Nifong & Duke's FERPA Fake

If you haven't already done so, please read this JinC post: “Duke FERPA Fakes.” It provides necessary background information for what follows.

Now excerpts from a letter University of Maryland Law School Professor Jason Trumpbour, a graduate of Duke Law School, posted at the Friends of Duke University main page:

[…] I want to call attention to some disturbing information brought to light by the folks at LieStoppers concerning Duke.

If you will recall, last May Mike Nifong requested the court issue a subpoena to Duke University to provide records of card key activity by all members of the Duke lacrosse team and also provide their home addresses.

This information is protected by a federal statute called the Family Educational Right to Privacy Act and cannot be disclosed without a showing of need. Nifong’s request was patently overbroad, but Duke University refused to challenge it.

Instead, Duke told the lacrosse players that it would comply with the request and that, if they did not like it, they could do something about it themselves. Attorneys for the lacrosse players challenged the request on their own and a hearing was held in July.

The judge then handling the case, Kenneth Titus denied the request.

It turns out that Nifong’s request was a complete fraud on the court because, as LieSoppers discovered, Duke University had already turned these records over to police months earlier in March, evidently in violation of FERPA. (emphasis added)

This new information is disturbing as it relates to Duke on several levels.

First, the Duke administration chose to supply personal information about its students to a manifestly unethical and corrupt district attorney in connection with a politically motivated investigation.

Do not be fooled by the administration’s story that they did not know what to believe or that they instinctively trust public officials. Duke had been told by the police that the case was bogus and the file would likely be closed after the police had interviewed that alleged victim. […]

Second, the principle beneficiary of this bit of theater would not have been Mike Nifong. He already had indictments against three defendants and he could have subpoenaed their records with no difficulty.

Nifong had no need to use the records of the other players at trial, because his position at that point in time was that they had been exculpated by the April 4 lineup. Nor would there have likely been any repercussions for him or the police for merely soliciting a violation of FERPA.

The real beneficiary would seem to be Duke University because it would provide a legal fig leaf to cover its apparent violation of federal law.

Worse, Nifong’s apparent willingness to cover for Duke shows that Duke, through its own misconduct, had found itself entangled in Nifong’s malicious prosecution to the point that its interests had started to overlap with those of Nifong. […]

Finally, and probably most disturbing of all, this surreptitious leak of private information occurred at a time when Duke was pretending to support the players, had encouraged them to talk to Duke officials citing a totally fictitious student/teacher privilege and had even hired a local attorney who they offered to the players in an ambiguous relationship meant to approximate that of a defense attorney.

Now we see what kind of “help” Duke was providing the players. No person truly acting in the role of defense counsel would have volunteered this information without a subpeona.

For those who insisted that [Friends of Duke University’s] criticism of the Duke administration for its lack of public support for its falsely accused students was unfair because Duke was probably concerned about its students and was probably working behind the scenes to help them, guess again. […]

There’s much more to Trumpbour’s letter before he ends with:

It is impossible to defend the administration’s motives in violating FERPA as somehow a well intentioned attempt to further the cause of justice as it understood it to be at the time. If the administration had truly been committed to justice, it would have pursed it without regard to where it might take them and which side it might be found to lay.

Yet, when the time came for speaking up for the due process rights of its students, the administration was silent and remained silent until late December.

No, there was never any commitment by the administration to seeing justice done in the lacrosse case at least through December and certainly not in March.

In the absence of such a commitment, there was only self interest and playing favorites.

A few thoughts: If you’re a justice-seeker who’s followed the Duke Hoax from the beginning, you know Trumpbour has tremendous credibility.

Like Duke Law Professor James Coleman, Trumpbour spoke out early against the travesties the now disbarred Nifong and certain DPD officers and their superiors engaged in. He was even singled out by Nifong for personal attacks, a “badge of honor” Trumpbour “earned” and I’m sure cherishes.

I hope you read Trumpbour’s entire letter here and Liestoppers’ post here.