women express themselves with a different word. They continued their public support for the indicted men, and one of them, Rachel Shack, wrote an editorial in the Chronicle that took Holloway to task for not “remain[ing] loyal to what Duke has always stood for.” As far as I can tell Shack wasn’t denounced by Holloway or anyone else for her efforts. If Johnson thinks she was overly nasty about the student athletes that would absolutely be grounds for criticism, but on some other basis—it’s the essence of free speech to be confronted by criticism that can be answered by more speech, and that’s what happened.

And then there’s Johnson’s belief that if Holloway had made her suggestion, the players would surely have insisted that she explain how she could ask such a thing after signing something as unjust as the “listening” statement. That’s not the smackdown Johnson seems to think it is but a missed opportunity—it’s a conversation that could have been informative and even reassuring to both sides, though for all I know it might have been angry and fruitless. The message of DIW for any students at Duke who were reading was that the appropriate stance towards professors like Holloway was defiant and dismissive. The lack of interest in fostering anything like a constructive debate is, I think, a fair measure of his real interest in Duke as a community.

Writing about recruitment, Holloway envisions a fully integrated weekend gathering of prospective students that, “in their artistic, creative, high-SAT, leadership, stellar community-work glory,” is “diverse, inclusive and an absolute joy to watch interact with each other.” Notably missing from the lineup of accomplishment is athletics, and that sheds some light on what I see as the blind spot in her view of the women’s lacrosse players. Reading the profile of women’s lacrosse player Yani Newton in an ESPN article by Jon Pessah, it feels to me a little like a glance at the networks that would develop in the crowd Holloway imagines once they settle into the rough-and-tumble of campus life. That might be putting too much stock in one article, but it meshes with my own impression of Duke students. It seems silly to me to dismiss the idea that the public support the women’s lacrosse team gave to their male counterparts was at least in part a reflection of the culture of sport. But it sells both the women and the men short to reduce their bond to shallow team loyalty. I’d say the deeper loyalty of friends was at least as much in play.

Now read about the dangerous Professor Neal, if you want.

~   ~   ~

The opinions here are strictly my own. Prof. Holloway is not responsible for my opinions and interpretations and I’m not responsible for hers. If anything I say about her or her work bothers you, please complain to me and not to her.

{ 5 } Comments

  1. Natalia Antonova | March 29, 2008 at 06:28 | Permalink

    Hello! I found this via a trackback to my site.

    I like to think I know Prof. Holloway fairly well, and I think she’s a great lady who got beat down a number of times - I may not always agree with her, but I like the idea of civil disagreement, as opposed to, you know, the uncivil kind.

    I’ve thought about the issues surrounding Duke Lacrosse a lot - since I wrote my original post, since I left Durham, etc. I’ll think about them for the rest of my life, probably (well, unless I get senile first). Like many people, I have blind-spots.

    I really appreciate encountering nuanced thinking on the subject.

    ~   ~   ~

    I appreciate the encouraging note, and the personal angle on Prof. Holloway. I think everyone has blind spots—I know I do. I wholeheartedly agree with KC Johnson that a couple of years ago Natalia was saying things that needed to be said.

  2. RRH | April 27, 2008 at 03:37 | Permalink

    Upon a full reading of reharmonizer’s article, I am relieved to find that much of my faith in him is restored.

    First, just as an overview of the situation, I note that this is one of many, many arguments over what an 88er (in this case Karla Holloway, but there have been so many of these) “really meant” when s/he wrote this or that. I would ask reharmonizer to reflect on what we can judge about the most elemental competence of purportedly intelligent people when what they write can be interpreted, and quite reasonably, in so many different ways.

    The body of reharmonizer’s article consists of two parts. In the first, he criticizes KC’s critique of Karla Holloway. I find this the best part, but I would offer two related defenses to KC’s critique. First, KC critiques of the 88ers are hamstrung by his own adherence to “collegiality”. After all, the charge against this brilliant scholar during his tenure fight was his alleged “lack of collegiality”. It is apparent that he strives very hard to avoid that charge again being leveled at him. In the case at hand, it prevents him from addressing some of the possible wellsprings and motives of Holloway because to do so would cause shrieks of “uncollegiality!!” from those who acted with the opposite of collegiality towards the accused students. The second reason is that KC is not trained as an inquisitor. He’s an academic; he researches and writes. He’s an expositor, not a prosecutor.

