MCFADYEN et al v. DUKE UNIVERSITY et al

Filing 259

Additional Attachments to Main Document. Re #254 RESPONSE, (Attachments: #1 Exhibit, #2 Exhibit, #3 Exhibit, #4 Exhibit, #5 Exhibit, #6 Exhibit)(EKSTRAND, ROBERT)

Plaintiffs'

EXHIBIT No. 6

THE NEW YOI\KER
FACT
LET TEr\ FH.0M DUf\HA M

BIG MEN ON CAMPUS
by PETER J. BOYER
The lacrosse furor and Duke's divided culture.
Issue of 2006-09-04
Posted 2006-0 8-28

In the summer of2003, a search committee from Duke University set out to find a successor t
its departing president, Nannerl Keohane, and decided upon the dean of Yale College, Richard
H. Brodhead. Duke had long striven for a place among the top tier of American universities, at
selecting a new leader from among the "upper Ivies" affirmed Duke's arrival.
For Brodhead, though, the decision was the most difficult of his life. He had come to Yale fror
Andover in 1964, at the age of seventeen. After taking a degree in English literature, he had
stayed on for his postgraduate work and a career in teaching. He had had offers from other
schools over the years, including university presidencies, but New Haven held him fast. He wa
a gifted teacher; his English-literature courses were student favorites. Even after his move into
Yale's administration, Brodhead remained so thoroughly the literature professor as to embody
the type-shy, prone to a slight stammer, but speaking in long, elegantly formed passages, fillt
with literary allusion.
The man charged with bringing Brodhead to Duke was Robert K. Steel, a trustee and chairmar
ofthe search committee, who was a Duke graduate and a native of Durham, North Carolina,
where Duke is situated. Steel, then a vice-chairman of Goldman Sachs, was a man of forceful
personality and overflowing confidence, a driven achiever who liked having a clear goal. Steel
knew how much his 1973 Duke degree had appreciated in value, and, regardless of what
outsiders thought, he was convinced that Duke's destiny was to set its own standard. Steel and
his committee vice-chair, the Duke law professor Sara Beale, met Brodhead at a small restaura
off Interstate 95 in Connecticut and put the school's case to him. Steel knew something about 1
Ivy League (he teaches a class at Harvard's Kennedy School of Government), and he believed
that the rich and venerable old schools were a bit sclerotic. Duke was young and willing to tak,
risks, and, as Steel would say, "We're in a hurry."
Steel talked to Brodhead about the ways in which Duke and Yale were similar-their size, the
balance of teaching and research, their professional schools, and so on-and about one big
difference: sports. Yale, with the rest ofthe Ivy League, had long ago given up big-time footb"
and competed in all sports with non-scholarship student athletes. Duke means to contend at a
championship level in sports across the board, and to do so without compromising academic
standards. It is an audacious proposition-only two other private institutions, Stanford and
Northwestern, even try it-and the undertaking alone attests to Duke's vigor, and its idea of
itself. Duke's basketball coach, Mike Krzyzewski, who is known on campus as Coach K and h
won three national championships with smart, disciplined players, exemplified the ideal.
"Is that something you want to be part of?" Steel asked.

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-

On June 28,2004, Duke's ninth president moved into his new office, in the Allen
Building, near the university's main quad. As Brodhead was getting settled, Joe Alleva,
Duke's athletic director, rushed in with urgent news: the Los Angeles Lakers had offered
Coach K the job of head coach, and Krzyzewski was thinking of leaving Duke.
After forty years in the academy, Brodhead, on his first day in the new job, was facing a
crisis wholly foreign to him. But he understood that losing the star coach would be a
disastrous beginning, and he took Krzyzewski to dinner and desperately sought common
ground. There was no way that any school, even Duke, could compete monetarily with the
N.B.A. (the Lakers had reportedly offered Krzyzewski forty million dollars), but
Brodhead did have one edge: his status as an academic heavyweight. He told the coach
how highly valued he was at Duke, not just for his winning but for his talents as a teacher,
and if Krzyzewski stayed he would retain his auxiliary position as a "special assistant" to
the president. As the days passed, Brodhead found himself joining the crowds of students
chanting "Coach K, please stay!" and helping to fill a human chain forming the letter "K"
outside Cameron Indoor Stadium. On July 4th, Krzyzewski made his decision: he would
stay. But he waited until the next day to relieve the president of his agonies.
"What you saw there was the lay of the land," Orin Starn, a Duke professor who
specializes in the anthropology of sports, recalls. "The fact is that it's the basketball
coach, Coach K, who's the most powerful person at Duke, and in Durham, and maybe in
North Carolina-much more powerful than the college president himself. So Brodhead-I
mean, there was almost this kind of ritual humiliation, this ritual obeisance, or fealty, that
was required of him." Whatever it was, Brodhead was plainly grateful for the outcome,
and at the ensuing press conference he demonstrated that he had mastered the language, at
least, of the Duke idea. Krzyzewski was a "great, great coach," Brodhead said, but he was
equally valued by Duke as a molder of character, a truly serious person.
This July, two years after that ordeal, I visited Brodhead in his office. He told me that he
had expected surprises in the job, but he could not have imagined that sports would have
presented him with decisions of such gravity. As we spoke, three of Duke's lacrosse
players, one of them a new graduate, stood accused of gang-raping a local woman who
had been hired as a stripper for a team party in March. The event, and its aftermath, had
cast into doubt the central tenet of the school's identity-the fragile balance between
sports and scholarship. When I asked Brodhead how his experience at Duke has informed
his thinking about the place of big-time athletics in the university, he cited Homer. "If you
go back and read the Odyssey, who is Odysseus?" he asked. " 'Sing in me, Muse, and
through me tell the story of that man skilled in all ways of contending.' And his ways of
contending are intellectual, and they're strategic, and they're political, and they're
athletic. And so it seems to me that that would actually be at the foundation of it-it's the
image of excellence. I'm not saying that I would embrace athletics on any terms. But
that's its relevance. And then you have to couch it in the right terms, to have it be
consonant with the other values of the university. There are other things as well. It's about
working in teams, about learning to do things together that people can't do alone. The
metaphorical value of sports is actually quite deep, when you stop and think about it. Our
culture doesn't ask us often enough to think about it."

