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"And ye shall know the truth, and the truth shall make you free." - John 8:32
WEBCommentary Contributor
Author:  Michael J. Gaynor
Bio: Michael J. Gaynor
Date:  May 15, 2007
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Duke Case: The Dowd Settlement Is NOT Big or Good News

Unfortunately, the confidentiality agreement allows Duke University to keep confidential the going rate for thirty pieces of silver.

In "Justice for Duke Lacrossers: The Dowd family strikes back," posted on January 6, 2007, I reviewed the complaint by Kyle Dowd, a member of the 2005-2006 Duke University Men's Lacrosse Team, and his parents against Duke University and Professor Kim F. Curtis and concluded: "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."

It did not happen.

The case quietly was settled.

Brooklyn College History Professor Robert K.C. Johnson deemed Duke University's settlement of the Dowd case "[b]ig news" and opined that "Duke is to be commended for settling the case, thereby allowing for a just resolution to prevail."

Commending Duke University for "allowing...a just resolution to prevail."

As Republican presidential hopeful Mitt Romney said to Chris Matthews when asked if Bill Clinton returning to the White House would be a good thing: "YOU HAVE GOT TO BE KIDDING."

Duke University pursued political correctness run amok during the Duke case, not justice, and Kyle Dowd was one of dozens of victims of Duke's lack of interest in justice.

Justice ultimately prevailed in the Duke case, but not thanks to Duke University.

If Duke University had an interest in justice prevailing, the Group of 88 (including Professor Curtis) would be held to account instead of supported and the truth would be proclaimed instead of distorted.

If you think Duke University is contrite, check out The Johnsville News:

"comment: Duke Whitewash, version x.x.

"The following web page is the 'current' official Duke University whitewashed version of the 'Duke Lacrosse Case.' It is a lame history of the Nifong/Mangum hoax.

"It is full of pro-Brodhead spin. It does not mention the names of the three innocent men (Evans, Finnerty, & Seligmann). They are the 'three young men,' who shall remain nameless. It also, of course, does not use the term the 'Group of 88,' and go into any details regarding the vigilante Duke faculty. It does not mention the Dowd settlement, regarding grade retaliation by Prof. Kim Curtis (Did Duke.edu post any notice regarding that settlement?).

"Brodhead has offered several explanations of what happened, so it is difficult to remember what version number this one is."

Upon the settlement of the Dowd case, the following statement was issued:

"This lawsuit has been settled through mediation to the mutual satisfaction of Kyle Dowd and his family and Duke University, and without any admission by any party of legal liability. The mediated settlement terms are, of course, confidential.

"As reflected on Kyleís transcript, he has received from Duke University a 'P' in the Politics and Literature course he took in his senior year.

So Kyle's Duke Grade Point Average is bumped up (a P does not affect it; a D dropped it)and the amount of money (if any) that Duke University paid the Dowds to be quiet is confidential.

The villainous professor was named in the lawsuit, but not in the statement.

Professor Johnson:

"To review: the Dowdsí suit alleged grade retaliation, and had asked that Kyleís grade in a class taught by Kim Curtis be changed to a 'P' (pass). In this respect, then, the settlement is one-sided.

"Two possible explanations for why did Duke settled:

1. The University recognized that Curtisí behavior was wrong.

2. The University recognized that it could not win a lawsuit, given the strong evidence of retaliation against Curtis, who put in writing her belief that two of her students were at the least accomplices to rape."

Did the University acknowledge that Professor Curtis' behavior was wrong?

Of course not.

Did the University recognize that it could not win the lawsuit?

The decider(s) at Duke University probably did not expect to win the lawsuit (although Duke University has exuded arrogance during the Hoax), but the case really was quickly and quietly settled because Duke University did not want the adverse publicity that would result if the case proceeded from pleadings through discovery to public trial, Duke University has plenty of money to buy silence, and litigating with Duke University, especially in North Carolina, is an expensive ordeal, especially for a New York family.

Unfortunately, the confidentiality agreement allows Duke University to keep confidential the going rate for thirty pieces of silver.

