WEBCommentary Contributor

Author: Michael J. Gaynor
Date:  July 13, 2007

Topic category:  Other/General

Did Duke Pick on the "Right" Families?

What is needed is a real investigation of Duke's role.

It's easy (especially now) to blame the false accuser, Crystal Gail Mangum, and the rogue former prosecutor, Michael B. Nifong, for the terrible tragedy and legal travesty commonly known as the Duke case, but they are hardly the only culprits.

The real "Duke" scandal is the way Duke handled the problem created by a false gang rape claim, not members of the 2005-2006 Duke University Men's Lacrosse Team foolishly (but lawfully) having an off-campus party involving a couple of strippers during Spring Break 2006. (The Duke men's basketball team and the Duke women's lacrosse team had stripper parties too, unfortunately, but if Duke even privately punished any of its other sports team for having a stripper party, please let me know.)

Duke has reason for wanting to look forward: it wants to keep the horrific things that it did to the men's lacrosse team members as little appreciated as possible and its political correctness extremism as fully in control as possible.

After the Dowd family shocked Duke by filing that terrofoc punitive grading lawsuit, Duke resigned itself to giving Kyle Dowd a P instead of a D (thereby raising his grade point average and probably his class standing). The Dowd complaint is an embarrassment to Duke and a matter of public record that Duke cannot expunge. So Duke did what was possible: limit the potentially tremendous damage from the case by settling confidentially. The strategy is obvious: avoid discovery, much less trial, so that the only cost of wrongdoing is a confidential monetary one. Imagine what would have happened if perennial visiting professor Kim Curtis had been required to answer questions under oath about how she treated the two members of the men's lacrosse team who were her students during the Spring 2006 semester and what she said and did with respect to false charges against the members of the team. If Professor Curtis had been deposed and the transcript of her deposition had been made public, would Professor Curtis still be scheduled to teach at Duke next semester? Political correctness extremism dominates at Duke, but would it continue to do so if ITS scandals became known?

Duke next quietly settled with the Evans, Seligmann and Finnerty families without putting them to the trouble of filing a complaint in court. {Yes, Duke learned from its experience with the Dowds to preempt a public filing if possible.) Duke didn't admit liability, much less publicly apologize and take appropriate action to punish the guilty and avoid more political correctness extremism problems. But Duke did make the case go away by paying a confidential sum and obtained releases of legal claims not only against Duke as an institution, but also Duke employees, including President Richard Brodhead, Dean Sue Wasiolek and, of course, 88ers.

Duke hoped that would put the fiasco behind it, but the families of the indicted players did not (and could not) release the claims of the families of the unindicted players and those players have good reason to sue Duke. (The families of the unindicted players respected the wishes of the families of the indicted players, and even refrained from suing the 88ers over the infamous "Listening" ad because all the criminal charges had not yet been dismissed.)

To be sure, not all of the families of the unindicted players might opt to do that. Circumstances vary with each family, of course. Some team members are still at Duke and Duke cleverly obtained an extra year of eligibility for the players who did not graduate in 2006.

But what has Duke done for the players who graduated in 2006 and had their season canceled because Duke was supporting the false charge (while giving lip-service occasionally to the presumption of innocence)? These young men were abandoned by Duke and placed under greater suspicion and endangered as a result of the way Duke chose to deal with the bogus gang rape claim.

Coach Mike Pressler did not learn of the bogus gang rape claim from the police. He learned of it from Dean Sue Wasiolek and his players then learned it from him.

Blogger John Bruce last December:

"Multiple sources confirm that Coach Mike Pressler, apparently acting on orders from above, instructed the other players not to tell their parents about the police inquiry. Meanwhile, Dean Sue Wasiolek arranged for a local lawyer, Wes Covington, to act as a 'facilitator' in arranging for a group meeting with police.

"As a lay observer, it's nevertheless fairly plain to me that this fellow Wes Covington had a conflict of interest, should have known he had a conflict of interest, and should have refused to get involved. Covington was working for Duke, but Duke, telling the students not to tell their parents (thus keeping them from knowing they should have their own counsel), was fooling the students into thinking they were Covington's clients. While Dean Sue Wasiolek's name is mentioned here, it's hard for me to think a decision to hire an attorney for this purpose wasn't made without the participation of Duke's General Counsel who, all together now, should have known Covington had a conflict of interest, and should have refused to get involved in something like this.

"It may be that everyone involved has been too busy to file ethical complaints against Covington and Duke's General Counsel, but after all, there are 40-odd sets of parents involved here. . . (Just for fun, by the way, if the facts as outlined in the case summary are correct, we may be very close to having the elements of a conspiracy to deprive certain Duke University students of their civil rights, viz., their right to counsel in a criminal matter.)"

What is needed is a real investigation of Duke's role and a lawsuit seems to be the only way to get one.

On April 5, 2006, President Brodhead canceled the men's lacrosse season, forced the resignation of Coach Pressler and arranged for a friendly "investigation" of his administration's response.

