Friday, October 29, 1999

Dissenters make OC Weekly's "best of"

From Dissent 34, 10/29/99:

From the "Best of OC" issue of OC Weekly:
1568 South Orange County Community College District rabble-rousers, whose efforts have resulted in the district’s imbecilic board of trustees being ordered by an Orange County Superior Court judge to tape-record its closed-door meetings for two years due to persistent violations of the state’s open-meeting law. Also thanks to the dissenters, an accrediting panel this year denounced the way the district’s Saddleback and Irvine Valley colleges have been governed during the past two years.
…..
1571 The most publicized South Orange County Community College District rabble-rouser, Irvine Valley College philosophy professor Roy Bauer.

1572 Besides being a constant thorn in the board’s side at public gatherings for the past few years, Bauer has churned out--with the help of anonymous correspondents--two muckraking newsletters: Dissent, which covers the district, and The Vine, which covers IVC.

1573 Besides hilariously clever clip-and-crop graphics, a recent Dissent included a mock advice column that looked as if it were penned by board president Dorothy Fortune. One not-really-Fortune response to a not-real reader: “Ours was the only community college in the nation to take the day off when President [Richard] Nixon died. Our district has a board member who thinks Israel and space monkeys killed JFK. Our board includes two members of the Christian Coalition, too.”

Monday, October 25, 1999

BAUER’S COURT VICTORY

JUDGE FEESS’ REMARKS, OCT. 25, 1999

     And if people are afraid of going to meetings and speaking up because ... they're going to be the subject of criticism in [Dissent], that's…just life under the First Amendment, as far as I can see. —Judge Feess
Below are transcripts of the final hearing in Bauer’s lawsuit against the district (and against Chancellor Cedric Sampson in particular) regarding the content of his satirical newsletters (‘Vine & Dissent).

As you can see, Bauer prevailed. Judge Feess makes clear that he views the district’s action against Bauer as an effort to stifle criticism and dissent and nothing more. According to Feess, the district "stretched" policies in order to wield them against Bauer in order to "quiet" him.

Subsequently, the district appealed. Essentially, the district lost the appeal. In the end, the district had to pay Bauer’s attorney fees (a very large chunk of money).

The district’s lawyer for this hearing was David Larsen of Rutan and Tucker.

Bauer’s lawyer was Carol Sobel (Santa Monica).

As is customary in such cases, just prior to the hearing, Judge Feess issued a “tentative” ruling. That document indicated that the district’s antidiscrimination policy, which was wielded against Bauer, was unconstitutional, not only as applied, but on its face.

During the hearing, Feess backed off of that ruling, having decided in the interim that the policy was only unconstitutional as applied (that is, it was used illegitimately to try to stifle dissent). On the other hand, he stuck to his ruling that the district’s “workplace violence” policy is unconstitutional on its face.

Bauer was accused of violating the antidiscrimination policy on the grounds that he referred to Raghu Mathur as "Mr. Goo." That phrase, said the district, was a clear allusion to the term "gook." According to Bauer, it was an allusion to the cartoon characer Mr. Magoo.

Bauer was accused of violating the workplace violence policy on the grounds that his writings--such as his hyperbolic remarks about slabs of granite--were threats of violence.

Feess seems to ridicule the notion that Bauer's writings were threats of violence.

When, during its early stages, the district's case was evidently faultering, the district sought to shore up its case by finding people--namely, Mathurians and Old Guard unionists who made the "Board majority" and Mathur presidency possible--to write declarations according to which Bauer behaved in a threatening manner. Obviously, these ad hoc declarations were unpersuasive. In fact, they were utterly ridiculous.

Glenn Roquemore, for instance, declared that, at one point, Bauer asserted that Mathur was going down the tubes and that Roquemore would "go down" with him. "You're going down," he said.

According to Roquemore, the utterance was a clear threat of violence.

