Monday, August 4, 2008

My 15 minutes, part 2

December, 1998:

(Again, this is a tale (part of a much larger saga) about corrupt politicians and corrupt faculty.)

During yesterday’s episode, our hero (moi), the author of a satirical newsletter (Dissent) that criticized Irvine Valley College President Mathur, our district’s corrupt union, and the district trustee board majority, was informed that, via distribution of said newsletter, he was violating the district’s “workplace violence” and it’s “anti-discrimination” policies. Further, he was ordered to receive anger management counseling!

This was communicated to me in letter and in person by Chancellor Cedric Sampson, but the material and ideas behind all of this came from IVC’s president, Raghu Mathur—who, of course, was the board majority’s darling toady.

By then, despite his staunch Republicanism, Raghu already had a long history of playin’ the “race” card, when convenient. At various times, dating back to long before my entrance into district politics, Mathur claimed to receive threatening and racist email, voicemail, and snail mail. (It is worth noting, however, that, during a 1999 deposition, he acknowledged his inability to document any of these alleged “threats.” I’m certain that he never received a one.)

The notion that I was tormenting Christians stemmed from Mathur and Co.’s amazing ignorance. When later deposed, Mathur and Sampson acknowledged unfamiliarity with Pat Robertson’s right-wing political organization “Christian Coalition.” So, since I have never criticized Christians or Christianity (in the newsletters or anywhere else), I could only surmise that the Ignorami Twins had mistaken Dissent’s one or two snide references to this right-wing political organization for a criticism of Christianity and Christians.

My so-called racist term for Mathur was “Mr. Goo,” which, according to me, was an allusion to the cartoon character Mr. Magoo, but, according to Sampson, was a reference to the racist term “gook.”

Mathur hails from India where Hindi is spoken. It turns out that, in Hindi, “guh” (or “goo”) means “excrement,” a fact that, months later, district lawyers gleefully seized upon. It was news to me.

In the lawyers’ view, I guess, if you call a guy “Mr. Shit,” you’re a racist. I don’t get it.

El Ced’s (i.e., Sampson’s) disciplinary action was based specifically on six newsletter elements, the most celebrated of which appeared in a piece about a 1998 trustee candidates’ debate:

[The political debate] started with a reading of a prepared statement by [the absent Nancy] Padberg in which she offered the usual bland campaign promises … Padberg also spoke—er, wrote—of the need to bridge the “gap” between the warring sides in the district. Evidently, she believes that the sides can come together and be pals again—perhaps by means of a carefully planned Halloween party. I don’t think so. I, for one, have etched the name of [union president] Sherry “Realpolitik” Miller-White and others of her ilk on my permanent shit list, a two-ton slate of polished granite, which I hope someday to drop on Raghu Mathur’s head. (Dissent, 11/2/98)

I figured that was funny, not threatening. Another element was some laughably lurid “crime fiction” artwork, depicting a hatchet murderer and sporting the words: “Crime: Tales of the Back Door Gooster”—i.e., tales of Mathur’s crimes. Another was the acronym MAIM (“Mathur-Milosevic Academic Integrity Matrix”), used by Dissent contributor Red Emma to liken Mathur to the Yugoslavian dictator. Yet another was a still from an old science-fiction movie concerning “downsizers.” This, said Ced, was evidence of my “obsession with weaponry.”

The Chancellor ordered me to meet with him in his office, where he informed me of my “violations.” (The letters were already in my file, contrary to district policy.)

After the meeting, my then-lawyer, Bill S., who had accompanied me, was stunned by El Ced’s stupidity and unreasonableness. Bill wasn’t sure what I should do. He looked at me and asked, “Would you be willing to go to the counselor?” I looked skeptical. He added: “Don’t be buyin’ a Ferrari or anything. Save your money.”

So I got help from Carol Sobel, a well-known Santa Monica-based First Amendment attorney (suggested by Rebel Girl). Carol and I immediately sued the Chancellor on First Amendment grounds. I alerted the media, initiating yet another PR nightmare for the Board Majority, which now comprised Frogue, Williams, Fortune, Wagner, and Padberg. (Get this: our corrupt union had gotten Wagner and Padberg elected [in ‘98], despite W&P’s membership in a group that had written that year’s union-busting proposition! No, I’m not making this up.)

Probably, the Dark Side expected me just to soften Dissent. In truth, a week or so before I received the letter, I had told friends that I was abandoning the newsletter, not out of fear, but out of a sense of the unseemliness of assuming personal risks when my colleagues, judging by their persistent silence and inaction, were, with a few exceptions, unwilling to assume even the slightest risk in combating the Dark Side. I found a towel and threw it in.

But now I was a First Amendment poster boy. The Dissent continued. There was no turning back.

Our strategy: to win a “summary judgment.” Essentially, you win a summary judgment when the judge thinks a trial is unnecessary cuz your opponents have bupkis.

