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"And ye shall know the truth, and the truth shall make you free." - John 8:32
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Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  January 8, 2007
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Justice for Duke Lacrossers: The Dowd Family Strikes Back!

The Dowd family has sued Duke University and Professor Kim F. Curtis!

May justice be done!

Kyle Dowd is a 2006 Duke graduate and a member of the 2005-2006 Duke University Men’s Lacrosse Team targeted by Durham County, North Carolina District Attorney Michael B. Nifong, betrayed by Duke University and vilified by much of the mainstream media as young men who either raped or covered up for rapist teammates,

Patricia and Benjamin Dowd are Kyle’s proud parents.

Kyke and his parents are the plaintiffs.

Duke University is a North Carolina nonprofit corporation endowed by James  B. Duke to provide “sane and practical” education to America’s youth and accredited by the Southern Association of Colleges and Schools Commission on Colleges.

Ms. Curtis, according to her online profile, is a Visiting Assistant Professor of Political Science at Duke who “specializes in political theory with particular concentration in contemporary continental work and feminist theory” and who has “published articles on multicultural education, ethical debates among feminists over new reproductive technologies, and the early women’s liberation movement” and “is currently at work on a book on the feminist movement in the United States that examines the relationship between theory and practice.”

Ms. Curtis has been a visiting professor at Duke University for about ten years. She received her B.A. from San Francisco State University in 1979 and her Ph. D. from the University of Massachusetts, Amherst a dozen years later.  She has written a book, Our Sense of the Real: Aesthetic Experience and Arendtian Politics (1999) and  chapters in two books: (1) "Multicultural Education and Arendtian Conservatism: Memory, Historical Injury and Our Sense of the Common", in Preserving Our Common World: Essays on Hannah Arendt and Education, edited by Mordechai Gordon (2001), Boulder, Colorado: Westview Press and (2) "Aesthetic Foundations of Democratic Politics in the Work of Hannah Arendt", in Hannah Arendt and the Meaning of Politics, edited by Craig Calhoun and John McGowan (1997), Minneapolis: University of Minnesota Press. Not to mention a paper under review titled “Rapture and Rupture: Ruminations on Enclave Politics, Political Oblivion, and the Need for Recognition in the Early Women's Liberation Movement”;  "Aesthetic Experience and the Public Sphere", in Zwischen Forum and Basar (2001), Graz, Austria: Forum Stadpark; and "Free Speech Under Attack", The News & Observer (October 24, 2001).

When Crystal Gail Mangum claimed to have been gang raped at an off-campus party held by members of the 2005-2006 Duke University Men’s Lacrosse Team, Ms. Curtis believed her.

When that statement expressing confidence that the DNA tests would not implicate any team member was issued on March 28, 2006, the next day Ms. Curtis made a statement about the possibility that the team members at the party might be protecting another person or persons: “The self assurance in the statement issued yesterday by the team that they will be exonerated by the results of the DNA testing makes me wonder if we've gotten the full story about who was at the house that night. Were there others present who in fact carried out the rape and who are being protected by everyone else who was there? How do we know who was there?"

A question Ms. Curtis was not asking was how do we know there was “a rape.”

Kyle Dowd had the misfortune to be taking a course with Ms. Curtis when Ms. Mangum cried rape.

A senior, Kyle and another unindicted member of the team were passing  before Ms. Mangum cried rape.

Ms. Curtis gave each of them F’s for the course, nearly keeping Kyle from graduating.

With the Duke case collapsing and all of the other North Carolina District Attorneys calling on Mr. Nifong to remove himself from the case and the North Carolina State Bar investigating him, the Dowd family decided the moment was right to file a lawsuit against Duke University and Ms. Curtis.

BRAVO!

Lis Wiehl has been a  FOX News legal analyst since October 2001. In addition, she is an associate professor of law at the University of Washington School of Law and a legal commentator on National Public Radio’s All Things Considered.

Previously, Ms. Wiehl served as a legal analyst for KIRO-TV (CBS) and NBC News. Before that, she was principal deputy chief minority investigative counsel for the United States House of Representatives, Committee on Judiciary, an executive assistant at the United States Attorney’s office and a litigation associate for Perkins Coie law firm.