Just after 1:30 A.M. on Tuesday, March 14th, a Durham police sergeant named John

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Shelton, responding to a 911 dispatch, pulled into the parking lot of a Kroger
supermarket, about a mile from the Duke campus, where, according to his report, he
encountered a black woman slumped in the passenger seat of a dark-colored Honda.
"She's just passed out drunk," Shelton concluded. He popped open a capsule of ammonia,
waved it under the woman's nose, and tried pulling her from the car. The woman, rousing,
grabbed hold of the car's emergency brake, but she lost her grip and tumbled out into the
parking lot. The Honda's driver said that she had offered the woman a ride home, because
she had seemed incapable of making it on her own. The subject had no identification. She
was wearing a see-through red garment (with no underwear) and one white high-heeled
shoe.
Shelton conferred with Officer Willie Barfield, who had just arrived. Without an address,
the men couldn't take the woman home, and Shelton considered her to be too intoxicated
for a twenty-four-hour lockup. He decided on a county facility called Durham Center
Access, a sort of halfway house/emergency room that helped indigents through substanceabuse and psychological crises. At the Center, Barfield and another officer stood by as a
staff nurse went through the standard screening process with the distressed woman,
assessing her for risk of suicide, danger to others, substance abuse, and victimization.
The nurse asked the woman if anything had happened to her.
"Yes."
Had she been raped?
"Yes."
With that response, the woman became a dramatic archetype. In the coming hours and
days, a series of narratives concerning her would be composed by cops, journalists,
politicians, activists, lawyers, and by the woman herself.
Barfield called Sergeant Shelton and told him that the woman was saying that she had
been raped inside a house at 610 North Buchanan Boulevard, near the Duke campus.
Shelton knew the address. Earlier that night, he had been called to the Buchanan house on
another 911 complaint: a woman reported that a young man at the house had shouted a
racial epithet at her and her friend, a black woman. Shelton had gone to the site, a modest
white clapboard house with empty cups and beer cans strewn about inside, but when he
knocked on the door no one responded.
Shelton instructed Barfield to transport the woman to Duke University Hospital's
emergency room, and he met them there. She told Shelton that she was a stripper who'd
been hired, with another woman, to "put on a show" for a group of men at the Buchanan
house. She said that she had been groped, but that no one forced her to have sex. She'd
had an argument with the other stripper, she said, and someone had taken her money.
Shelton stepped outside and called the police station. He told his watch commander that
the alleged rape victim had recanted. But within moments he got word that the woman
was again claiming rape, prompting yet another call to the station.
Several cops from the Duke University police force were also in the emergency-room area
that night, including an officer named Christopher Day, who had apparently been standing
with Sergeant Shelton when he told his watch commander about the accuser's changing
stories. His report of the incident reflected the prevailing view among the cops who had

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'--

dealt with the woman: "The victim changed her story several times," Day wrote, "and
eventually Durham Police stated that charges would not exceed misdemeanor simple
assault against the occupants of 61 0 N. Buchanan."
When Robert Dean, the director of the Duke University police, read the overnight
operations report, he did not find it unusual to see an incident from the neighborhood
around North Buchanan Boulevard. The university had cracked down on alcohol on
campus, and that had pushed students, and their keg parties, off campus, into rental
homes. Duke had agreed to have its force help the Durham police in patrolling the areas
near campus, and the school had just bought, for $3.7 million, several of the houses in the
neighborhood-including 610 North Buchanan-with the intent of removing them from
the student-rental pool.
A sexual-assault claim was more than just another nuisance complaint. Dean called the
dean of students, Sue Wasiolek, to inform her of it, and told her that the matter would
likely blow over.
Wasiolek discovered that the residents of the house were members of the Duke lacrosse
team. To any reasonably attuned school administrator at Duke, the term "lacrosse player"
summoned a particular profile. In the order of the social universe of Duke undergraduates,
the lacrosse players ranked at the top ofthe dominance hierarchy. They tended to be the
children of white, prosperous families, products of northeastern preparatory schools,
where the game is a fixture; after graduation most of them go on to lucrative careers in
fields like finance. They were capable, if not overly serious, students, and necessarily
well-disciplined athletes. They were also known as enthusiastically social creatures,
partyers of the very highest order, and prodigious drinkers, even within a culture inclined
to intemperance. In this regard, their marquee setting (in public, at least) was the
Saturday-morning football-season event known as Tailgate, a quasi-sanctioned school
function held in a parking lot before football games. The lacrosse boys, who stood out
among the revellers, wore themed costumes-superheroes, cartoon characters, etc. Their
effort at last season's final Tailgate was widely deemed their best, as it featured a foam pit
that facilitated a measure of "Girls Gone Wild" abandon.
It was a reflection of the lacrosse team's station at Duke that, when the school decided, in
2005, that Tailgate needed to be reined in (many revellers never bothered to leave the
party to attend the football game), administrators asked the lacrosse coach, Mike Pressler,
for help. His solution was to ask his team to meet him fifteen minutes before kickoff time,
and to proceed to the football stadium together-which they unfailingly did. In this
regard, the lacrosse players exemplified the "work hard, play hard" Duke ideal. As it
happened, Wasiolek, who likes to be called Dean Sue, was reasonably attuned to the
team's place in the school's culture, having been among those who attended the foam
party.

