[The series Lawsuit Breakdown will attempt to highlight the main points of the lawsuit filed on 12/18/07 by attorneys for Ryan McFayden, Matt Wilson and Breck Archer with a focus on Duke University's involvement in the scandal.]
In what is one of the more surprising revelations in this lawsuit, Ekstrand's lawsuit introduces allegations that the Lacrosse Ad Hoc Review Committee's report (Coleman report), long recognized as a "stunning vindication" (link) of the lacrosse team from every accusation of significance about the lacrosse team's culture, was based on deliberately fraudulent statistics. It should be noted that the lawsuit does not fault James Coleman or others on the committee for the conclusions of the report as the suit seems to believe the committee was mislead by Director of Judicial Affairs Stephen Bryan.
The significance of this allegation cannot be underestimated. Of all the assertions of horrific misbehavior - racism, violence, misogyny and of course rape - hurled at the lacrosse players publicly and privately by both faculty and administrators, the only accusations that have held any water amounted to minor, alcohol related irresponsibility and inconsiderateness. These kinds of infractions were so insignificant that the University did not even keep statistics of them until October 2004. Now it seems even those allegations were exaggerated by Duke nearly to the point of fabrication.
This section of the lawsuit is highly intriguing and seems well substantiated. It is worth reading in full to view the entirety of Ekstrand's substantiation. In summary the most incriminating assertion of fact is that Dean Bryan provided to the committee phony data from before October 2004. In October 2004, "the University began systematically recording data of incidents of all alcohol policy violations involving students" (p. 254). Furthermore, "it was Bryan's arbitrary enforcement of the alcohol policy that prompted the Campus Committee's 2004 Initiative" (p. 254). Yet inexplicably "Bryan concealed the existence" (p. 255) of the data collected systematically after October 2004 and "provided the Committee with unreliable and grossly misleading data sets [from before Oct. 2004] in order to induce the Committee to conclude that the lacrosse team members' conduct was out of step with that of comparison groups" (p. 255).
As brief examples of their absurdity, Bryan's statistics, as reported by the Ad Hoc Committee, held lacrosse players accountable for "50% of noise violations and 33% of open container violations" (p. 256) based on single instances of such violations by lacrosse players. If the idea that there were fewer than 5 such violations combined by Duke students in any significant time frame isn't in itself preposterous, Ekstrand notes that the University was well aware of a well publicized incident in the fall of 2006 where 7 students were given 7 noise violations and 7 open container violations in one night alone.
The report was slanted by absurd statistics to begin with, but even more relevant is the overtly slanted way in which the report has been used by administrators. Though Ekstrand does not mention it in the lawsuit, Brodhead, speaking of the report on June 5, asserted, “though it did not confirm the worst allegations against this team, [it] documents a history of irresponsible conduct that this university cannot allow to continue” (Until Proven Innocent p. 237).
Perhaps most telling of all is that the report, which was scheduled ("forced," claims Ekstrand) to present one day before the primary election for Nifong, was given to Nifong in advance but not to the players or their counsel: "Defendant Burness delivered an advance copy of the Ad Hoc Committee Report to the City of Durham Defendants so they could prepare statements for the press conferences. Burness did not send a copy of the Ad Hoc Report - in advance or after its release - to the Plaintiffs, their teammates or their counsel" (p. 260). An oversight? Perhaps. The problem for Burness and the rest of the Duke Administration is that it fits into a rather telling pattern of efforts by Duke not only to aid Nifong in his attempts to railroad Duke Students, but to assist in his reelection. These efforts by the Duke Administration are continued in shocking fashion before the general election in the fall of 2006, explained in the next segment of Lawsuit Breakdown.
"The myth of the Plaintiffs and their teammates as out-of-control, aberrant, abusers of alcohol, with a history of 'deplorable' behavior persists up to the present day" (p. 260), incited and continuously perpetuated by Brodhead and other Duke administrators and faculty.