Ms. Wiehl received an undergraduate degree from Barnard College in 1983, a Master of Arts in Literature from the University of Queensland in 1985 and a Juris Doctor from Harvard Law School in 1987.

On January 5, 2006, FOX News’ John Gibson reported on the Dowd suit on “The Big Show” and Ms. Wiehl (without demonstrating familiarity with the complaint) dismissed the Dowd case as doomed and spoke in favor of immunizing professors and universities from liability even under the circumstances alleged in the Dowd case.

Mr. Nifong apparently has absolute prosecutorial immunity (but, fortunately, only qualified immunity for his investigative efforts).

Universities and professors should not have absolute grading immunity.

Let one of the lessons learned from the Duke case experience be that a professor with an agenda and without fairness may well abuse his or her grading power (just as some prosecutors abuse their prosecutorial authority) and all abusers be held to account!

The carefully prepared complaint in the Dowd case is, I suspect, more educational than Ms. Curtis’s course.

The complaint sets forth eight claims:

(1)   Breach of contract (against Duke);
(2)   Unjust enrichment (against Duke);
(3)   Fraud (against Ms. Curtis and Duke);
(4)   Negligent misrepresentation (against Ms. Curtis and Duke);
(5)   Intentional infliction of emotional distress (against Ms. Curtis and Duke);
(6)   Negligent infliction of emotional distress (against Ms. Curtis and Duke)’
(7)   Negligence (against Ms. Curtis and Duke); and
(8)   Punitive damages (against Ms. Curtis and Duke).
Blithely dismissing it is a big mistake.

This overview of the Dowd case is set forth in paragraph 7 of the complaint:

“This case arises from an ongoing ‘scandal’ at Duke University stemming from false allegations of criminal conduct against three members of the men’s lacrosse team at Duke. In brief, Kyle Dowd and one other lacrosse player (neither of whom are among the three that face the dubious criminal charges) were enrolled in a class taught by Defendant Curtis entitled ‘Politics and Literature’ during the Spring 2006 semester at Duke. Before the ‘scandal’ broke, both of the players were earning passing grades on their assignments in that course. After an accuser made allegations of rape and/or sexual assault against three other members of the team, Defendant Curtis assigned both of the lacrosse players in her ’Politics and Literature” class (and onlv the lacrosse players) failing grades on their final assignment in the class. Plaintiff Kyle Dowd was given an ‘F’ as his final grade in the class, Initially, Duke refused to entertain any arguments by Mr. Dowd and his parents that the grade was incorrect. The Dowds, anguished in their belief that Kyle would not graduate, pleaded with Professor Curtis and Duke to admit their error. Duke rebuffed their requests, but eventually recognized certain credits that Kyle had earlier earned at Johns Hopkins University, thereby allowing him to graduate. In the months after Kyle Dowd graduated, Duke has since stated that the “F” grade originally given to Kyle Dowd resuIted from a ‘calculation error,’ and has changed Mr. Dowd’s final grade to a ‘D,’ a grade that still has no basis in reality.”

Kyle had enrolled at Duke in the fall semester of 2004, at the beginning of his junior year of’ college, transferring to Duke from Johns Hopkins University, where he was a scholarship athlete on the men’s lacrosse team, to become a member of the men’s lacrosse team at Duke. Kyle received a partial athletic scholarship for his junior and senior years at Duke and his parents paid the remainder of his tuition, fees, room and board, and other expenses at Duke.

In the spring semester of 2006 at Duke, Kyle was one of about forty students in Ms. Curtis’s “Politics and Literature” class, which, according to the 2005-06 Duke University Undergraduate Bulletin, was a course that examined “the enduring questions of ethical and political issues and controversies as expressed in political philosophy and politics and as illustrated in Western literature” and sought to provide a “comparative historical, literary, and philosophical analysis.”

The complaint alleged that Ms. Curtis :announced at the beginning of the ‘Politics and Literature’ course that students’ grades would be based upon four components (to wit, three papers and ‘class participation’), each worth twenty-five percent of the grade,” and “Professor Curtis did not specify how ‘class participation’ would be graded.”