    The other part of reharmonizer’s is an attempt, to which I alluded earlier, to explain what Holloway maybe, possibly, perhaps, might have “really meant” when she wrote what she wrote. I would ask reharmonizer — while he is imagining all the possible benign interpretations of Holloway’s writings — to ask himself: If there are such plausibly benign interpretations, why did Duke pay tens of millions of dollars (my estimate) to keep Holloway off of a witness stand?

    Holloway should thank her lucky stars if KC Johnson is the harshest examiner she ever faces. And she doesn’t deserve to be defended by scholars of reharmonizer’s quality.

    RRH

    ~   ~   ~

    It’s clear that we have very different, and probably irreconcilable, perspectives on Holloway specifically and, in general, Duke faculty reaction to the lacrosse case. Given that, I appreciate your efforts to read, understand, and respond. I don’t claim to be passing any kind of definitive judgment about Prof. Holloway, especially not in connection to legal aspects of the case, which I’m not following that closely.

    It won’t surprise you that I don’t find the considerations of experience/training and collegiality to be much of an excuse for what I see as an excessively biased and uniformative reading of Holloway’s texts. I’m more sympathetic to your point about the range of reasonable interpretations. For sure, Holloway’s “Bodies of Evidence” could have been a better and clearer article than it was. But I think the point is just as valid flipped on its head—all texts are subject to interpretation, and KC and others have been much too quick to pronounce the one and only reasonable interpretation of things. As with most everything, this isn’t an either/or, one-side-is-right-and-the-other-is-wrong proposition.

  3. RRH | April 28, 2008 at 01:52 | Permalink

    As I said to you in private, I am intending to make a comment on your article about Prof. Neal. However, I have been unable to get out of my mind something you said in your reply to my comment. Actually, it was the first thing you said: “It’s clear that we have very different, and probably irreconcilable, perspectives on Holloway specifically and, in general, Duke faculty reaction to the lacrosse case.” [Emphasis added.]

    I wondered, when I first read that, “Why ‘irreconcilable perspectives’?” It’s dawned on me: Our perspectives of ‘the Duke faculty reaction to the lacrosse case’ are rooted in how we perceived the case when we first heard of it and what our perceptions were of the case on the date of “Listening” ad three weeks later. If our perceptions of the likely veracity of allegations in that initial time period were significantly different, then that would explain why we will always view the actions of the 88ers in “irreconcilable ways”. If you thought — in the early days of the case — there was at least some truth to the charges, that at least “something bad happened”, then you will forever be willing to project your feelings onto the 88ers, resulting in you seeing their actions, at worst, as less than cold-calculated and self-aggrandizing betrayals of the team members.

    I wonder if I could ask you: On a scale of 1 to 10, with 1 being “almost certainly false” and 10 being “almost certainly true”, how did you perceive the first report that Duke lacrosse players had raped a stripper at a team party? I would appreciate if you could explain why you assign whatever number you do. I promise to reciprocate, if you are interested (btw, my number was “1”).

    ~   ~   ~

    I thought that this was also meant as a private communication. But I see in the DIW comments that RRH is expecting it to show up here. So here it is.

    As to the question, as I wrote in my first lacrosse-case post, I was very much preoccupied in the fall of 2006 when the allegations surfaced. I can’t reconstruct my first reaction to the allegations with much clarity. I believe that my superficial opinion, based on hearing haphazard bits of news, hovered around 5 on RRH’s scale of 1 to 10. I didn’t think of it as a sure thing either way. There are four impressions that I remember from fall 06 and they pulled in opposite directions—on one side, the details of the party, which I’ve always found to be fairly revolting, and the McFadden email. On the other side, early doubts about the accuser’s credibility and sanity, and a feeling at the time the indictments were announced that the players charged seemed to have been picked out more or less at random.

    I wasn’t aware of the “listening” ad until many months after it was published. I read about it—in DIW, probably—before I actually read it. After reading it I found the criticism vastly overblown (I still feel that way). There seem to be irreconcilable differences in the impression that ad leaves—that’s one basis for the comment RRH is talking about. I don’t think I project anything on the “88ers,” though, since I don’t think it’s a meaningful grouping.

    I was also reacting to RRH’s inclination to think about the situation in legal terms—it seems like attorneys have their way of looking at the situation and it’s quite different from mine.