It was spring break at Duke, and the lacrosse players, because of their game schedule,
were among the few students on campus the week of March 13th. On Wednesday, when
Coach Pressler returned a call from Wasiolek, he was, characteristically, with his team, at
a group outing at a local bowling alley. After hearing of the incident at the Buchanan
house, he summoned his team captains-three of whom were residents at 610 North
Buchanan-and asked them about the party. He then called Wasiolek back and put one of

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the captains, Dan Flannery, on the phone.
Flannery, a senior, had made the call (using the name Adam) to an escort service. He now
told Wasiolek that he and his roommates had given a party, that there had been a good
deal of drinking, and that they'd ordered two strippers for entertainment. When the
women arrived, he said, one of them was incapacitated, and he supposed that she was on
drugs. The students paid the women, and asked them to leave early. The woozy woman,
Flannery said, eventually passed out, and had to be assisted to her car, at which point both
women drove away.
Wasiolek urged the students to be honest in their dealings with the authorities and to
cooperate fully with any investigation.
The next evening, March 16th, school officials learned that a search warrant had been
issued for the Buchanan house. The case was now being handled by two Durham police
investigators, the veteran sergeant Mark Gottlieb and a rookie investigator, Benjamin
Himan, who had been promoted to the position in January. Wasiolek telephoned Pressler,
who called the students at their house. He discovered that the three roommates-Flannery,
David Evans, and Matt Zash, who were team captains-had already let the police in and
had shown them around the place; when asked if they would go to the station to answer
some questions, they agreed. By the end of the search, the police had seized evidence
including four laptop computers, three digital cameras, a bathmat, a bath rug, five
artificial fingernails, a bottle ofK-Y jelly, and a stack of twenty-dollar bills.
At the police station, the three young men offered to take a polygraph test. The police
declined the offer, but questioned them extensively about the night of the party and sent
them to the hospital to have DNA samples collected. The boys had no legal representation
during this visit with police.
On Saturday, March 18th, the team had a home game against the University of North
Carolina, overcoming an early 6-0 deficit to win, 11-8. That weekend, the first accounts
of the alleged assault appeared in the local newspapers-police-blotter items that did not
mention the Duke connection. President Brodhead first learned of the incident on
Monday, March 20th, when the school paper, the Chronicle, reported that the scene ofthe
alleged crime was one of the off-campus houses that Duke had recently bought. Brodhead
telephoned Larry Moneta, the university's vice-president for student affairs, who
responded with the now common view of the matter among Duke officials: the accusation
wasn't credible, and nothing much was likely to come of it.
The Chronicle and the Raleigh News & Observer published stories in the following days
reporting that there had been a party at the Buchanan house and that alcohol had been
involved. In both accounts, Sergeant Gottlieb made a point of saying that the residents had
cooperated with the police. The narrative of the incident to this point, largely shaped by
the field cops who had first encountered the accuser, suggested the tenor and the pace of a
routine inquiry into off-campus student high jinks.

On

'-

the day that the Durham police searched the Buchanan house, March 16th, the
investigators Himan and Gottlieb drove to the accuser's home and heard her version of
events. Her account this time was more explicit: she had been attacked by three of the
men at the party, who had held her in a bathroom and raped her orally, vaginally, and

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anally, she told the investigators. And she knew her attackers' names-Adam, Matt, and
Bret.
It seemed like a breakthrough lead. There were players with those names on the team,
including three named Matt. That evening, two other investigators gave the woman a
chance to identify the men she was accusing and showed her a photographic lineup, using
pictures of the players taken from the team's Web page. The woman looked at the pictures
ofthe men. "This is harder than I thought," she said. She was able to pick out a few faces
of boys whom she remembered seeing at the party, but she could identify none of them as
her attacker. She did not recognize any ofthe boys whose names she had given to Himan
and Gottlieb.

The investigators decided to try another approach. On Monday, March 20th, Himan
telephoned Coach Pressler and said that he'd like to gather the whole team for an informal
meeting, at which he would speak to each ofthe players who had been at the party. A
local attorney, Wes Covington, who had handled the occasional student brush with the
law, told Pressler that he thought the meeting with Himan was a good idea. An
appointment was set up for the afternoon of Wednesday, March 22nd.
By this time, a few of the players had told their parents about the incident. Now, faced
with the meeting with the investigators, one ofthe players called his father, a Washington
attorney; the father insisted that the meeting be postponed, and quickly retained another
Durham attorney, Robert Ekstrand, to represent the boys.

'-

On Tuesday, March 21st, police prepared a second photographic lineup for the accuser.
She remarked that they all looked alike. She was also interviewed by Himan. In his notes
of that meeting he wrote, "She was unable to remember anything further about the
suspects." He also noted that the woman did say that she had drunk a twenty-four-ounce
beer before arriving at the party, and that she had performed for a couple in a hotel room
using a vibrator.
On Thursday, March 23rd, ten days after the party, Himan and the Durham assistant
district attorney David Saacks applied to Judge Ronald L. Stephens for a court order
demanding that all forty-seven members of the lacrosse team except one, who was black,
submit to photographs and DNA testing. In support of the request, Himan submitted the
essential text of his application for the earlier search warrant:
Two males, Adam and Matt pulled the victim into the bathroom. Someone closed the door to the
bathroom where she was, and said "sweet heart you can't leave." The victim stated she tried to leave,
but the three males (Adam, Bret, and Matt) forcefully held her legs and arms and raped and sexually
assaulted her anally, vaginally and orally. The victim stated she was hit, kicked, and strangled during
the assault. As she attempted to defend herself, she was overpowered. The victim reported she was
sexually assaulted for an approximate 30 minute time period by the three males.

Saacks said in the application that the DNA samples were crucial to the case. They would
"immediately rule out any innocent persons," he wrote, "and show conclusive evidence as
to who the suspect(s) are in the alleged violent attack upon this victim." Judge Stephens
ordered the students to comply.

-

Brodhead learned ofthis development as he was preparing to travel with Bob Steel by
private jet to Atlanta, to watch Krzyzewski's basketball team play L.S.U. in the N.C.A.A.
tournament. "It suggested that it was being treated with a degree of gravity and scope very
different from what I had been told heretofore," Brodhead says.