The complaint further alleged:

“In early March 2006, a woman accused three members of the men s lacrosse team at Duke of rape and/or sexual assault. To date, little to no evidence has been produced tendthg to suggest that any of the men charged committed a rape or sexual assault On the other hand, much evidence has been put forth tending to show that the charges are completely false. Nonetheless, these three members of the lacrosse team (Davjd Evans, Collin Finnerty, and Reade Seligmann) were indicted in Duke County Superior Court and charged with felony rape, felony sexual offense, and kidnapping, The rape charges have since been dismissed by the District Attorney.”

“Since the initial report of this accusation in early March 2006. a media firestorm has ensued which has surrounded all members of the men’s lacrosse team and Duke University itself. The accusation has been widely reported [in] national and local press.”

“Members of Defendant Curtis’ ‘Politics and Literature’ class, including Kyle Dowd, turned in their first two papers in the course prior to the media firestorm surrounding the criminal investigation of the lacrosse team.  On these two papers, Mr. Dowd received grades of ‘C+’ and 'C-'.  The other member of the men’s lacrosse team in the class also received passing grades on the first two papers submitted to Defendant Curtis in the course.”

“Shortly after the accusation was first reported in March 2006, Defendant Curtis permitted her name to be listed in support of an ad taken out in a publication named the Duke Chronicle entitled ‘What Does a Social Disaster Sound Like?,’ the theme of which was to completely malign the lacrosse team members and to sympathize with the accuser in the criminal investigation.  The ad specifically referred to ‘what happened to this young woman,” referring to the accuser, as if it were an established fact, rather than a false claim.  Nothing in this ad supported the members of the lacrosse team in any way, and Defendant Curtis permitted her name to be put on this ad. The group that sponsored the ad has come to be known as the ‘Group of 88,’ referring to the 88 persons who listed their names in support of the ad, of which Defendant Curtis was one.”

“On April 19. 2006, Defendant Curtis sent out an e-mail to all the individuals in her classes, the subject line of which was entitled ‘talking’, which stated as follows:

 
I know this has been and continues to he a difficult time for all of you. For many reasons, I do riot think that the classroom is the best place for discussing the things the allegations and now on­going criminal proceedings raise. But I also don’t want to act as if we all aren’t troubled, tried, and in need of conversation and fellowship.

  If any of you, singly or in groups, would like to have coffee, lunch, or a walk, to talk over things—how this is affecting you, what we should do as a community, etc. please let me know. I am available.

  Some of you may he exhausted by the amount of time you’ve spent talking and thinking about it, but others may, in the coming days, need/want a conversation. I am here—until May 5th,

  My Best,

  Kim”

“Kyle Dowd turned in the last paper in the class on May 1, 2006. On May 5, 2006, Kyle Dowd learned that Defendant Curtis had given him a grade of ‘F’ for the class. Going into the second semester of his senior year, Kyle Dowd had a GPA of approximately 3.4 on a 4.0 scale, and had received a grade of less than ‘C’ on a paper only one time prior in any class.”

“Without a passing grade in the ‘Politics and Literature’ course taught by Defendant Curtis, Kyle Dowd would be unable to graduate as expected on May 14, 2006. Mr. Dowd had to suffer the indignity of calling his parents and telling them he did not believe he was going to graduate, which immediately caused great emotional distress and anguish to his parents. Kyle Dowd also had a job in New York City that he was supposed to begin in July 2006, but that too would be lost if he did not graduate. Kyle Dowd himself suffered great emotional distress as a result of the report of the ‘F’ grade.”

“Kyle Dowd immediately sent an e-mail to Defendant Curtis seeking an explanation, as he had no grounds to think that he would or should receive an ‘F’, and also because the credit for this class was necessary for Kyle Dowd to have enough credits to graduate as scheduled on May 14. Kyle Dowd believed that Defendant Curtis had perhaps not received his final paper.”

