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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:  October 4, 2007
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Duke Case: Impeach President Brodhead!

For Duke to move on, Mr. Brodhead must be gone.

Kristin Butler, now a Duke senior, has been writing for Duke's newspaper about the future of Duke's president, Richard H. Brodhead, whose performance is under review.

In August, Ms. Butler wrote "Bye-bye, Brodhead? with all deliberate speed," suggesting that Mr. Brodhead should go.

Ms. Butler:

"... imagine how Dick Brodhead must feel about his upcoming performance review.

"Until Dec. 31, a seven-member committee led by Board of Trustees Vice Chair Daniel Blue (a Duke law grad and former speaker of the N.C. House of Representatives) will assess Brodhead's first three years in office. Given that Blue's findings will almost certainly influence Trustees' decision on whether or not to extend Brodhead's five-year contract-up in 2009-our president may be in for a stressful semester.

"Precedent largely dictates the structure of Brodhead's review. To begin, the committee will actively solicit comments from those who work closely with Brodhead. Once finished, it will offer its findings to the full Board, which will take the findings under advisement and reach a decision about his future.

"Long-standing personnel policies keep this process largely hidden from the Duke community. In other words, only Brodhead and the Trustees will ever see that report, and we are left to hope that such secrecy encourages a level of candor and thoughtfulness not otherwise possible. And although average Dukies cannot know the outcome of Blue's inquiry, we still have a part to play: Members of the Duke community have a rare opportunity to submit our own comments for consideration. Given the stakes-the Trustees' decision will have a lasting effect on the integrity of our alma mater-formulating a careful and considered comment for the committee should be at the top of every Blue Devil's priority list this fall.

"Blue told Duke News he plans to post ads in The Chronicle and online at Duke Today, and that all comments must be received by Nov. 1. My own comment will read as follows:

"President Brodhead and I both joined the Duke community in 2004. Like most students, I quickly came to appreciate Brodhead's irrepressible charisma and obvious warmth of spirit when interacting with students. For that and other reasons, I delighted in Brodhead's early successes-persuading Coach K to stay, successfully negotiating the Palestine Solidarity Movement controversy that followed soon after-which were impressive. But that faith was strained in April 2006 when our community trusted Brodhead to marshal the skill and delicacy that defined his previous conduct.

"What we got instead was a series of administrative blunders-one more scandalous than the next-that have done more long-term damage to our university than the media frenzy ever could have. As we continue to move forward, I wonder at Brodhead's reluctance to acknowledge those missteps and learn from them.

"Indeed, what does it say about our university that 12 months after credible accusations surfaced that Durham police officers were disproportionately targeting Duke students, no Brodhead administration official has reassured us we're safe?

"What are we to think when four months after the University settled former lacrosse player Kyle Dowd's grade-retaliation suit, administrators have done nothing to address this serious breach of trust? And five months after the Campus Culture Initiative presented its fatally flawed report, what effort has been made to reinvigorate the once-strong student interest in confronting Duke's deep social rifts?

"Ultimately, the questions come down to this: Given Brodhead's position on the firing of Mike Pressler- Senior Vice President for Public Affairs and Government Relations Burness told reporters that although Pressler was an 'excellent coach,' it was 'essential for the team to have a change of leadership' before it could 'move forward'-why shouldn't we apply that logic to the president himself?

"Put differently, what about Brodhead's recent conduct suggests he will ever be ready and willing to confront the lacrosse case's lingering indignities? More importantly, what about his behavior suggests he would be better equipped to handle the next scandal appropriately? (Quite the opposite: Brodhead told The Chronicle last January that he would fire the blameless Coach Pressler again if he had it to do over.)

"I don't have a good answer, and I wonder how effectively Brodhead can continue asking alumni for their support or encouraging students to matriculate without one. Brodhead has been so beset at Duke that we have hardly had time to see why he was so beloved at Yale. That's why I hope to find a reason why his departure isn't 'highly appropriate' in the very near future.

"Those are my thoughts. You can direct yours to pres-review@duke.edu."