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That evening, the lacrosse players, accompanied by their new lawyer, Ekstrand, arrived at
the police crime lab in downtown Durham. The Raleigh News & Observer had got word
of their arrival and sent a reporter and a photographer to the scene. Seeing the journalists,
Ekstrand instructed the players not to answer any questions and to shield their faces from
the camera. The resulting image was that of a massive perp walk.
A News & Observer reporter located the accuser, and the paper published a profile that
was wholly sympathetic to her. A new narrative fell into place. The woman was a mother,
the paper reported, a full-time student at North Carolina Central University-Durham's
historically black state college, on the other side of town. She had been working dancing
engagements through an escort service for only two months, a job that helped to support
her family. "This was the first time she had been hired to dance provocatively for a
group," the paper reported. The woman said that she had arrived at the house expecting to
perform for five men at a bachelor party; instead, "she found herself surrounded by more
than forty." Moments after she and the other woman started their performance, she said,
the men "started barking racial slurs."
"We started to cry," she said. "We were so scared."
When the story was published, on Saturday, March 25th, the television satellite trucks
were already jostling for parking places in the circular lot near the Duke chapel. Exams
were nearing, and students found themselves confronted by national reporters at every
tum. Their stories relied heavily upon the warrant summation of Investigator Himan,
which had now been made public. A New York Times Op-Ed piece by the writer Allan
Gurganus provided an admiring critique of Him an's prose: "Its allegations of rape and
sodomy prove weirdly well written, more gripping reading than most detective novels."
Gurganus was among those sounding the emerging themes of the case, suggesting that the
fault might lie in the sport itself. ("Young male students are apt to take on the nature of
their particular sport. One early explorer, after witnessing an Indian game involving
hundreds of stick-wielding players, wrote, 'Almost everything short of murder is
allowable.' ") Lacrosse as a cause of sociopathic behavior was vigorously proposed, and
the sport's demographic cohort critically examined. "It's a sport of privilege played by
children of privilege and supported by families of privilege," the columnist David Steele
wrote in the Baltimore Sun. "The university involved is one of privilege."
A Duke law professor offered the opinion that young men who played helmeted sports,
which he called "sports of violence," were more likely to commit acts of violence against
women. "This is clearly a concern," he said. Several writers invoked the ancient American
taboo against miscegenation. ("White men portrayed black women as especially erotic,
more driven to sexual pleasure and expressiveness than white women," the Duke history
professor William H. Chafe wrote.)
The predominant theme in all the coverage, though, was the matter of the social
implications of the alleged assault-a black woman raped by white men, a black public
school contrasted with Duke, the perceived racial tensions in a town roughly equally
divided between blacks and whites. "The case has drawn national attention to Duke and
Durham while underscoring issues of class and race between the private university and the
city" (the Times); "The situation has exposed serious issues ofrace, gender and class
division" (the News & Observer); the case had intensified "undercurrents of privilege and
race in a blue-collar city of two hundred thousand that is forty-four per cent black while

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home to one of the nation's elite universities" (ESPN).
The Durham police, who three days earlier had emphasized the cooperation of the
Buchanan-house residents, now seemed to have adopted a strategy of provocation. On the
weekend of March 25th, a Durham police corporal named David Addison repeatedly
proclaimed the community's outrage. "We do know that some of the players inside the
house on that evening knew what transpired, and we need them to come forward," he was
quoted as saying on CBS News. "That brutal assault, that brutal rape that occurred within
that house, cannot be explained by anyone," he said on ABC. This led to much media
speculation on the team members' "wall of silence."
When lacrosse families and fans arrived on campus for a game against Georgetown on
Saturday afternoon, they were greeted by protesters, some carrying signs with messages
like "Don't be a fan of rapists." On Saturday night, two hundred protesters held a
candlelight vigil along North Buchanan Boulevard, singing "Amazing Grace" and
depositing their spent candles on the steps of the infamous house. The next morning, they
gathered at the house again, banging pots and declaring that they were sounding "a
wakeup call." The "pot-bangers," as the protesters came to be known, moved to the home
of the university's provost, Peter Lange, and remained there until he came outside to
address them. The Reverend Jesse Jackson became interested in the case.

-

-

On Monday, March 27th, one week after Investigator Himan had invited the team in for a
friendly chat, Durham's district attorney, Michael B. Nifong, publicly associated himself
with the case for the first time. Nifong was virtually unknown in Durham, despite having
spent twenty-seven years in the prosecutor's office, but among attorneys he had the
reputation of being a fair and capable prosecutor ("probably the best lawyer in that
office," the Durham defense attorney Tom Loflin says). Starting out as a volunteer
assistant, he worked his way up to assistant district attorney prosecuting homicide and
drug cases, and got his share of convictions. Acquaintances say that Nifong never coveted
the top job; he wasn't political, and lacked the appetite and the instinct for public
campaigning. Because of his long service, he earned around a hundred thousand dollars a
year, nearly as much as some of the district attorneys he worked for.
In 1999, Nifong learned that he had prostate cancer, and underwent treatment. When he
was able to return to work, his boss, District Attorney Jim Hardin, Jr., assigned him to
traffic court-a sort of early semi-retirement.
Last year, when Hardin was appointed to a judgeship, Governor Mike Easley appointed
Nifong to finish his term. Nifong, who was just a few years short of reaching his thirtyyear mark, subsequently announced that he would run for a full term in the spring. As a
Democrat, he needed only to win the Party's nomination in a May primary to be virtually
assured of election. Polls taken by Nifong's opponent, a former assistant D.A. named
Freda Black, showed Nifong, whose name recognition was marginal, running
considerably behind her. Black was well known, because in 2003, while Nifong was
negotiating traffic cases, she had been Hardin's chief courtroom assistant on a notorious
socialite-murder case that had been carried live on Court TV. In his first week on the job
as Hardin's replacement, Nifong had fired her. She says he gave no explanation. (He has
since hinted that it had something to do with conflict of interest.)

