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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:  May 18, 2007
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Of Dowd Settlement Shroud, Neither Side Should Be Proud

Like bloggers, parties to lawsuits are subject to criticism. When they put interest before principle, they should expect it.

The confidential settlement of the lawsuit brought by lacrosse player Kyle Dowd (Duke '06) and his parents against Duke University and Professor Kim Curtis based on alleged punitive grading resulting from bias against members of the 2005-2006 Duke University Men's Lacrosse Team by Professor (and member of the notorious Group of 88) Kim Curtis is a cover up.

Like Durham County, North Carolina's criminal justice system, Duke needs light, not darkness.

Anyone interested in the integrity of academia needs to know whether Duke paid nuisance value, fair value or a silence premium.

Surely Duke's donors and prospective donors should know the truth.

Duke's student newspaper, The Chronicle, was blunt:

"The end of the Dowd case...sets a bad precedent. It's over, both sides appear to be happy, but there are still a number of loose ends to a story that raises crucial questions of academic freedom and campus culture. Students want to know how the University will step in if a teacher crosses certain lines, and they also want to know whether they should still take a class with Kim Curtis-the major actor in this story....

"It's unnerving that Duke hasn't been transparent in this case. The administration's handling of the Dowd suit sets a bad precedent for how Duke may handle other similar cases in the future and how it is moving on in the aftermath of the lacrosse case."

Some have pointed out that Duke needed the Dowd family's cooperation to settle confidentially.

TalkLeft poster "inmyhumble opinion" on the Dowd case: "Was this suit about money or principle? Did the Dowd's settle for Kyle's 'P' and possibly some $$$, instead of exposing Curtis and ensuring the protection other students from her retaliatory practices?"

Poster "Mr. X" responded: "how much money did they get? for all we know, it was $1. Curtis is exposed by this. no other way to look at it rationally. as for protection from her retaliatory practices, that's really up to her employer now that this has been exposed, isn't it?"

"inmyhumbleopinion" replied that it was worse than that:

"no other way to look at it rationally?

"Sure there is. No liability admitted? Possibly settled for as little as one buck? Sounds like a nuisance suit settlement to me. And a Damn good one! Double the hourly rate of Duke's attorneys - they've earned it.

"as for protection from her retaliatory practices, that's really up to her employer now that this has been exposed, isn't it?

"The Dowds feel comfortable with other students' protection from Curtis' retaliatory practices being left up to her employer? That concession would be quite a win for Duke. Restored confidence from a formerly disgruntled student and his parents? All for possibly as little as a 'P' and eight bits? Triple that hourly rate!"

Hero of the Hoax Dr. William Anderson on the genesis of the Dowd case: "Kim Curtis was not a victim here. Had she made it clear to Kyle Dowd that she was going to rise above the hatefest and perform those duties to him and the others that her contract required her to do, then this entire episode could have been avoided. These were extraordinary circumstances, but she chose to be a left-wing feminist instead of a college professor, and that is what caused this unfortunate situation."

Exactly.

"Mr. X" thought that the Dowds achieved something more than a private benefit by suing:

"...because of this lawsuit what are Duke students now aware of? They are aware that Curtis is alleged to have engaged in retaliatory grading and in fact a grade she gave, when challenged, was changed by Duke.

"College students aren't dumb and word about which profs you should take or avoid spreads around campus like a wildfire. If Duke doesn't dispose of Curtis at some point she will probably wind up on a lot of students 'avoid' lists."

Poster "Om": "...Mr. X says there's no other rational way to look at this, so...perhaps this is true. Perception is reality, they say. But, if Kyle wanted vindication he should have held out for a true grade on his paper - made Duke give him a B+ instead of a "P". One can look at this suit, and your defense of it, as a symptom of our overly litigious society where anyone can make a case of anything anytime, merely because they're upset with someone. We don't know the terms of this settlement so we are left to speculate. I see a real possibility that Duke simply made a rational decision that there was no point in fighting this, regardless of Curtis' motives. Grading essays and papers is inherently subjective, if not arbitrary, given each individual teacher's inherent biases and attitudes. How can you prove a paper deserves a D or an A? Hire a battery of lawyers and a few egg-headed expert witnesses? For what? If you can settle a case for nominal cash and a 'P' grade that lets a kid who feels legitimately aggrieved (and whose parents actively excuse his excessive absences from class), whether he is or not, move on with life, you probably do that every time."

Duke09Parent defended the Dowd decision to settle confidentially as realistic:

"In my nearly 30 years of litigating personal injury cases, including professional malpractice, apologies for wrongdoing as a result of litigation are exceedingly rare. They are often sought, particularly in malpractice cases, but almost never given. It is not a relief the courts can give. It is not unusual for apologies to be given for the suffering a victim endures, but it is quite unusual for a wrongdoer to admit fault, even in a settlement."

True. That's why some cases are tried instead of settled.

Duke09Parent was displeased with my criticism of the confidentiality of the settlement:

"Re Michael Gaynor, anyone who spends time or makes a living writing publicly about events or issues which lead to litigation absolutely HATES confidentiality agreements. It deprives them of at least one more thing to write about. If the parties are satisfied with a settlement, including the confidentiality part of it, that should just about end it. Of course, we can still speculate about what the terms were, but we shouldn't blame the parties who settled for it. There was no way that Duke (or any institution subject to public scrutiny and criticism) would settle a case without a broad confidentiality agreement. I hope they extracted some commitment from Duke to rectify the problem, particularly Curtis, but that's pretty close to unenforceable anyway.