I suppose the district just expected me to cave, ‘cause, when we sued them, they seemed to recognize that they had nothing, and so the district’s lawyers commenced sniffing around for anything they could find. Using declarations solicited from Raghu’s unsavory Old Guard and classified allies, the district concocted a case for my being the district bully, the cause of all recent districtular difficulties, including the Accrediting warning.

There was no one who believed these things. The district was just playing hard ball.

The flim-flam flopped. In March of ‘99, Federal Judge Nora Manella, calling the Chancellor’s action against me “Orwellian,” issued a preliminary injunction, declaring the six newsletter items to be “protected speech” and enjoining the district from wielding the two policies to restrict speech and from enforcing the counseling order.

Manella next set to work on her ruling regarding the summary judgment.

The case was then handed off to Federal Judge Gary Feess (of subsequent DNC and Ramparts fame), who, finally, in October of ‘99, granted the summary judgment in my favor, arguing that my speech was “protected” and that the counseling order was improper. In Feess’ view, both district policies were unconstitutional “as applied,” but the workplace violence policy was also unconstitutional on its face (i.e., it was intrinsically unconstitutional). We had not expected—and, frankly, did not need—the latter “facial” ruling.

In court, Feess ridiculed Ced’s “threat” malarkey. “No reasonable person,” declared Feess, “could have concluded that [Bauer’s] written words … constituted a serious expression of an intent to harm or assault.” He especially derided Ced and Goo’s granite slab worries.

According to Feess, it was “hard to understand what administration was thinking” when they took the action against me. He opined that Mathur’s direction to me (in an evaluation) to “make things nicer” seemed to him to be a possible violation of the First Amendment all by itself. “It’s a college campus.” If you can’t “speak your mind” there, he asked, then where?

Contrary to the district’s lawyers, said Feess, there was no evidence that I was responsible for the district’s problems.

In response, the district’s lawyer, David Larsen, insisted that some faculty (Sherry Miller-White, et al.) feared voicing their opinions because of me, but Feess judged those fears to be “beyond reason.”

“But,” said Larsen, “this is an individual who has been involved in face-to-face threats”! He was referring to the hilarious and hysterical Old Guard declarations, which were mostly fabricated, partly paranoia.

Feess wasn’t buying it. Said he, “That was never a basis which was given in 1998 and that is an after-the-fact attempt to shore up what was a plainly inadequate basis for the discipline.” He added:

I understand that a lot of people would like to do business behind closed doors, that they would like to make decisions that they don’t have to explain, that they would like to come to conclusions and judgments and issue policy without having anyone present to listen and hear and to understand and therefore to make rational, powerful, criticisms of them. That’s just too bad under our system…And if people are afraid of going to meetings and speaking up because … they’re going to be the subject of criticism in a publication, that’s…just life under the First Amendment… I just think this is a case where that concept, a legitimate concept [“workplace violence”], is being stretched for the purpose of taking a vigorous critic of the administration and the board of trustees and trying to keep [him] quiet.

Carol was awarded $127,00.

Next thing I knew, the Board filed an appeal, which meant, among other things, that Carol wouldn’t be getting paid any time soon—and the letters would remain in my file for the time being. (These letters are crucial to any firing action.)

A year and a half passed. The appellate hearing—at the 4th Court of Appeals, in Pasadena, with Rymer, Hawkins, and Gould presiding—finally occurred in May of 2001. The judges heard oral arguments; they then conferred and produced their opinion.

The hearing was frustrating. Larsen, evidently driven to desperation by the poverty of his case, distorted and invented facts.

The discussion largely focused on the constitutional status of the district’s workplace violence policy in particular, which, again, Feess judged to be unconstitutional, not only “as applied,” but facially. Right away, Judge Rymer objected to the vagueness and oddness of the policy insofar as it referred to “violence overtones.” On the other hand, she could not see, she said, how the policy was unconstitutional on its face: why not just delete the problematic phrase?

Larsen struggled to defend the relevance of the district’s highly convenient after-the-fact declarations. He argued that the six elements needed to be viewed “in context”—namely, my angry and violent conduct, as revealed in Woody and Glenn’s [laughable] declarations and Larsen’s impromptu courtroom fabrications. I had caused district employees—Sherry—to be “very frightened,” said Larsen. (For what it’s worth, that’s just not so. And, today, I don’t think you’d be able to scrape up anybody who would testify to this.)

Carol, always at her best in such settings, noted that, to qualify as truly threatening, an instance of speech must be unequivocal and immediate, threatwise. My speech, she argued, did not come “within a mile” of that standard. Concerning the six elements, the judges seemed to agree. But, asked Rymer, hadn’t I actually gone to individuals and threatened them?

“What are you referring to?” responded Carol. Carol knew that Larsen was distorting and exaggerating what appeared in the briefs and declarations.