  4. RRH | May 9, 2008 at 03:55 | Permalink

    “The lawyers see this, and they’re like, ‘Oh my God. What were they thinking?’” — Tony McDevitt, lacrosse player, on the attorneys’ reaction to the ad of 88.

    As perhaps your only supporter at DiW, I hope you will keep that quote in focus as you read the rest of this comment. I say this because I know you have called the Listening Ad “a blip” and criticism of it “vastly overblown”.

    It is true, as you say, that “attorneys have their way of looking at the situation and it’s quite different from [yours]”. Based on the events of this case I could say something similar about professors. At least, some professors. The distinction is important because I assure you that all attorneys had substantially identical reactions to the 88ers ad— the lacrosse players’ lawyers, the university’s lawyers, lawyers who were uninvolved in the case, tall lawyers, short lawyers, black lawyers, white lawyers, brown lawyers, sober lawyers and drunk ones. You get the picture.

    Some of us may be scoundrels of the first rank, but few of us are stupid. We are chosen on the basis of the LSAT which focuses most strongly on “reading comprehension”, “logic”, and the ability to “draw proper inferences and deductions”. Then we are subjected to three years of intense study designed mostly to make us better at these abilities. The reaction of attorneys to that ad, in a word, was “shock”.

    In seven words, the reaction was what Mr. McDevitt reported above.

    The word “tort” comes from the same French root that gives us “torque” - in other words, “to twist”. It means that something “is twisted”, is … wrong. These are actions that are not “crimes” (usually) but are recognized as being so harmful to society that a legal remedy is justified. There are four elements of a action for tort: Duty, Breach, Causation, and Damages. This was the type of action brought against Duke.

    What you need to understand, Mr. Zimmerman, is that this ad—and Duke’s seeming to reward some of the 88ers and the 88ers own subsequent statements—was what lawyers call a “damages multiplier.” This is the kind of document that causes jurors during deliberations to send out notes asking, “Can we award more money that the plaintiff has asked for?” or, “How much is, ‘Every last cent the defendant has’?” If you don’t believe that, let me suggest to you to read the comments in The Chronicle to the above-cited article. That’s not Liestoppers, not DiW. That’s the jury pool.

    In the above paragraph, I’ve probably just quoted, substantively, what Duke’s lawyers said to Pres. Brodhead and Chairman Steel. If you think otherwise, do this experiment: Find one or more lawyers who are familiar with the case. Ask them two questions: (1) “How much money do you think Duke paid to the three indicted players last year?” and then, (2) “How much money do you think Duke would have had to paid if not for the ‘Listening Ad’ and the fallout (university’s positive response and subsequent statements of 88ers)?” My guess is that a typical answer would be “the plaintiffs would get about 10-times as much with the Ad than without it.”

    I think, given my reading of your past writings, that you are thinking at this point: “So what, I’m not addressing the legal case. I’m offering a critique of KC Johnson!” I submit, Mr. Zimmerman, that you are acting as a juror—and a bad one at that. First, you fail to understand the case at all. Second, you consider facts not in evidence—to wit, “I know some of the 88ers, and they are really nice people”. Finally, you fail to exclude unreasonable inferences.

    You seem to think that (at least some) of these 88ers are “nice people” and that someone could “make sense” out of their writings. The only 88er of whom I’m aware who in this episode acted with any character is Arlie Petters—by quickly disassociating himself from the Group. From my personal perspective, Prof. Petters by his actions has absolved himself of blame in this incident. What an insult it would be to Prof. Petters for the other 88ers to be forgiven without repentance.

    And repent for what, you ask? How about repent to you, Prof. Zimmerman? After all, their actions drained tens of millions of dollars in resources out of Duke—millions that good professors like you could have used. Do yourself a favor: Divide up what you think the Ad cost Duke (my guess $20 million) and figure out how much you or your department lost. Next time you see your friends in the 88, you can have that to talk about.

    No one can “make sense” of what the 88ers say, not about this case. For an attorney, the prospect of getting Holloway or Lubiano on the witness stand—well, the testimony of each would be worth an extra $1 million in added damages. The Cathy Davidson article in which she tried to say the ad was “really” about “national healthcare, affordable childcare, and Canadian baby seal hunting”: An extra $1 million in damages even without her on the stand. Jurors hate people who try to insult their intelligence. (I made up the part about Canadian baby seal hunting.) I can think of at least one or two professors who might not even be allowed off the stand - by the time their testimony ended, the judge could be ordering involuntary psychiatric examinations.