"The allegations of the suit were detailed enough to be pretty damning of Curtis. She might sue for defamation, but she would have to find some publication of a falsehood about her by the Dowds of the allegation outside the suit papers. The suit probably finishes her career in any serious educational position where she could grade students."

First, Professor Curtis's career does not seem finished (unless Duke is not a serious educational institution), since she still scheduled to teach in the next semester.

Second, the allegations in the indictments of Reade Seligmann, Collin Finnerty and David Evans REALLY were damning of them. Surely we should have learned from the Hoax (if we didn't know it earlier) that allegations are not proof.

Third, the sex scandal of the Roman Catholic Church (my Church) became a tremendous problem because complaints were settled under confidentiality agreements for many years. Some situations demand correction, not cover up.

Fourth, I don't make a living writing publicly about events and issues. I do that kind of writing free of charge. And there is not a dirth of material for me to write about, so I criticized the confidential settlement of the Dowd case as a matter of principle (the same basis upon which I criticized the prosecution in the Duke case and the way Duke University and the Group of 88 responded to it).

Duke09Parent: "Kyle wasn't completely righteous in how he treated the course, also. With all the background we know we are convinced Curtis was unfairly vindictive and Kyle was hosed, but the outcome was far from certain. The Dowds got what they wanted and needed. Let them be."

I don't know how "righteously" Kyle Dowd treated that course, but the facts of which I am aware include that Kyle Dowd and the other team member were both passing before March 14, 2006 and both were failed and were the only ones failed by Professor Curtis after she joinmed the Group of 88. The Dowds chose to settle confidentiality and so they receive the benefits and burdens that come with it. One of the burdens is being criticized for settling confidentiality.

Poster "rds248":

"I spoke to Kyle last week.

"He is bound by the confidentiality agreement, and I know nothing more than what has been reported here. It is my impression that he is satisfied with the settlement and that is what is important.

"This lawsuit was not filed so bloggers like Michael Gaynor could write long articles about Duke taking it on the chin. It was filed to address a specific issue regarding Kyle's grade and the effect it had on his GPA. This was rectified. Although Duke did not admit any wrongdoing publicly I think it is quite clear that by changing the grade they are silently admitting that the suit had merit, and that Professor Curtis's action in giving him a failing grade was improper, as alleged.

"There are likely to be many more civil suits, and it is likely that some of them will also be settled confidentially. These guys have busy lives and want to move forward with them. Many of them may not wish their future plans to include hours in Durham giving depositions and sitting in a courtroom in a lengthy civil trial. With regard to Kyle, he is working full time at a high powered investment firm and on weekends playing his second season of Pro Lacrosse with the SF Dragons. During all of this he was going back and forth to Durham as well. I have no idea whether this played into his decision, but I do think he is relieved that it is behind him.

"Clearly there is some merit to the wish that the Duke administration take some responsibility for their wrongful actions. On the other hand it is unfair for bloggers sitting behind their computers to have expectations of what the families and players should sacrifice to achieve that."

Like bloggers, parties to lawsuits are subject to criticism. When they put interest before principle, they should expect it. There is a significant distinction between settling without an admission of liability, and settling confidentially. If there is no confidentiality, then nothing is being paid to buy silence. If there is confidentiality, the logical questions are who wanted it and how much did it cost. When an institution like Duke is buying silence, it's noteworthy.

Poster "Willowglen": "Hmm.. I take a positive view of this settlement - and that's because I am proceeding from the assumption (likely unassailable) that the Dowds are principled people. So more than anything they wanted an apology from Curtis that she acted wrongly and treated their son unfairly. You can bet an apology was received. And to the lefty radical types (see e.g., Farred, Chafe, Holloway) an apology or an admission of wrongdoing is enormously significant - inasmuch as doing so means that they cannot continue to blithely operate in their 'ism' laden echo chamber. Now, of course, Duke was able to force Curtis to apologize (and you can bet there were awful e-mails in the discovery file) because of her low rent status as a perpetual visiting professor of victim studies, but still, the fact that she was compelled to apologize will be a fact that runs through the ranks of the radical lefties like wildfire. No, they won't admit wrongdoing, but they will be ostensibly principled when continuing to act in an unprincipled way - a real burden for them."

Since Professor Curtis is still scheduled to teach next semester, it's not apparent that there was a private apology from Professor Curtis (or even Duke).

Even if there was a private apology, it's covered up by the confidentiality agreement and of no public benefit.

The Chronicle is right: "the settlement also carries a sweep-it-under-the-rug feel to it, and its details are still murky and need to be cleared up."

Mike Lee is right about The Chronicle's editorial on the Dowd case settlement:

"[It] is on the right track but does not go nearly far enough. The students, alumni, and parents deserve to know if Kim Curtis is guilty of the offenses Dowd alleged. It's simple, either she did it or she didn't. The fact that the University quietly settled the case and Dowd received the P he requested means one of two things; either Curtis cannot calculate grades properly, or she is dishonest and guilty of one of the worst ethical violations possible.

"So which is it, does Duke now tolerate Professors who are incompetent or dishonest? Either way, Kim Curtis is a disgrace. The fact that she remains employed by Duke is a black eye for the University."

"Savant" said it splendidly:

"If Duke does not believe that [Professor Curtis] used her privilege and position of authority to oppress students, she has every right to expect Duke to publicly support her and dispel any misperceptions about her character. If, on the other hand, she indeed tried to fail Dowd in retaliation..., she should be terminated.

"If she does not appear on campus next fall (perhaps to 'pursue other opportunities') that will say enough. If she does appear on campus, and there has been no resolution about her guilt in the matter, then Duke is clearly whitewashing the incident...."

Like the Durham Police Department is doing with respect to the Duke case investigation.

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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