'----

On March 27th, after the weekend of protests, Nifong declared that he was personally
taking over the lacrosse case, and he began an extraordinary blitz of public appearances,

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being interviewed upward of fifty times. He repeated the charges of a conspiracy of
silence among the players, and suggested that those who failed to come forward might
face charges of aiding and abetting the crime. He repeatedly declared his belief that a
crime had occurred, and said, "My guess is that some of this stone wall of silence that we
have seen may tend to crumble once charges begin to come out."
He publicly emphasized the racial implications of the incident, telling the Times, "The
reason I decided to take it over myself was the combination gang-like rape activity
accompanied by the racial slurs and general racial hostility .... There are three people
who went into the bathroom with the young lady, and whether the other people there
knew what was going on at the time, they do now and have not come forward. I'm
disappointed that no one has been enough of a man to come forward."
Nifong also demonstrated on television how he imagined the alleged victim was grabbed
and held by her attackers. He suggested that the woman might have been given a daterape drug, and even held the students' decision to hire attorneys against them. "One would
wonder why one needs an attorney if one was not charged and had not done anything
wrong," he said. He referred to the athletes as "a bunch of hooligans," and played upon
presumed resentment ofDurhamites toward the school, which some still called the
Plantation. "There's been a feeling in the past that Duke students are treated differently by
the court system," Nifong said. "There was a feeling that Duke students' daddies could
buy them expensive lawyers and that they knew the right people."

Stinging though Nifong's comments were, he was saying nothing that was not also being
heard on the Duke campus. One group of students distributed a flyer around campus-in
the style of a "Wanted" poster-with pictures of the lacrosse players and the command
"Please come forward." Protesters chanted slogans outside the Allen Building, another
group of students demonstrated until Brodhead agreed to meet with them, and reporters
found no shortage of students willing to portray the alleged attack as symptomatic of
larger problems at Duke. "There's a culture of rape at Duke, so we're hoping this will get
them to speak up," a student told USA Today.
Much of the bitterest vitriol came from members ofthe Duke faculty. In overheated
faculty meetings, in furious e-mail exchanges, in protest rallies, and in comments to the
press, many at Duke seemed willing to assume not only the players' guilt but the
university's. At a session of the Academic Council, the faculty governance body,
Brodhead was roundly assailed for not taking decisive action against the team, and one
professor stood and urged him to confess publicly that Duke was a racist and misogynist
institution. Houston A. Baker, an English professor who has since left Duke for
Vanderbilt, asserted in a letter (which he subsequently made public) to Peter Lange, the
provost, that at Duke white male athletes were "veritably given license to rape, maraud,
deploy hate speech," and excoriated the university for its complicity in the "sexual assault,
verbal racial violence, and drunken white male privilege loosed amongst us."
Inside the Allen Building, Brodhead and his administration felt besieged, and a bit
bewildered. "The nature of the information kept changing, and was extraordinarily
confusing," he recalls. "You don't have a playbook in the drawer. And what made it hard
was not only the scale of emergency-it was the combination of the extraordinarily
inflammatory versions of the story with very high degrees of uncertainty." The press

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demanded regular briefings, and on more than one occasion Brodhead found himself
confronted with an unexpected development even as he was speaking to reporters. It was
at a press conference that Brodhead learned about the 911 call complaining of racial slurs
against a woman passing by the Buchanan house. On April 5th, as Brodhead was
preparing to announce a fairly measured response to the uproar, he learned about an email sent by a player named Ryan McFadyen in the hours just after the party.
To whom it may concern
tommrow night, after tonights show, ive decided to have some strippers over to edens 2c. all are
welcome .. however there will be no nUdity. i plan on killing the bitches as soon as the walk in and
proceeding to cut their skin off while cumming in my duke issue spandex .. all in besides arch and tack
please respond

Brodhead, who had been trying to maintain a balance between avoiding prejudgment and
satisfying the mounting pressure for action, was outraged. He said he found the message
"sickening and repulsive," and he acted immediately. He suspended McFadyen. Coach
Pressler was informed that he had until the end of the day to leave the campus, where he
had coached for sixteen years. Brodhead also announced a series of committees that
would investigate the team, the administration's handling of the matter, and the Duke
culture itself. In a letter to the Duke community, he wrote that the lacrosse episode "has
brought to glaring visibility underlying issues that have been of concern on this campus
and in this town for some time." The letter went on:
They include concerns of women about sexual coercion and assault. They include concerns about the
culture of certain student groups that regularly abuse alcohol and the attitudes these groups promote.
They include concerns about the survival of the legacy of racism, the most hateful feature American
history has produced.
Compounding and intensifying these issues of race and gender, they include concerns about the deep
structures of inequality in our society-inequalities of wealth, privilege, and opportunity (including
educational opportunity), and the attitudes of superiority those inequalities breed. And they include
concerns that, whether they intend to or not, universities like Duke participate in this inequality and
supply a home for a culture of privilege.

T here was, in the media onslaught, a hint of Schadenfreude-some outsiders find Duke
an easy place to hate. It had been, as Bob Steel said, a school very much in a hurry. Duke
had achieved the No.5 position in a ranking of American universities; the others in the
top five-Harvard, Princeton, Yale, and Penn-had been more than a century old when
Duke was still a tiny religious school on the Carolina frontier. Now that Duke had arrived,
there was impassioned disagreement over what should come next.

-

The path on the way up had been easier to discern. When, in 1859, the Methodists offered
financing to Normal College, a small school in rural Randolph County, the school jumped
at it, and became Trinity College. Thirty years later, the Yale-trained Northerner Jolm
Crowell became president, and planned a major university on the German model. He
solicited the patronage of the tobacco baron Washington Duke and moved Trinity to
Duke's home town of Durham (adopting Yale blue as the school color). When Duke's
son, James B. Duke, offered to build a majestic new campus for Trinity and endow a
university, the school renamed itself yet again. To design the new buildings, Duke
commissioned the Philadelphia architect Horace Trumbauer, who had put mansion roofs
over the heads of the ruling class during the Gilded Age. For the new campus in Durham,
Trumbauer fancied a Gothic Revival evocation of Oxford and Cambridge, and the
spectacular sandstone result was hardly intended to mute any inference of privilege.