    I didn’t go to law school until my mid-thirties. I mention this only to show that I can recall a time when I “thought normally”. I realize that lawyers can seem cold - caring about little besides facts, logic, and “reasonable inferences”. I want you to know that I know very little about melody or harmony - and would never think that just because I can sing means that I can judge a piece of music half as well as you can. Is that a sugarcoated way of saying that I think you are out of your element? I plead guilty.

    I hope you will accept this in the spirit it is written. I hate to see you looking like the constable who stands over the corpse — ridden by bullets, pincushioned by knives, and decapitated — and says, “What body? …. Oh, that one …. Well, it looks accidental.”

    If you want to be taken as a serious investigator — even an investigator of the investigation — first you must acknowledge the crime.

    ~   ~   ~

    That’s quite a dose of perspective—a pretty good payoff from a couple of offhand comments on my part. And for whatever it’s worth my remark about the difference between an attorney’s perspective and mine was a straight-up observation, not a sarcastic jab at attorneys.

    Brian Leiter probably did pretty well on the LSAT, and he clearly didn’t have the same reaction to the “listening” statement that you had. Maybe a law professor with a JD doesn’t count as a lawyer, or he’s the exception that proves the rule.

    What you say about the “listening” ad as a damages multiplier is interesting. I don’t see any justice in those figures, and it’s definitely a shame if it did in fact cost Duke that much. It wouldn’t surprise me at all to find that, with respect to the ad, I’m out of step with a typical jury pool. I don’t see any reason why I should try to read the ad like a lawyer or a juror, and even less reason to treat their readings as grounds to dismiss everything else the “88ers” say.

    I’ve never said that any particular professors are “nice,” and whether they are or not is completely irrelevant. And after 10 years as a part-time “visiting” instructor at Duke, the difference between the pittance they throw my way and nothing is not something I’m going to get worked up about.

    I don’t take reactions to things I write about the lacrosse case personally, so no need to worry about whether I get the spirit of your comment (I think I do). And I don’t care one way or another whether I have any supporters on DIW. I do appreciate that you seem to make a sincere effort to understand what I’ve written and respond constructively. That sets you apart from most of the present-day commentariat and from the master of ceremonies as well.

  5. RRH | May 10, 2008 at 20:55 | Permalink

    I just realized that I forgot to tell you why, on a “Believability Scale” of 1 to 10, I rated the initial reports of the lacrosse case as a “1”. So here it is, very briefly.

    Attorneys have heard – or heard from other attorneys – nearly every cockamamie story there is. Thus, we have developed internal “bullshit-detectors” that are so finely tuned that they are is probably exceeded by only those of cops. Thus, when I heard the first reports about lacrosse case in 2006 (on ESPN), I was skeptical to the point just short of disbelief. The story is that several Alpha-male college students were going to risk reputations, diseases, paternity lawsuits, future careers, and family shame to put their most precious body parts into a party stripper? As we say in the legal business, that story already “strained credulity”.

    And that’s even without the added allegation that the sex was involuntary. A party stripper with such fastidious morals and high standards of sex partners that she was going to turn down a chance for mating with such Alpha-males? Again, the bullshit-detector is sounding like an air raid siren. Hell, if nothing else, the chance for a fat paternity settlement alone makes this notion exceedingly unlikely.

    And that’s before I knew the races of the alleged victim and perpetrators. I assumed from the first reports that all involved were white. When I learned later (a week or so) that the “victim” was black, I had no more doubts. For all the talk in this case of “racialized sexual violence”, all attorneys know that’s pretty nearly a one-way street. Single-offender white on black rapes are so infrequent that they show up usually as asterisks in crime statistics, and white multiple offender rapes of black women are barely more frequent than carjackings by Amish farmers.

    But apparently a completely fictionalized history has seized much of American society making the fantastical charges in this case plausibly true in some circles – notably in academia and media. At a minimum, Mr. Zimmerman, you and everyone else who was in one of those circles should educate themselves as to the true character of this nation’s history (past and present) of “racialized sexual violence”. It might save your university millions of dollars in the next hoax.

    ~   ~   ~

    This is also quite interesting. I may have more to say about it later, but I’ve been sitting on these comments for too long. [Update: I did eventually have more to say about it.]