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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:  June 27, 2007
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Duke Case: Sue, Say NO to Confidential Settlement

Hoping that people like Mr. Brodhead and the 88ers will just step back, ask themselves how Duke's faculty and administration got so far off the track, recognize their responsibility and repent is unrealistic. To believe it, one would have to be as gullible as Mr. Brodhead and the 88ers.

The "fiasco" was a horror for the members of the 2005-2006 Duke University Men's Lacrosse Team and their families, so there is a tendency to think whatever they decide to do and not to do is fine.

If they were the only victims and the circumstances that led to their suffering had been remedied, NOT indulging that tendency would be hard to fathom.

But the circumstances that led to their suffering have NOT been remedied and, with the fiasco having exposed fundamental political correctness problems in media and education as well as corruption in the criminal justice system and given the actual victims (previously called the suspects and threatened with castration, among other things) the opportunity to do great good, the golden opportunity presented should not be wasted.

There are no doubt several take-away lessons from the Duke Debacle. Chief among them, however, may be this: blind adherents of political correctness -- those who presume that whites, males, and economically privileged people are immoral, venal and racist, and blacks, females, and underprivileged people are rarely responsible for their failures --(1) rule the roost at most of our colleges, (2) likewise control much of the media, and (3) are convinced that it is better to be politically correct (i.e., to indulge those presumptions) than to be right.

If we could fix any only one thing, it shouldn't be the justice system. After all, It finally got to right results, didn't it? The bogus criminal charges against Reade Seligmann, Collin Finnerty and David Evans have been dismissed and Durham County, North Carolina District Attorney Michael B. Nifong has been publicly disgraced and suspended and soon will be officially disbarred and out of office.

The one thing most in need of doing is persuading the opinion-makers (professors, journalists, public figures) to change the perception of what is politically correct, to eliminate presumptions, and to be unafraid to assign responsibility objectively.

Imagine a course - at Duke, Harvard, or Ole Miss - designed to study the problems caused by presuming that those who have less are entitled to more, those who have more should have less, those who are white or male should have fewer opportunities, those black or female more, and that we should continue to create rules and requirements that discriminate based on race (against whites), sex (against males), and wealth (against those who have saved), or earnings (against those who are well paid for hard work).

Or a series in a respected national publication exploring, as has Charles Murray, the ravages of the Welfare State, its creation of a permanently dependent underclass.

The New York Times led the media lynch job and should be leading atonement. Instead, unsurprisingly, it's pushing the nutty notion that Mr. Nifong has been too severely punished, even though he has not yet been criminally prosecuted, civilly sued or held in contempt of court, and suggesting that he would not have been severely punished if his victims were poor men, quoting New York University Law Professor Stephen Gillers: "If the same case had involved three poor men, instead of defendants with private counsel and families that supported them financially and publicly, we would not likely see a disbarment, in North Carolina or anywhere. Id be surprised if there were even serious discipline.

Likewise, Duke University stubbornly remains in denial mode. Instead of apologizing, atoning and reforming, it's trying to move on by putting all the blame on Mr. Nifong and buying peace with confidential settlements that avoid the embarrassments of discovery and trial.

John Leo, a senior fellow at the Manhattan Institute and a contributing editor at the institute's City Journal, highlighted the evil at Duke overshadowed by the focus on Mr. Nifong:

"Because Michael Nifong made himself such a spectacular villain in the lacrosse case, [Duke President Richard] Brodhead escaped without much criticism. But here is what Mr. Brodhead did: On hearing the first reports, he abruptly canceled the lacrosse season, suspended the two players named in the case, and fired the lacrosse coach of 16 years, giving him less than a day to get out. "This helped create the impression that the players were guilty. His long letter to the campus on April 20 did the same thing. He didn't say the boys were guilty, but he talked passionately about the coercion and assault of women, the legacy of racism, and privilege and inequality all of which fed the anger aimed at the lacrosse team.

"Mr. Brodhead did nothing to deter the tsunami whipped up against the players by some students and the Group of 88, an alliance of mostly radical race and gender professors. One of the looniest of the 88, Houston Baker, answered a polite and worried letter from one of the lacrosse moms by calling her 'the mother of a farm animal.'

"Without any comment from Mr. Brodhead, the protesters issued death threats, carried banners that said 'castrate,' featured photos of lacrosse players on 'Wanted' fliers, and banged pots outside the boys' residences in the early morning hours to disturb their sleep. A word from the president about leaving the boys alone and guaranteeing them a fair trial would have been nice.

"Like Mr. Brodhead, the Group of 88 did not quite call the players guilty, but praised the campus protestors for 'shouting and whispering about what happened to this young woman.' No comment about that from Mr. Brodhead and no comment from him on Mr. Nifong for nine months. An engineering professor at Duke said, 'There never was a clear sense that the students were innocent until proven guilty.'

"Congratulations Richard Brodhead, Sheldon laureate 2007. And you should resign."

Mr. Brodhead does not seem to be planning to resign. With him, the families of the unindicted players settling confidentially was just fine. His plan is to use Duke money to calm, not to correct, to keep the punitive grader in place instead of sending her away in disgrace.

The bad news is that the Dowd family settled confidentially with Duke and perennial visiting professor Kim Curtis.

The good news is that the Dowd family filed a fine complaint that is a matter of public record and, since Kyle Dowd was not the only victim of Professor Curtis (there was another team member in that class), there might be another case, with discovery that will prove damning to Duke, and maybe even trial.

Kevin Mayer's damages probably were not as great as Kyle's, but he too apparently was punished by a rogue professor just for being a lacrosse team member and he should be able to use the Dowd complaint as a model for his own complaint. Moreover, evidence of what was done by Professor Curtis to Kyle should be ruled sufficiently related to be pursued in a Mayer case, to show a practice of punitively grading lacrosse player. I doubt that confidentiality settlement could keep Kyle from testifying in a suit by Kevin. A suit by Kevin would be especially fitting in the circumstances. Kevin, talk to your lawyer. Duke wants to avoid discovery and trial, that's obvious, so even if you aren't up to the big job of pushing real reform at Duke (I'm not saying you're not and I hope you don't say it), a simple lawyer's letter suggesting a suit should get you a confidential settlement too.

Ideally, all of the unindicted players will sue Duke for the damage done to them, especially by Mr. Brodhead and the Group of 88, pursue discovery and not settle under a confidentiality agreement. Settlement per se is not bad, but settling under a confidentiality agreement when the confidentiality obligation effectively makes the settler complicit in a cover up of bad behavior (as distinguished from providing protection for a legitimate trade secret) and that's very bad!

Critically important changes need to be made at Duke (and elsewhere). Hoping that people like Mr. Brodhead and the 88ers will just step back, ask themselves how Duke's faculty and administration got so far off the track, recognize their responsibility and repent is unrealistic. To believe it, one would have to be as gullible as Mr. Brodhead and the 88ers.

Don't hold your breath.

It's up to the unindicted players to put on legal pressure and good people to support them.

Jesus said, "Take up your cross and follow Me." NOT cooperate with culprits by taking some money to settle confidentially. Jesus did NOT say that following Him would be easy, or politically correct, or even practical.

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,,, and 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

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