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When the new campus opened, in the fall of 1930, the university set out to buy itself a
championship-level football program and hired the University of Alabama's William
Wallace Wade as athletic director and football coach. Wade quickly made Duke a national
football power, winning the Southern Conference title within three years and taking his
undefeated Blue Devils to the Rose Bowl for a contest with Southern Cal.
In 1969, Duke's academic ambitions found perfect expression in the person of Terry
Sanford, the state's famously progressive former governor, who served as Duke's
president for sixteen years. At a time when Jesse Helms was stirring up white resentment
toward integration on the Tobacco Radio Network, Sanford wanted to set a national
example of a transcendent South. The term he coined for his vision of Duke was
"outrageous ambition." Sanford closed Duke's education and undergraduate nursing
schools (its principal ties to the state and the region), and opened new departments likely
to bring national recognition--ofbusiness administration and of public policy. He
encouraged department heads to scout the upper-tier universities for young teaching
talent, and his friends in the national media began to notice his institution. When Sanford
left to mount a successful campaign for the Senate, Duke had the reputation of a national
university.

-

It was a Duke provost, Phillip Griffiths, who devised the strategy that cemented that
reputation. Griffiths, a mathematician, recognized that the most efficient way to buy
academic cachet for Duke was through the recruitment of high-profile stars in the
humanities. (Such stars, however high their salaries, were much cheaper than even entrylevel postdoctoral hires in the hard sciences, because there were no lab-setup costs.) One
of the first big hires, in 1986, was Stanley Fish. He brought an outsized ego, a Jaguar, and
postmodernism to Duke, and, as chairman of the English Department, he moved the
academy to the front lines of the gathering culture wars. With its debates over campus
codes forbidding "hate" speech, and the hiring of such faculty luminaries as Eve Kosofsky
Sedgwick, who brought queer theory to Durham, Duke became famous as the home
campus of tenured zaniness (and the inspiration for Dinesh D'Souza's "Illiberal
Education") at a time when the controversy over P.e. orthodoxy was all the rage. By the
end of the nineteen-eighties, graduate applications to the English Department had tripled.
Fish moved on (he is now at Florida International University), but John F. Burness,
Duke's senior vice-president for public affairs, says, "Duke was put on the map as a result
ofthe English Department being a place of intellectual ferment. And we hear it today. Our
ability to recruit faculty, in disciplines that have nothing to do with the humanities, came
out of this sense of momentum."

The two strands of Duke's character create an interesting tension-Sparta and Athens, in
one package. Brodhead has become a basketball fan, and he makes a point of meeting the
students who sit near his mid-court seats at Cameron. One of them last year was a student
from China, who was dressed up in Blue Devils fan gear. "A physicist, a violinist,"
Brodhead says. "This person came to this country, where he knew nobody, and where he
knew nothing about the ways ofthis country, and, actually, sports on this campus form a
community that enables people to come together from all different points of view."

---

Orin Starn, the sports-anthropology professor, is less sanguine. Duke, he says, has become
"this place that's sort of divided against itself. On the one hand, you have this university

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that wants to be this first-class liberal-arts university, with a cutting-edge university press,
these great programs in literature and history and African-American studies, that's really
done some amazing things over the last twenty years, building itself from a kind of
regional school mostly for the Southern elite into a really global university with first-class
scholarship. But then you have another university. That's a university of partying and
getting drunk, hiring strippers, frats, big-time college athletics."
At the end of the spring semester in 2004, Peter Wood, who teaches Native American
history at Duke, was reading through his teacher evaluations when he came across one
that startled him. "One kid wrote, 'I wish all the Indians had died; then we wouldn't have
to study them.' "
"I had sixty-five students," Wood says. "Ten lacrosse players. Most ofthe students loved
it. It was a good class."
Wood guessed that his anonymous student critic was one of the lacrosse players, and
wrote a letter to an undergraduate dean expressing his concern about the bad attitude of
some athletes and about "the increasing centrality of sport" at Duke.
That gesture gave Wood a proprietary position in the jocks-gone-wild discourse that
attended the lacrosse scandal. He was invited to a meeting with Brodhead and drafted onto
campus culture committees, and was one of the more forceful voices at the feverish
Academic Council meeting in late March. Wood had been one of the brilliant young hires
of the Terry Sanford era, a Harvard scholar who was a pioneer in the new field of black
American history. He had particular credibility on the subject of sports on campus,
because of his pedigree (his father was a famous collegiate football player), and because
he had been the captain of the Harvard lacrosse team and coached women's lacrosse at
Duke when it was a club sport. "My dad was an All-American football player, but he was
also a straight-A student," Wood says. "I grew up in a world where these things were
supposed to fit together nicely, and they no longer do."
In 2005, Duke achieved a top-five ranking among Division I schools for athletic success,
fielding twenty-six varsity teams in sports ranging from football to fencing. Such a
commitment to sports carries a significant price tag: Duke's annual athletic budget is
nearing fifty million dollars. Wood' s ally in this debate, Starn, says, "If you were starting
from scratch at Duke, no one would have imagined an athletics program where the budget
is almost fifty million dollars. This huge outlay of expenses and energy and visibility of
sports is just clearly out of proportion with what it should be. Yes, athletics has a place in
college education, but not this sort of massive space that it's taking."

But what allowed Wood to so easily tag his anonymous evaluator as a lacrosse player was
his conviction that the play-hard cohort was poisoning the campus culture at Duke, and
that lacrosse players were at the heart of the problem.
Even before the lacrosse scandal, alarms had been sounded over the coarsening of
undergraduate life. Toward the end of Nan Keohane's tenure as president, the school
undertook an extensive study examining the lives of women at Duke. The project's
summation reads like a scholarly anticipation of Tom Wolfe's "I Am Charlotte
Simmons," the 2004 novel (published after Wolfe's daughter graduated from Duke)
portraying college life as a soul-deadening, booze-fuelled marathon of sexual predation:
Students rarely go on formal dates but instead attend parties in large groups, followed by "hook-ups"-

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unplanned sexual encounters typically fueled by alcohol. Men and women agreed the double standard
persists: men gain status through sexual activity while women lose status. Fraternities control the
mainstream social scene to such an extent that women feel like they play by the men's rules. Social
life is further complicated by a number of embedded hierarchies, from the widely understood ranking
of Greek organizations to the opposite trajectories women and men take over four years, with women
losing status in the campus environment while men gain status.