Duke University's refusal to admit liability as part of the settlement is tolerable, since giving Kyle a "P" for the course is tantamount to an admission of liability, but the significance of the settlement depends upon the amount of the settlement and the Dowds agreed to keep it secret.

I am not curious about Dowd family financial affairs generally, but the key to evaluating the settlement is the amount (if any) paid by the defense and when the gravamen of the complaint is punitive grading and the alleged culprit is a professor at a leading educational institution that solicits and receives enormous charitable contributions in the expectation that proper standards will be maintained, keeping the settlement amount confidential is problematic.

If Duke University paid nothing or nuisance value, that suggests that the lawsuit was without merit and the grade change for a graduate was of negligible interest to the public.

If Duke University paid a sum substantially in excess of the cost to Duke University of litigating the case, then that payment is tantamount to an admission of liability and it's fair to ask what action Duke University will take against Professor Curtis.

I set forth my view on confidentiality agreements before the Hoax, in an article entitled "Truth and Polygraphs, Yes! Confidentiality Agreements, NO!" and suggesting a course of action in an alleged sex scandal involving a clergyman.

I wrote:

"The Monsignor could have been counseling his secretary about her marital problems.

"However, the 14-year old daughter of the secretary reportedly has provided a sworn statement to the effect that she saw her mother kissing and sitting on the Monsignor's lap in his hot tub.

"It's difficult to conceive of THAT as innocent, but perhaps the daughter did not tell the truth.

"If the Monsignor can honestly deny that the hot tub incident ever happened, he should volunteer to do so during a polygraph examination.

"Otherwise, he should admit his sin and repent.

"The Church needs to ascertain the truth, if possible, instead of to conceal it through the use of confidentiality agreements, as has been done for years, on the bad advice of attorneys and insurers.

"Sadly, the Church's horrific sexual abuse scandal did not put an end to its use of these confidentiality agreements."

The use of confidentiality agreements to conceal the truth is hardly limited to sex scandals involving clergy.

Employers also use them to keep employees quiet.

A typical confidentiality provision in a severance agreement states:

"The parties are to keep confidential and not disclose the terms of the Agreement at any time to any other person, other than pursuant to the order of a court or governmental agency of competent jurisdiction, with the exception of the parties' accountant or tax preparer, attorney, or [the Employee's] immediate family and the Employer's Board of Directors, provided they inform them of this provision requiring confidentiality and they agree to be bound by its terms. In response to any inquiry from third persons, the parties may state only that they amicably resolved their mutual and separate concerns. Disclosure of the terms of this Agreement is a material breach of this Agreement, entitling the non-breaching party to damages, including but not limited to attorneys' fees and costs."

Elsewhere in the agreement is a provision that "this Agreement in no way constitutes an admission of any wrongdoing on the part of either party."

Conveniently sparing the Employer certain knowledge.

The Employer typically agrees that when asked about the Employee, the Employer will only confirm that the Employee was employed in whatever capacity from such date to such date.

So, if the Employee is terminated for adultery, or sexual abuse, or sexual harassment, the agreement provides that the information be kept from even those with a legitimate need to know, in the absence of legal compulsion.

If Professor Curtis is guilty of punitive grading, it should be made public knowledge, not hidden.

The integrity of Duke University is at stake.

Duke students are entitled to know.

Duke University's confidential settlement of the Dowd case strongly suggests that Duke University does not intend to make it so.

Donors and prospective donors, students and prospective students, please take note.

If the Dowd case had gone to trial, THAT would have been big news.

The settlement is a footnote and Duke University's financial statements won't specify how much (if anything) was paid to stop the case from proceeding and to induce the Dowds not to speak (or write) about that.

With the Hoax exposed and the Duke case finally and fully dismissed, the Durham Police Department is in whitewash mode, the North Carolina State Bar apparently has targeted only Durham County, North Carolina District Attorney Michael Nifong, the North Carolina Conference of District Attorneys is trying to undo some of the benefits of open-file discovery and Duke University is trying to put ITS disgrace behind it without admitting wrongdoing or punishing the culprits.

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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Copyright © 2007 by Michael J. Gaynor
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