Rymer seemed willing to concede that my expressions had been satirical and not violent. But, she asked, how can the whole “workplace violence” policy be unconstitutional on its face? “I just don’t get it,” she said.

Judge Gould spoke; he seemed to have his doubts even about the policy’s unconstitutionality as applied. Maybe the “college” needs its day in court, he said.

Things seemed to be going badly, I thought, but then Judge Hawkins, who had said nothing, ended the hearing by asking Larsen a series of revealing questions:

Were any of these alleged threatening incidents cited in the original disciplinary actions?

No, admitted Larsen, but they were “the backdrop” of the action.

“Really?” asked Hawkins. No references to these incidents were made in the disciplinary letters?

No, admitted Larsen, but, he added, you’ve got to consider “context.”

Hawkins then asked if I had done anything physically to anyone.

Well, no.

Had I brought a weapon to school?


Did I have any history of violence, of shoving, anything like that?


Did I have any history of arrests or confrontations?


The judges issued their judgment in August. Hawkins, representing Rymer and himself (i.e., a majority), wrote the ruling.

Essentially, I prevailed: Judge Feess’ judgments were upheld, with one exception: though the district’s policies are both unconstitutional as applied, in the appellate court’s judgment, the district’s workplace violence policy is facially unconstitutional only in part. Wrote the court:

[Bauer’s] writings and illustrations were prepared during a traumatic time for IVC and the District…The Accrediting Commission attributed the turmoil partially to OC’s financial troubles and primarily to a four-to-three split on the District’s Board of Trustees… [Bauer] voiced his disapproval in a campus newspaper called “Dissent.”….

We agree with [Feess’] analysis that the policies were unconstitutionally applied to Bauer because “though at times adolescent, insulting, crude and uncivil, [Hey!] Bauer’s publication focuses directly on issues of public interest and importance.” We also agree with [Feess] that Bauer’s statements were not “true threats” and that the District’s rights as an employer were not impermissibly burdened by Bauer’s expression….

We agree with [Feess’] holding that although Bauer’s writings have some violent content, they “are hyperbole of the sort found in non-mainstream political invective and in context…are patently not true threats.”

Within the larger context of the turbulent IVC campus community, the conduct alleged by Sampson does not transform Bauer’s expression into “true threats.” We agree with [Feess] that there is simply no way a reasonable reader would have construed [Bauer’s] writings and illustrations to be “true threats,” even if that reader were aware of all of the other conduct alleged by Sampson [my emphasis]….

In light of the Accrediting Commission’s report…, it can hardly be said that Bauer was the source of the disharmony on IVC’s campus. IVC and the District were going through a contentious period—Bauer’s commentary on these troubles may have raised awareness, but the expression certainly did not cause them…[A]nyone who has spent time on college campuses knows that the vigorous exchange of ideas and resulting tension between an administration and its faculty is as much a part of college life as homecoming and final exams….

[Judge Feess] correctly ruled that [the district’s workplace violence policy] is unconstitutional on its face because it prohibits speech with violent ‘overtones’ that falls short of being threatening. However, the…court erred in holding that the entire workplace violence policy is facially unconstitutional…The…court correctly ruled that the Board’s policies on racial discrimination…and workplace violence are unconstitutional as applied to Bauer.

Carol was awarded about $200,000 in fees, to be paid by the district. No doubt the district has already spent much more than that for their unsuccessful defense.

The press took some interest in the victory:

The Times, August 16, 2001:
College District Loses Appeal in Discipline Case

A federal appeals court Wednesday upheld a lower court decision that the South Orange County Community College District chancellor acted unconstitutionally when he disciplined a professor for criticizing the administration in satirical newsletters.

“It’s a victory for free speech and for those willing to report honestly about the incompetence and misbehavior of people in positions of power,” said philosophy professor Roy Bauer. “I certainly hope the chancellor and the board learned a lesson, but judging on past behavior . . . they will continue to run the district into the ground.”

But the court ruled that U.S. District Judge Gary Fees went too far in ruling the community college district’s workplace violence policy unconstitutional. Bauer sued after Chancellor Cedric Sampson in December 1998 ordered him to seek anger management counseling and placed a disciplinary letter in his file. Sampson also said Bauer violated the district’s antidiscrimination policy.

Bauer sued, and Fees ruled in his favor in October 1999. He awarded Bauer’s attorney, Carol Sobel, $127,000 in fees and costs. With interest and the fees from the appeal, that figure has grown to around $200,000, Sobel said.

David Larsen, the district’s attorney, said the board of trustees will have to decide whether to appeal the case to the U.S. Supreme Court.

I don’t think part 3 will be necessary. Maybe a quick wrap-up. We prevailed, of course. Carol got paid and I saved my job. The Dissent continued, went on hiatus for a while, and then returned as Dissent the Blog, again, with Rebel Girl.

Then there was the time that Mathur sued me! —Well, that can wait.

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