When the lacrosse story broke, last spring, Elizabeth Chin's anthropology class was
studying Margaret Mead's "Coming of Age in Samoa," occasioning lively inquiry into the
mores governing Duke's undergraduate life. For Chin, a visiting professor from
Occidental College, the sessions were surprising, and instructive. Several of the young
women in her class were members of Duke's elite sororities-the Core Four, as they are
called. "The sorority women in particular were trying to convince me that the sexually
free and exploratory world that Mead describes is pretty much the same thing as the
hookup culture," Chin recalls. She wasn't buying it. "The whole hookup thing is, you get
really drunk so that, at some level, you can't be responsible," she says. "And then you
hook up and then there's no obligation. It's bad manners, in fact, to sort of get
emotionally connected to the person. But I don't think any of them like it that much ....
It's dehumanizing. And it's very alienating. It's sort oflike they have to deaden
themselves before they can go do it."
Peter Wood discerns in the Duke undergrad culture a widening milieu of studied
vulgarity. "Do you know about the baby-oil bust?" he asked me. He was referring to an
off-campus fraternity party last winter which featured bikini-clad coeds wrestling in a
plastic wading pool filled with baby oil; the party, attended by two hundred people,
dispersed when neighbors summoned the police. After the lacrosse incident in the
Buchanan house, many of the adults at Duke were surprised to learn that the hiring of
strippers was a familiar practice. Some of the strippers that come onto the Duke campus
are men, Bob Steel told me, by way of offering context. "So it's not just men getting
women."
Wood contends that a relatively small group of social elites exert a growing influence
over the broader undergraduate population. "It's an infection that spreads out," he says.
The upper rungs of the "embedded hierarchies" cited by Keohane's study are vigorously
contended over by the elite fraternities and sororities, but the alpha partyers at Duke are
the members of the men's lacrosse team. The team is a fraternity unto itself, and is
accorded the top prize of social striving: the deference of its peers. Coeds who are favored
with the company of players are known as "lacrosstitutes," a term that Wood was
surprised to learn is not necessarily pejorative. A sharp-eyed campus social critic, the
widely read anonymous blogger known as DukeObsrvr, summed up the men's lacrosse
team's place in the social hierarchy this way: "Let's not kid ourselves, what frat doesn't
hate these fuckers? The lacrostitute is a notch higher on the social scale than the 'frat slut.'
And dammit that's something worth fighting over."

---

Peter Wood and Orin Starn were among those who believed that the lacrosse scandal
represented a rare opportunity for Duke. Starn hoped that Duke would eventually pull out
of Division I competition. In a conversation in late May, he told me that the first
important indication of Duke's direction would be a decision on whether or not to
reinstate the lacrosse program. "I think it would be a huge mistake to go back to business
as usual," he said. "Now, what happened, or didn't happen, I'm not sure we'll ever know.

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But at the very minimum we know that we have these guys hiring strippers, a record of
underage drinking, and pretty strong evidence of the use of racial slurs."
Less than a week later, Brodhead convened a press conference, and announced that he
was reinstating the lacrosse program. "I am, I know, taking a risk," Brodhead said, in
lifting the suspension of the team. He said that the reinstatement was probationary, that
the players had agreed to live by a new set of rules, and their behavior would be closely
monitored.
It had been exactly two months since Brodhead cancelled the season, on a day, April 5th,
that he now characterized as "a day of great hysteria." Much had happened since then.
The committee examining the lacrosse culture found no evidence that team members were
racist or sexist. The players were regarded by their professors, ten of whom were
surveyed, to be "academically responsible students." (The lone dissenter was Peter
Wood.) The committee's principal findings might have been crafted by the lacrosse
booster club. "By all accounts, the lacrosse players are a cohesive, hard working,
disciplined, and respectful athletic team," the report said. "Their behavior on trips is
described as exemplary. Players clean the team bus before disembarking. Airline
personnel have complimented them for their behavior. They observe curfews. They obey
the team's no alcohol rule before games. They are respectful of people who serve the
team, including bus drivers, airline personnel, trainers, the equipment manager, the team
manager, and the groundskeeper. Finally, the lacrosse program has a 100% graduation
rate." As for the team's inclination toward alcohol abuse, the report noted that, in this, the
lacrosse players differed little from other Duke students.

The report also showed that Coach Pressler disciplined the team whenever he was
informed of misbehavior, and had suspended two players during the 2005 N.C.A.A.
tournament for having violated team discipline. The university had plainly acted
precipitately in firing Pressler, and Brodhead took pains to speak favorably of him
whenever his name came up. (Pressler has taken a coaching job at Bryant University, in
Rhode Island, a Division II school.)
Brodhead had also reconsidered the case of Ryan McFadyen, whose e-mail about skinning
strippers Brodhead had come to see "in context." When I asked Brodhead about the e-mail
this summer, he said that he would still describe it as sickening and repulsive, even
though he now recognizes it as a morbid joke derived from "American Psycho." "The
trouble is," he said, "this is a story in which everything and its opposite are true, in some
measure." McFadyen was re-admitted, and will play lacrosse for Duke next season.
When Brodhead cancelled the season, he had said that the moment was too serious to be
playing games. What he meant, in part, was that Duke could not be seen to be playing
games. From the start, Brodhead had been forced to navigate among several potentially
hazardous interests-lacrosse parents who felt angry and abandoned by the school,
dismayed alumni and donors, the agitated citizens of Durham, the clamoring press-while
protecting what is known in the Allen Building as "the Duke brand." On that fitful
weekend in late March when the TV satellite trucks hit campus, the lacrosse team could
be seen practicing for the Georgetown game, a scene that became an endless video loop
suggesting institutional indifference. "We had to stop those pictures," Bob Steel says. "It
doesn't mean that it's fair, but we had to stop it. It doesn't necessarily mean I think it was
right-it just had to be done."

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The incident happened at the moment when high-school seniors were making their final
decisions about which school they would attend this fall. Duke clearly took a hit, having
to dip lower on its waiting list when about a hundred students who had been expected to
come to Duke chose to enroll elsewhere. The university hired outside public-relations
consultants, developed strategies to protect the brand, and commissioned polls measuring
the damage caused by the scandal (surprisingly little, as it turned out).