“Defendant Curtis responded by e-mail un Sunday, May 7, 2006, as follows:

 
Dear Kyle,

I did receive your final paper and gave it an F, I also gave you a failing grade for Participation since you did not attend nearly the entire last month of class. I am currently out of town and will return on Wednesday when 1 will be available to discuss this with

Kim Curtis

“The quality of Kyle Dowd’s final paper in the ‘Politics and Literature’ course was as good or superior to the other two papers he had submitted in the course, on which he had received grades of ‘C+’ and ‘C-‘.”

“The only other ‘F’ grade given by Defendant Curtis on the final paper in the ‘Politics and Literature’ course was given to the only other men’s lacrosse player in the class. Like Kyle Dowd, that student too had received passing grades on the first two papers in the class.”

“As to class participation, Kyle Dowd missed six out of thc thirty class sessions in the ‘Politics and Literature’ course. The first absence was an excused absence for a lacrosse team game that was played out of state. The other five absences took place after the institution of the criminal investigation, and each of these five absences was caused by Mr. Dowd’s need to meet with attorneys relating to the criminal investigation. At that time, every member of the lacrosse team had been publicly named by the prosecutor as a target of the investigation, and each faced the prospect of being indicted for felony crimes carrying potential prison sentences in excess of twenty years.”

“In four of these five instances where Kyle Dowd missed class due to these legal obligations, Mr. Dowd sent an e-mail to Defendant Curtis ahead of time, explaining to her that he would be absent from class and the reason for his absence, Defendant Curtis never once indicated to Kyle Dowd in any way that any of this was a problem of any type.”

“On May 6, 2006, Kyle Dowd sent an email to the faculty contact person for grade appeals in the political science department at Duke, Michael Munger, regarding the situation. Mr. Dowd received the following response from Munger on Sunday, May 7, 2006:

We are not going to meet.

There are no grade appeals. Instructors assign grades, and that is all there is to it.”

“Munger sent a second email to Kyle Dowd the next day, on Monday, May 8, 2006, which was titled ‘Wow! No wonder you guys were mad ....’, and in that e-mail stated that his e-mail the prior day was only part of what he intended to send, and then explained in full the university internal appeal process”

“Defendant Curtis met with Kyle about the ‘F’ grade on Wednesday, May 10, 2006. In this meeting, Defendant Curtis told Mr. Dowd that she had given him an ‘F’ on the final paper because Mr. Dowd had made strong statements in the paper without backing them up.”

“As to class participation, Defendant Curtis told Kyle Dowd during this May 10 meeting that site gave him an ‘F’ on that component of the grade because Mr. Dowd ‘was not there’ and Mr. Dowd had ‘dropped the ball.’ Defendant Curtis admitted during this meeting that she gave a grade of ‘F’ on the final paper to only two students, one of which was Mr. Dowd.”

“At the conclusion of this meeting Defendant Curtis refused to change the grade. As a result, Kyle Dowd spoke with several Duke administrators, and pursued an administrative appeal ol’ the grade. During his conversations with Duke administrators, Mr. Dowd was told Defendant Curtis had told a Duke administrator that the reason she had given Mr. Dowd a grade of ‘F’ on the final paper was because Mr. Dowd had confused the characters from the book which was the subject of the paper. This was a different reason than the reason Defendant Curtis gave to Mr. Dowd during their meeting as the basis for the purported ‘F’grade.”

“On or about May 10, 2006, Kyle Dowd was informed by the Duke administration that classwork he had performed at Johns Hopkins could be credited further, and that with those credits, he had sufficient credits to graduate on schedule, even with a grade of ‘F’ from Defendant Curtis, Mr. Dowd attended graduation on May 14, 2006 and was awarded his degree, although his transcript continued to show a grade of ‘F’ in Defendant Curtis’ ‘Polities and Literature’ class.”

“After graduation, Kyle Dowd continued the internal appeal process of the purported ‘F’ grade. Ultimately, on August 8, 2006. Mr. Dowd’s mother, Patricia Dowd, received an email from the Duke administration informing her that the result of the internal appeal process was a finding that a ‘calculation error’ had been made in the calculation of Kyle Dowd’s grade in the ‘Politics and literature’ course, and that on July 17. 2006 the grade had officially been changed from a grade of ‘F’ to a grade of ‘D’.  This was the first notice to the Dowds of the result of the internal appeal process.”