Brooklyn College History Professor Robert K.C. Johnson questioned the suitability of President Brodhead's "investigators":

"Former Princeton president William Bowen was a well-known critic of intercollegiate athletics and co-author, with Derek Bok, of a high-profile defense of racial preferences in the college admissions process. Julius Chambers, former general counsel to the NAACP Legal Defense Fund and NCCU chancellor, was a similarly aggressive advocate of the 'diversity' agenda in higher education. Bowen and Chambers took it upon themselves to add a third member to their panel, Danielle Carr Ramdath, who their report identified as an 'African-American woman.' (The report did not disclose either the race or the gender of Bowen and Chambers.)"

Professor Johnson's summary of the predictable result:

"The resulting report unsurprisingly reflected its authors’ long-held beliefs. Though claiming that they were 'not arguing for filling positions of any kind by applying a race-gender quota system,' they demanded creation of new positions that women or minorities were all but certain to fill. They faulted Duke administrators for not determining Crystal Mangum’s race immediately—an argument that prompted then-Academic Council chair Paul Haagen to wonder, 'I’m not sure that somehow or other we should have responded differently if it had been a white woman.' And, in a stunning passage, they explained that Duke needed to balance its students’ due process protections against the fact that 'in the eyes of some faculty and others concerned with the intersecting issues of race, class, gender, and respect for people, the Athletic Department, and Duke more generally, just didn’t seem to "get it."' As a result, these professors (which included Peter Wood, Karla Holloway and Houston Baker, each of whom Bowen and Chambers interviewed) saw the lacrosse team as the 'manifestation of a white, elitist arrogant sub-culture that was both indulged and self-indulgent.'"

No wonder Duke wants to move on quietly!

America's top legal commentator, Stuart Taylor, right from the start, quickly pronounced the report "a parody of race-obsessed political correctness” and protested the "slim[ing]" of the men's lacrosse players.

Don't count on Duke to voluntarily do a real investigation, confess its sins and fairly compensate its victims.

The authors of the ridiculous report are in stonewall mode.

Professor Johnson:

"I twice e-mailed Bowen inviting his comment; I said I would print his reply unedited. He did not respond. I also e-mailed Carr Ramdath; she responded by saying that she would decline to answer my questions.

"She did, however, inform a lacrosse parent, 'We stand entirely by the report, which no one has questioned.' (Apparently Taylor, or Haagen, or blogs don’t count.) And Bowen, in a response to Carr Ramdath on which the lacrosse parent was cc’d, stated, 'My advice is just to ignore this—no response is the appropriate response.'"

No response will not work if even ONE public-spirited member of the wrongly maligned and cruelly betrayed members of the 2005-2006 Duke University Men's Lacrosse sue Duke and exercise their right to conduct discovery.

To be sure, the indicted players and their families suffered the most. But since no one had engaged in any of the felonious behavior falsely claimed by Ms. Mangum, all of them suffered so long as "the Crystal lottery" continued and those not indicted were under threat of being falsely prosecuted on phony aiding and abetting.

What did Duke do?

This much is clear: Duke used Coach Pressler to manipulate the players and tell them what to do (whatever the police wanted) and what not to do (talk to their parents or lawyers).

Would Duke have done that if the false accuser had been white, 46 of the 47 team members had been black and the white member had been given a pass by the false accuser?

I doubt it.

Were the white members of the team discriminated against and manipulated because they are white?

When a white Duke student claimed to have been raped months later at a predominantly, if not then exclusively, African-American Duke fraternity, did Dean Sue charge in and tell the Duke fraternity members what to do and what not to do? Do tell, Dean Sue.

Should the three co-captains have talked to their parents and lawyers of their choosing before talking to the police and giving written statements?

Of course.

Did Duke expect to "make the problem go away"?

Perhaps so, but, in my view, that would not excuse Duke telling the players not to talk to their parents or lawyers.

Astonishingly, at the same time that Duke was giving (bad) legal advice and arranging for Wes Covington to represent the players, Duke was voluntarily giving the police information that it should not have given and later it stood mute when Mr. Nifong pretended not to have the information and to be seeking it by subpoena!


"Just when we thought nothing could surprise us in Durham’s now closed production of the Theatre of the Absurd, the Nifong/Mangum Hoax again stretches the bounds of amazement.

"It appears that the Family Educational Rights and Privacy Act (FERPA) (20 U.S.C. § 1232g; 34 CFR Part 99) protected key card records of Duke University students which District Attorney Mike Nifong sought by subpoena on May 31, 2006 were actually provided to the Durham Police Department, and in turn to the ex-DA, on March 31, 2006. Although Nifong had access to the records for months, he pretended to seek them with his subpoena and then, incredibly, argued vigorously for their production in a July court hearing."

The United States Supreme Court has ruled that a student may not sue a private university for damages under 42 U.S.C. Section 1983 to enforce the provisions of the Family Educational Rights and Privacy Act (FERPA), that disqualify from federal funding educational institutions that have a policy or practice of permitting education records to be released to unauthorized persons.

BUT, the same conduct that is not actionable under that federal statute may be a breach of contract. Query, does the contract between Duke and its students obligate Duke not to release such confidential information with permission, or even notice?

Duke hopes no one will stand up to it and discover and publicize how really badly Duke behaved.

It brings to mind the comments of Rae Evans, co-captain David Evans' mother, that Mr. Nifong has picked on "the wrong families."

Did Duke pick on "the right families"?

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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