WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  January 12, 2007

Topic category:  Other/General

Duke Case: Davidson and Brodhead, No; Johnson, Yes

Duke English Professor Cathy Davidson is striving mightily to spin that "Social Disaster" ad that is now a disaster for its signers (including herself), the notorious Group of 88 . She didn't draft it, but she did approve it and now it's a millstone around her neck.  She now may be feeling terror, but will she admit error? Never! 

With the collapse of the Duke case, the 88 have been reduced to a bunch of whiners, deluded or despicable.  Neither well-intentioned nor well written, that ad (1) was designed to advance personal, pedagogical and political agendas of the signers and (2) may be a basis for future litigation Professor Davidson desperately wants to avoid. 

Unsurprisingly, Professor Davidson resorting to rewriting history and charged Duke Three supporters with doing the spinning about the ad:

"I thought you might be interested in some research I did last night. It was bothering me that the reaction to the ad was so belated and so uniform, and I decided to go back and actually see what the 'climate' was at the time of the ad. It wasn't until June that the negative responses started coming in, almost all using the same phrases. The ad appeared April 6. It doesn't make sense that there would be such a delay unless orchestrated. Also, if, as the negative responders say, the impact of that ad was so dire, if it said what some are accusing it of saying (that the lacrosse players were guilty), why didn't the response come at the time? The hate mail began around June and then it really began to avalanche this fall. And it seems orchestrated since 90% of the emails I receive use exactly the same phrases and 'facts.'

"I did some internet research last night. It is clear that there is simply no way that the current view of the ad and what it says holds water. I've made this summary that I am now sending around in response to emails I'm getting. What is clear is (a) it did not have any recorded impact on the case or on Dick's decisions (which were made before the ad appeared); and (b) all the first readings of the ad are as the signers intended---a commentary on social climate and the particular distress of the students, mostly African American, who were at the dignified, productive, if sometimes angry protest meetings noted in the ad.

"That spin of the 'we are listening' ad has been so successful that it is impossible to read the ad that was written. Now one reads in light of all the subsequent commentary. I hope an investigative reporter will pursue this story, but this is a very quick attempt at sorting out some of the history."

Very quick.  Very slick.  

But it won't do the trick. 

On that research, give Professor Davidson an F.

Brooklyn College Professor Robert K.C. Johnson's April 23, 2006 article, titled "The Group of 88," was posted 6 days after the initial indictments in the Duke case.  It is neither hateful nor belated.

Professor Johnson began:

"88 members of the Duke faculty—including 11 members of its History Department, among them such luminaries as William Chafe and Claudia Koonz—and 15 academic departments or programs recently signed a public statement saying they were 'listening' regarding allegations against the Duke lacrosse team. The statement spoke of 'what happened to this young woman' (which at that point consisted of nothing more than uncorroborated allegations) and gave a message to campus protesters: 'Thank you for not waiting' until the police completed their investigation. Activities of these campus protesters, as we now all know, included such items as the 'wanted' poster and branding the team 'rapists.'"

Professor Johnson concluded:

"How many of the Duke 88 would affix their signatures to a public affirmation that they are 'listening' to the exculpatory evidence of a student at their own institution, and expressing concern that local authorities could be veering toward a miscarriage of justice regarding Seligmann? Or do they 'listen' only to versions of events that conform to their preconceived worldview, like the student at North Carolina Central, seeking 'justice for things that happened in the past'?"

Therefore, Professor Johnson is rightfully revolted with what he promptly described as Professor Davidson's "impassioned apologia."

Professor Johnson:

"One day short of nine months since the appearance of the Group of 88’s statement, Davidson is defiant, confident that she and her fellow signatories did nothing wrong. Though she doesn’t come out and say so, both the tone and the content of her op-ed suggest that she shares the view of Karla Holloway, who told the Duke Chronicle that she would sign the statement again 'in a heart beat.'"

Professor Johnson is right: Professor Davidson "is simply reinventing the past."

Professor Johnson:

"In late March, when the idea for the Group of 88’s statement originated, who—either on Duke’s campus or in the media—was elevating the lacrosse players 'to the status of martyrs, innocent victims of reverse racism'? Certainly not the protesters to whom Davidson and the other Group members said 'thank you' in their statement. The protesters whose work earned the gratitude of Davidson and her colleagues, it’s worth remembering, held signs saying things such as 'Castrate,' 'Sunday morning, time to confess,' and 'Real men don’t defend rapists.' Between March 29 and April 6 and the issuance of the Group’s statement on April 6, were members of the media or cable news network talking heads elevating the lacrosse players 'to the status of martyrs, innocent victims of reverse racism'? Who, exactly, does she think she’s fooling?"

For the sake of those fooled, but not uneducable, Professor Johnson continued:

"The statement, claims Davidson, had nothing to do with the guilt or innocence of the lacrosse players. That it appeared at just the time Nifong’s inquiry was peaking, and after one aspect of his procedural misconduct was apparent (his improper statements) is just a coincidence. What words were in the ad?  'To the students speaking individually and to the protestors making collective noise, thank you for not waiting and for making yourselves heard.' But the ad had nothing to do with the players’ guilt or innocence. That ESPN reported that its author, Lubiano, understood that some would view the statement as driving a 'collective stake' through the 'heart' of the lacrosse team is just a coincidence.