Even a senior takes a big risk by criticizing Mr. Brodhead at politically correct Duke, home of the 88ers, so Ms. Butler's column is commendable. But any hope for "find[ing] a reason why his departure isn't 'highly appropriate' in the very near future" must be subordinated to the best interests of Duke.

I find alarming the emphasis on Mr. Brodhead being charming. It does not suffice, and investigation shows that Mr. Brodhead is not really nice.

Ms. Butler's reference to "administrative blunders-one more scandalous than the next" confuses rather than clarifies.

The dictionary explains: "BLUNDER regularly imputes stupidity or ignorance as a cause and connotes some degree of blame."

Scandal, on the other hand, is defined as "loss of or damage to reputation caused by actual or apparent violation of morality or propriety."

Until Proven Innocent, by Stuart Taylor, Jr. and KC Johnson, showed that Mr. Brodhead's failure was a failure of character, not competence. He was cowardly, not clumsy.

See Newsweek 10 September 2007 on Mr. Brodhead's "Rush to Judgment" and this accusation: "Brodhead and Nifong had an almost willful disregard for the facts" and The Economist (Sept. 15, 2007, page 46) stating that Mr, Brodhead did "little, if anything, to defend the lacrosse players or to criticize the faculty [at Duke] for its lynching mob mentality" in rushing to judgement of the accused in disregard of the facts.

A polite but devastating expose by Professor Emeritus Hershel Parker of Mr. Brodhead's pretensions to scholarship has been printed in a highly respected academic journal, Nineteenth-Century Literature, Vol. 62 (June 2007), pp. 29-47.

See also "RICHARD BRODHEAD TARGETED HERSHEL PARKER BEFORE LACROSSE PLAYERS" (http://www.renewamerica.us/columns/gaynor/070607).

Not convinced.

For the James Van de Velde ordeal, read American Enterprise Institute's resident scholar Michael Rubin's "Forget the Facts: Duke's president has a history of allowing public relations to trump principle":

"An exotic dancer’s accusation that Duke University lacrosse players raped her at a March 14 off-campus party continues to polarize Durham, Raleigh, and the Duke community. Those accused were white; the victim was black. Citing the racial overtones, both Jesse Jackson and Al Sharpton joined the fray. For several days, protests rocked the Durham campus. On March 25, Duke University President Richard Brodhead issued a statement declaring, 'Physical coercion and sexual assault are unacceptable in any setting and have no place at Duke.' Of course, he issued the caveat, 'People are presumed innocent until proven guilty,' but on campuses today, such presumption is secondary. On April 5, Brodhead canceled the lacrosse team’s season and promised an investigation of the culture of college athletes as well as Duke’s own response. The lacrosse coach resigned.

"Months later, more is known about the incident. While District Attorney Mike Nifong is pressing on with charges of rape and related accusations against three lacrosse players, his case is unraveling. Photos, witnesses, alibis, inconclusive DNA evidence, and even passed polygraphs make his case increasingly tenuous.

"Unfortunately, it is not the first time that Brodhead has allowed public relations to trump principle. Prior to assuming the presidency of Duke, Brodhead was dean of Yale College. He was a popular teacher and, at least for the first half of his tenure as dean, a well-liked administrator as well. Then tragedy struck. On December 4, 1998, senior Suzanne Jovin was found stabbed to death and left at an intersection in a neighborhood adjacent to the Yale campus which housed many Yale professors and graduate students.

"Many universities are shy about adverse publicity. At Yale, it’s an obsession. My freshman year, lacrosse player Christian Prince was shot and killed on the steps of a church, a couple dozen yards from a student dormitory. He was white; his alleged assailant was black. It was Yale’s worst nightmare. Parents and applicants peppered admissions officers and tour guides with questions about New Haven safety. The Damocles’ sword of incitement and town-gown racial tension hung over Yale’s administrators.