“The tuition at Duke University for the 2005-06 academic year was $31,420, or approximately $1,047.33 per credit-hour, based on an average of fifteen hours per semester.”

The Dowd claim surely has a plausibility that the gang rape claim did not.

IT is trial-worthy.

Was it a coincidence that the only students among about forty whom Ms. Curtis failed were members of the 2005-1006 Duke University Men’s Lacrosse Team?

Do you believe that a student with a 3.4 GPA who never had gotten less than a C on any other paper handed in a final paper deserving of a F shortly before he expected to graduate?

Do you believe that a professor insisting that there was a rape would have the gall to tell Kyle he got an F on his paper for making strong statements without backing them up?

The complaint asserted:

”Duke by and through its agents breached the contract with Kyle Dowd and his parents, including but not limited to the following:

a. Discriminated against Kyle Dowd with respect to the grade assigned him in Defendant Curtis’ ‘Politics and Literature’ class due to his membership in the lacrosse team, in violation of the official policy set forth in the Undergraduate Handbook, as well as in violation of the terms of Duke’s accreditation standards and Faculty Handbook;

b. Did not allow Kyle Dowd to graduate using credit from his Politics and Literature class -- the grade…which Duke has subsequently admitted was, at a minimum, a passing grade – but only on the basis of certain other credits that Kyle had earned at John Hopkins University;  

c. Employed a professor (i) who graded on the basis of’ bias and prejudice, in violation of policies set forth in the Undergraduate Bulletin and the Faculty Handbook, and in violation of accreditation standards; (ii) who cited Kyle Dowd’s absences as one reason for the failing grade, even though Kyle had notified her in writing of his reasons for each absence prior to being absent to which Defendant Curtis never objected and had turned in all written work in a timely fashion; and (iii) who violated Duke’s faculty policy concerning ‘integrity’ by providing multiple and different reasons for attempting to fail Kyle Dowd when questioned about the matter by Mr. Dowd and the Duke administration.” 
                                                

Anticipating the defendant’s defense, the Dowds asserted, rightly, in my view, that “[e]valuating the conduct at issue does not require an inquiry into the nuances of’ educational processes and theories but rather an objective assessment of whether Duke performed on the specific terms of its contract with Plaintiffs.” 

Kyle seeks to have the course treated as a pass/fail course (sensible under the circumstances) and he and his parents want the tuition paid for the course refunded (likewise right).

Also, the Dowds pointed out that “Professor Curtis made a false statement of material fact, to wit, that Kyle Dowd had failed the ‘Politics and Literature’ class he needed to graduate”; “‘[t]he false representation was calculated to deceive” and “intentionally and recklessly stated to… Kyle…without any heed as to whether he had actually’ earned a failing grade” and “made with the intent to deceive” and Kyle was deceived by it, reasonably relied on it and suffered damages in excessive of $10,000 “[a]s a direct and proximate result” of it, for which both Ms. Curtis and Duke (having known or being fairly chargeable with knowing and having ratified Ms. Curtis’s misconduct “by doing nothing to change, stop or modify the…inappropriate action of Defendant Curtis, the actual or apparent agent of Duke”) are liable to Kyle.

Alternatively, the Dowds allege that the misrepresentation made by Ms. Curtis and other Duke employees and agents that Kyle had failed Mr. Curtis’s “Politics and Religion” course was negligent, and Kyle is entitled to recover damages in excess of $10,000 on that basis from both Ms. Curtis and Duke.

The Dowds also claim intentional infliction of emotional distress, for reasons that should be obvious to any fair-minded reader.

Alternatively, the Dowds pled negligent infliction of emotional distress.

Finally, the Dowds assert simple negligence, that is, that Ms. Curtis “breached her duty of care by negligently assigning a failing grade to Kyle…, when such grade had no basis in reality, causing the Dowds damages in excess of $10,000.

Finally, the Dowds seek punitive damages in accordance with North Carolina statutory law, based on “willful or wanton conduct” and “malice,” against both Ms. Curtis and Duke.

Like the Duke case, the Dowd case has the potential to bring about great good, if justice is truly done and the real culprits are held to account.

Michael J. Gaynor

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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.


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