"(The link above, by the way, is to a reproduction of the ad, which suddenly vanished from Duke servers shortly after a Chronicle article appeared last fall, highlighting the increasing criticism of the Group of 88.)"

Unrepentant Professor Davidson apparently has not learned, but...the tide HAS turned.

Professor Johnson, in his latest ("Conflicting Pressures"), point out the obvious these days: "Duke...finds itself in an awkward position."

President Richard Brodhead may be identifying with President Nixon's faithful secretary, Rosemary Woods, explaining how she might have accidentally erased eighteen minutes of what had been recorded on one of President Nixon's audio tapes.

Professor Johnson: "The major legal threat it seemed to face last spring, when the key decisions (and non-decisions) in this affair were made, came from the accuser. Now, it faces a looming legal threat from some of its students. Counsel undoubtedly has told Brodhead that any admission of improper conduct by faculty in last spring’s classes will strengthen the next case against Duke, and that he should stress the administration’s efforts to uphold the presumption of innocence, even though this seems to have been, at most, a secondary concern in March, April, May, and June."


Last April, President Brodhead abandoned Reade Seligmann and Collin Finnerty.  They were suspended and ordered to stay off the Duke campus

Realizing the Duke case would collapse completely (Duke lawyers MUST realize it), Professor Brodhead invited Reade and Collin to come back to Duke, without apology and with the arrogant assertion that "[a]t this point, continued extension of the administrative leave would do unwarranted harm to your educational progress."

The prior harm was NOT warranted!

Professor Johnson: "[L]egal advice and faculty pressure suggest that Brodhead will continue with his January 7 line of wholeheartedly defending the Group of 88."

That will guarantee that there will but a lawsuit or lawsuits against Duke and the 88! 

Professor Johnson's caveat: "Even if the threat of lawsuits didn’t exist, though, I suspect Brodhead would have denounced the critics of the Group of 88. Professors, as a whole, resent outside criticism. Duke, in particular, has aggressively recruited professors in the last 15 years with a promise of a comfortable intellectual atmosphere on campus. Unfortunately, Brodhead seems unwilling or unable to give even a mild statement of rebuke, perhaps delivered in the passive voice, regarding inappropriate faculty behavior."

That would guarantee that Duke University's recovery would be delayed until a fair-minded new president takes over.and creates an atmosphere conducive to increased applications and donations.


On the fence?
Another 88 statement is in the works.
I hope you can stand the suspense.
I long for the days of faculty quirks
Instead of faculty jerks.

Michael J. Gaynor

Biography - Michael J. Gaynor

Michael J. Gaynor has been practicing law in New York since 1973. A former partner at Fulton, Duncombe & Rowe and Gaynor & Bass, he is a solo practitioner admitted to practice in New York state and federal courts and an Association of the Bar of the City of New York member.

Gaynor graduated magna cum laude, with Honors in Social Science, from Hofstra University's New College, and received his J.D. degree from St. John's Law School, where he won the American Jurisprudence Award in Evidence and served as an editor of the Law Review and the St. Thomas More Institute for Legal Research. He wrote on the Pentagon Papers case for the Review and obscenity law for The Catholic Lawyer and edited the Law Review's commentary on significant developments in New York law.

The day after graduating, Gaynor joined the Fulton firm, where he focused on litigation and corporate law. In 1997 Gaynor and Emily Bass formed Gaynor & Bass and then conducted a general legal practice, emphasizing litigation, and represented corporations, individuals and a New York City labor union. Notably, Gaynor & Bass prevailed in the Second Circuit in a seminal copyright infringement case, Tasini v. New York Times, against newspaper and magazine publishers and Lexis-Nexis. The U.S. Supreme Court affirmed, 7 to 2, holding that the copyrights of freelance writers had been infringed when their work was put online without permission or compensation.

Gaynor currently contributes regularly to www.MichNews.com, www.RenewAmerica.com, www.WebCommentary.com, www.PostChronicle.com and www.therealitycheck.org and has contributed to many other websites. He has written extensively on political and religious issues, notably the Terry Schiavo case, the Duke "no rape" case, ACORN and canon law, and appeared as a guest on television and radio. He was acknowledged in Until Proven Innocent, by Stuart Taylor and KC Johnson, and Culture of Corruption, by Michelle Malkin. He appeared on "Your World With Cavuto" to promote an eBay boycott that he initiated and "The World Over With Raymond Arroyo" (EWTN) to discuss the legal implications of the Schiavo case. On October 22, 2008, Gaynor was the first to report that The New York Times had killed an Obama/ACORN expose on which a Times reporter had been working with ACORN whistleblower Anita MonCrief.

Gaynor's email address is gaynormike@aol.com.

Copyright © 2007 by Michael J. Gaynor
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