"When Jovin was murdered, justice took a backseat to damage control. Within days New Haven police and Yale officials publicly fingered political scientist James Van de Velde, Jovin’s senior essay adviser. He was a star lecturer and had been a residential college dean. He was also a former White House appointee under George H. W. Bush and a member of the U.S. Naval Intelligence Reserves. Most Yale professors lean to the left of the student body; few in the political-science and international-relations departments have real-world experience. Van de Velde was the subject of personal jealousy and political animosity. Many faculty members—including Brodhead—looked askance at his desire to emphasize practical policymaking over theory. Some questioned, for example, his willingness to help Jovin write—in 1998—about the threat posed by Osama bin Laden to the U.S. to be unscholarly. From an academic point-of-view, Van de Velde was a black sheep.

"Yale administrators did not care that there was neither evidence nor motive linking Van de Velde to Jovin. Her body had been found a half-mile from his house. Just as at Duke, Brodhead spoke eloquently about the principles of due process, but moved to subvert it. Citing the New Haven Police Department’s naming of Van de Velde among 'a pool of suspects,' Brodhead cancelled Van de Velde’s spring-term lecture, explaining that 'the cancellation of the course doesn’t follow from a judgment or a prejudgment of his hypothetical involvement in the Jovin case.' As at Duke, Brodhead insisted that due process would prevail. Despite Van de Velde’s stellar student reviews and distinguished record, Brodhead then let his contract lapse. Van de Velde left New Haven, his career in shambles.

"Brodhead’s willingness to offer up a sacrificial lamb undercut justice in other ways. Three days after the murder, New Haven police spoke to Van de Velde, but declined his offers to let them search his home, take a DNA sample, or take a polygraph exam (they did dust his car for fingerprints; their findings provided no link).

"They did find Jovin’s fingerprints on a plastic soda bottle found at the crime scene. The soda bottle also had someone else’s fingerprints—not Van de Velde’s. But, having a suspect, why process evidence? The Fresca bottle was crucial. She did not have the bottle when last seen alive on the main campus by a fellow student. That was a half hour before she was found dying almost two miles away. That particular brand of soda was sold in only one store on campus. By the time the police visited it—months later—that store’s surveillance tape had been erased. Nevertheless, her likely presence there turned the half-hour timeline upside-down, and raised the probability that her attacker(s) had forced her into a vehicle, attacked her, and then dumped her—not the type of news Yale parents want to hear. Jovin may also have fought off her attacker. Subsequent tests of material taken from beneath her fingernails revealed DNA that did not match Van de Velde’s, that of her boyfriend, any other friend or acquaintance, or any emergency worker who tried to save her. Neither Yale nor the New Haven police have explained why it took two years to test the scrapings. Nor have they explained why they ignored eyewitness accounts of a tan or brown van seen parked at the crime scene at the time of the crime. Van de Velde drove a red Jeep Wrangler. Brodhead has never apologized. In March 2000, a Yale spokesman dismissed press inquiries saying that more attention to the case 'can only hurt Yale' (he would later deny he said it). Public relations trumps justice. Today, Jovin’s murder remains unsolved.

"Leadership is not always easy, but it is incumbent upon university presidents to set an example. When university presidents act on principle, they can be subject to withering criticism and attack. The right path is not always easy. If Brodhead recognizes his error in the Jovin case, he should apologize to Van de Velde, its other victim. That he repeats his mistakes—at Yale canceling a class; at Duke, a lacrosse season—does his leadership a disservice. Although just yesterday he agreed to allow a 'probationary' reinstatement of the lacrosse team, at Duke, he has affirmed those who, with accusations of racism and adherence to political correctness, demanded premature action. He has treated the accused cavalierly. Justice should take its course. Brodhead need not act until the charges are dismissed or a verdict returned. But, if then, it transpires that he has once again tarred the innocent, he can prove his leadership with an apology or a resignation."

The apology took much too long.

There has not been a resignation.

The apology obviously is a tactic (or else Mr. Brodhead would have written to the players instead of apologized in the way he did).

Duke definitely needs another president and the sooner, the better.

