Duke took quite a bit of flak during the past year because it failed to stand up for its students' due-process rights.
It seems someone was asleep at the wheel, as the University (through the Office of Judicial Affairs) may now be actively undermining those rights through its own policies and practices.
In the fall of 2005, "Judicial Affairs began systematically initiating formal disciplinary action for all allegations of undergraduate misconduct occurring off-campus," Director of Judicial Affairs Stephen Bryan wrote in a 2006 memorandum. Previously the University only pursued off-campus violations that constituted a "direct or indirect threat to the University community."
This practice was made possible by a Durham Police Department policy requiring officers to forward citations issued to students to Judicial Affairs and a similar Alcohol Law Enforcement agency policy.
"Duke asks us that we keep them informed. We make a copy of the booking sheet and forward it to the [district] captain," said DPD Sgt. Dale Gunter, a supervisor in the police district surrounding East Campus.
In itself, this practice is little more than a transparent, petty attempt to pacify members of the Durham community at students' expense. In conjunction with other policy changes enacted between 2000 and 2006, however, it creates a dangerous set of incentives for law-enforcement agents that undermine crucial, constitutionally imposed limits on their behavior.
When dealing with any suspect, an officer must (1) respect his/her right against unauthorized search and seizure (Fourth Amendment), (2), collect evidence sufficient to prove his/her guilt beyond a reasonable doubt (common law rooted in the 14th Amendment) and (3) personally bear witness against him/her (Sixth Amendment). No violations of these or myriad other constitutional protections can be used against a defendant.
The government is not allowed to break the law in the course of enforcing it, and the Constitution was carefully crafted to ensure that government officials have no incentive to do so. This is America.
Except, apparently, in the case of Duke students. Officers know that any one of us can be punished even if they fail to afford us our most basic of constitutional rights. The judicial code has never required that students be proven guilty beyond a reasonable doubt, and the other two of the aforementioned protections were expunged from the code.
Consistent with the fourth amendment, the 1999-2000 Judicial Code explicitly excluded "evidence obtained through unlawful search and seizure."
The University's current position with regard to such evidence: "We will not ignore information because some other agency obtained it illegally. Our interest as an educational institution is education," said Vice President for Student Affairs Larry Moneta. To that end, the University has pursued judicial action against students on the basis of illegally obtained evidence on numerous occasions-most notably against 75 students cited by Alcohol Law Enforcement agents in 2005 following an illegal search of a home in Trinity Park.
And in the 2006-2007 judicial code, written the year after the lacrosse incident, a student's right to "confront any witness presenting information against him or her" was downgraded to a right to "rebut" witness testimony. This allows the University to, among other things, take action against a student on the basis of a police report without requiring the officer to personally corroborate the facts of the case or be confronted by the accused.
"I've never been summoned [to a hearing] and we don't do that. I can't tell you about any officer that has," Gunter said.
At the very least, the University is not doing everything in its power to ensure that Duke students are afforded the same rights as every other Durham resident. At the worst, it is actively encouraging law-enforcement officers to violate students' rights by providing a means to punish students with neither due process nor accountability.
Where we lie on that continuum depends wholly on the integrity of Durham law-enforcement agents, whom University officials inexplicably, and blindly, trust.
"Overall we have expectations that officials-be them university, city or state-respect appropriate parameters in carrying out their duties," Bryan wrote in a March memorandum denying a Duke Student Government request to exclude illegally obtained evidence from University judicial proceedings.
Last week, Bryan completely discounted students' well-documented complaints of mistreatment by law enforcement officers, arguing (circularly) in The Herald-Sun, "Given that a lot of these students are under the influence of alcohol, there's a propensity to question whether they have an accurate perception of what happened."
"For the administration to take the position that students are not being mistreated, I think they have their head in the sand," said Bill Thomas, a local attorney who successfully suppressed the evidence obtained in the illegal ALE raid.
He added, "Given the events of the last year and a half, one would certainly think that Duke University would have a great appreciation for due process."
One would hope.
Next week: the coup de grace.
All documents on which this column is based are online at http://www.duke.edu/~egw4/
Elliott Wolf is a Trinity senior. His column runs every Thursday.
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