T

he most liberating development for Brodhead and Duke was the dramatic tum in the
public's impression of the criminal case. Mike Nifong, its vocal prosecutor, won the
Democratic primary race on May 2nd. Nifong had denied any political motivation in the
lacrosse prosecution ("I didn't pick the crime, I didn't pick the time," he told one
campaign audience), but the case plainly helped him. After the election, a precinct-byprecinct study by the Vanderbilt professor Christian Grose showed that black voters
helped secure Nifong's victory.
Nifong had indicted two students-Reade Seligmann and Collin Finnerty-on the basis of
photo identification, and two weeks after the election, on May 15th, he secured the
indictment of a third, David Evans, who, the day before, had received a bachelor's degree
in economics from Duke. Before turning himself in and posting bond, Evans stood with
his parents (his mother is Rae Evans, a Washington lobbyist and chairwoman of the board
ofthe L.P.G.A.), his lawyers, and some of his teammates in front ofthe county jail and
addressed the media throng. In his starched button-down oxford shirt and dark slacks,
Evans looked like the preppie college boy he had recently been, but his tone, of controlled
and righteous anger, suggested someone more substantive. Evans said that he and his
roommates at the Buchanan house had helped the police in their search, that he had
volunteered to take a polygraph test and to talk to Nifong personally, but that he had been
rebuffed. "I am innocent," he proclaimed. "Reade Seligmann is innocent. Collin Finnerty
is innocent. Every member of the Duke University lacrosse team is innocent. You have all
been told some fantastic lies." It was a remarkable performance, and it shifted the tenor of
the public narrative once again.
By then, Nifong had decided to go silent on the case, leaving the stage to the defense. The
biggest blow to Nifong's public case was the DNA report from the state crime laboratory
in Raleigh, which found that the samples collected from the accuser did not match any of
the players'. Defense lawyers immediately began to attack Nifong's evidence, his
procedures, and his impartiality.
Kirk Osborn, the attorney for Reade Seligmann, let it be known that he had visited Nifong
early on to show him some exculpatory evidence, and that Nifong refused to see him.
Shortly thereafter, some of that evidence became public. One or more of the players had
photographed the party with a digital camera, which provided time-stamped photographs
that helped to establish a time line of events. Through these pictures, and phone records, a
taxi-driver's statement, security pictures at an A.T.M., and computerized entry
documentation, Osborn was able to demonstrate convincingly that Seligmann was on the
phone or in a cab during much of the time when the attack allegedly took place.
Osborn and the other attorneys began filing a series of motions, effectively opening whole
portions of Nifong's case to public view. The evidence revealed that when the investigator

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Ben Himan first contacted the second stripper, Kim Roberts-she had made the first 911
call and was the driver of the Honda at Kroger-about the alleged rape, she called it "a
crock" and said that it couldn't have happened. According to the defense attorneys,
medical records showed that the hospital personnel who treated the accuser observed no
sign of anal assault, only vaginal swelling. A statement given to police by a man who had
driven the woman to various appointments in the days before the party indicated that she
had seen at least three different clients in private performances at hotels that weekend.
The defense could attempt to attribute the swelling to the performance with a vibrator that
the woman had mentioned to Himan. Accounts from police and medical personnel now
showed that the accuser had offered as many as ten differing accounts of what happened
that night.
In the early phase of the story, the media had profiled the accuser as a working mother
and full-time college student. Now her image was steadily being tarnished. She had told a
nurse on the night of the assault that she was taking the muscle relaxant Flexeril. The
accuser's family, in what was apparently meant to be a sympathetic series of reports in the
magazine Essence, divulged that she had suffered a nervous breakdown last year,
prompting a weeklong stay in a Raleigh hospital. Other press accounts revealed that a
decade ago she'd made an earlier rape allegation that wasn't pursued (her father now said
that it was falsely made); that she'd accused her former husband of trying to kill her; and
that after a tryout at a strip club she had stolen a cab and led police on a drunken chase.
It was also learned that the photo identification of the three players Nifong indicted was
~

the result of a procedure so problematic that it may prove not to have been worth the
effort. After the failure of the first two tries at getting an identification, Nifong instructed
police to compile a photographic lineup consisting only of lacrosse players, and to ask the
accuser if she recognized her attackers. That process (which Osborn described as "a
multiple-choice test with no wrong answers") seems to have been a violation of the
Durham ,Police Department's own rules.
The accuser, meanwhile, has vanished; it is possible that she is in the protective custody
of the police. Her father, who had speculated that she might not be up to testifying in a
criminal case, said this month that he had not seen her since June.

Brodhead reflected on all that had happened as we chatted in his office in July, and said
that it brought to mind Shakespeare's "Othello"-not for its obvious associations with
interracial passions and violence but for its lesson on prejudgment. The scene at the
beginning of the play, he said, was partiCUlarly instructive. Desdemona's father hears
about his daughter's relationship with the Moor, and he sighs, "Belief of it oppresses me
already."
"He doesn't say, 'Oh, now I see what you're getting at,' "Brodhead said. "He's saying,
'Now I realize that I always believed it'-'Belief of it oppresses me already.' It's
probably, to my mind, the greatest literary image ofthe action of prejudice-how a story
is told to engage something in the mind that brings with it absolute certainty that derives
from the nature ofthe stereotypes."
He had located a clarifying point of reference in the lacrosse ordeal, and he became
animated. It had been a headlong narrative, driven partly by a willingness to affirm

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favored certitudes about justice.
" 'Belief of it oppresses me already,' you know?" he continued. "And the thing is, we
actually can't blame people for being subject to this, because it is so deeply human. And
if, from day to day, we've seen people in the throes of this, we recognize that as a
dimension of our humanity. At the same time, it really is our obligation to resist it,
because, you know-truth and justice, they are cant phrases unless we try to take the
trouble to make them have a reality to them. And what do truth and justice mean? Truth
and justice mean something opposite from our preconceptions." ...

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