After Mr. Brodhead finally issued his grudging apology of sorts, Ms. Butler wrote a follow up piece titled "Apologize this: with all deliberate speed."

Ms. Butler:

"Watching our president's apology to lacrosse players last Saturday, I caught a glimpse of the old Dick Brodhead-the caring and courageous leader whose agile mind and steadfast integrity once inspired this campus.

"It couldn't have been easy for a lifelong educator like Brodhead to acknowledge he 'may have helped create the impression that we did not care about our students' and that he caused the families of the accused 'to feel abandoned when they most needed support.' Equally commendable was our president's admission that he could have done more to 'be clear that [Duke] demanded fair treatment for its students' and to ensure 'ill-judged and divisive' voices on campus did not appear to speak for the University as a whole.

"One apology does not dismiss Brodhead's many failures over the past 18 months. But it does live up to one of the highest ideals of this University-namely, a willingness to admit our mistakes and learn from them. For that, Brodhead deserves praise.

"***

"....however heartfelt Brodhead's words may have been, his 15-minute apology (misleadingly billed as 'Reflections by President Brodhead' and sandwiched between long panel sessions like a glorified bathroom break) was tainted by the impromptu and inappropriate venue in which he read it. Indeed, if Brodhead has, as Burness told The Chronicle, been 'seeking an opportunity to make such a statement for some time,' it's telling that he refused to read these comments at a more significant, inclusive event, like last week's Founders' Day. Or the upcoming State of the University address.

"Moreover, given that Brodhead says he regrets his failure to 'reach out' to lacrosse families in Spring 2006, the decision to apologize before an audience of lawyers and journalists-and not, say, the people he actually wronged-is all but inexplicable.

"So is his timing. There's no question that Brodhead should have released this statement at least six months ago, as these words could have saved us all considerable grief. It's also clear that Brodhead's decision to apologize was connected to the Board of Trustees meeting taking place on campus; he is undergoing a trustee-sponsored performance review at the moment and several board members were present for his apology. It's a safe bet that impending lawsuits, alumni dissatisfaction and the need for closure also contributed in some way to the decision to apologize now.

"But speculating at these secondary motives is ultimately less important than the question of what comes next. In his speech, Brodhead promised his administrative staff will be 'going over all our procedures to see what we can learn from our experience.' Attempting to 'work through these difficulties and see that their lessons are learned' Duke will 'be hosting a national conference of educators, lawyers and student affairs leaders to discuss best practices in this important field.' I will continue to hope that this latest set of committees meets [are] more success than other Brodhead-generated bodies like the Campus Culture Initiative.

"But I will also continue to search for a genuine display of good faith on Brodhead's part. If Brodhead really wanted to 'forget' about the lacrosse scandal, he could start by proving to us that Duke's settlements with four ex-players and former men's lacrosse coach Mike Pressler were equitable (both for Duke and for them). He could take action against faculty members accused of discriminating against lacrosse players. Or he could have other high-ranking officials issue similar apologies for their role in the debacle. Such actions would start us down that road.

"Brodhead's tenure has long juxtaposed admirable intentions against incompetent execution, a pattern that was reinforced by the flaws in this apology. Having caught a glimpse of the pre-lacrosse Brodhead I knew and respected last Saturday, I'm inclined to believe our president is genuinely interested in reform. I wish him the best. Others are more skeptical.

"Yet I can't deny that nothing about Brodhead's recent performance rebuts former Duke basketball God and ESPN analyst Jay Bilas' observation that 'While Dick Brodhead is a terrific person and would make a wonderful head of the English department, he has demonstrated his ineffectiveness and his inability to lead, especially in a crisis.'"

Ms. Butler's attempt to be both hopeful and realistic is admirable, but both Ms. Butler and Mr. Bilas are mistaken about Mr. Brodhead being "a terrific person," as demonstrated by his performances as a Yale dean and a book reviewer as well as his performance during the ordeal generally known as the Duke lacrosse case.

For Duke to move on, Mr. Brodhead must be gone.

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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