CONTENT:

1. The district sought to stifle dissent
2. Bauer single-handedly threatens accreditation? Watch that slab of granite!
3. On saying, “You fucking asshole”
4. “Cease being negative!”
5. Disruption
6. Unconstitutionality
7. The policy is being “stretched”
8. Afraid of criticism? “So be it”
9. “Going postal”
10. A case of trying to quiet a “vigorous critic”


UNITED STATES OF AMERICA
CENTRAL DISTRICT OF CALIFORNIA
THE HON. GARY ALLEN FEESS, JUDGE PRESIDING

LOS ANGELES, CALIFORNIA; MONDAY, OCTOBER 25, 1999; 9:46 A.M.


1. The district sought to stifle dissent

MR. LARSEN: Good morning, Your Honor. David Larsen on behalf of Defendant Cedric Sampson.

MS. SOBEL: Good morning, Your Honor. Carol Sobel on behalf of plaintiff Roy Bauer.

THE COURT: All right. I have issued a tentative, which I take it that you folks have seen.

MR. LARSEN: Yes, Your Honor.

MS. SOBEL: Yes, Your Honor.

THE COURT: All right. I don't know that if—that given Judge Manella's decision in the preliminary injunction, my view of the case is essentially the same as hers. On reviewing the record this morning, I do have one issue in my mind that I am somewhat doubtful about upon reflection and that is the antidiscrimination policy.

In re-reading it today, I don't think it's unconstitutional on its face. I think the antidiscrimination policy doesn't give any indication on its face that it would be used for any improper purpose. I believe that it was used for an improper purpose in this case and that is to stifle dissent. But I don’t think on its face it necessarily reflects that it would ordinarily be served for an improper purpose.

As to the other one [i.e., the “workplace violence” policy], I think it is quite vague and ambiguous and covers a lot of territory which is squarely protected speech. [Hence it is unconstitutional on its face.] So that's my view. Judge Manella did not reach either one of these. I indicated I was reaching both of them and I do intend to reach both of them, but, upon reflection, I don't think 4000.5 on its face is violative.

All right. Now, counsel, Mr. Larsen, do you want to be heard?

MR. LARSEN: Yes, Your Honor. I would like to address my remarks, however, to all aspects of the tentative ruling, if I may do that.

THE COURT: Sure.

MR. LARSEN: …If you take the factors the court recognized in Rendish as to what could cause the speech to be subject to action by the employer and you apply it to this case, I think you have significant factual issues that the district is entitled to have heard by a trier of fact.

THE COURT: Well, I don't see it. I don't think that the factual record is terribly in dispute and, as I've noted, you try to add in a lot of information after the fact to sort of build up the record, but the bottom line is that he was going to be disciplined for what he wrote and what he illustrated. Or if he wasn't writing it, it was what he was editing and what was in that publication.

That publication strikes me as being so plainly protected under the First Amendment that it's hard for me to understand what the administration was thinking when they decided to make a public fight over this issue. I mean, I don't see—I just can't see what the fact disputes are. Now that the facts are all out there, I mean, who did what is known, the question is: what's the legal consequence?

2. Bauer threatens accreditation? Watch that slab of granite!

MR. LARSEN: Well, Your Honor, I think that you have to put that into context…You have to recognize that these statements on the part of [Professor Bauer] had a definite and debilitating impact on the organization, the organization building the function. For example, in 1997, November of 1997, the president specifically directed this employee to assist and participate in creating a positive environment on the campus. [Mathur, violating the faculty contract, inserted those remarks in an otherwise glowing teaching evaluation of Bauer.] He has violated that directive and, as a result of these publications, has seriously undermined the accreditation of the organization itself. In other words, if you look at Rendish, you look according to Brewster, and you look at what they looked at, you see that not only one looks to the speech but the impact of the speech. And the impact of the speech in this case, we think we've shown a significant factual record to suggest that the impact of this has been clearly disruptive of the organization. You have people that have stated they're unwilling to get involved—

THE COURT: You're talking about the speech which is in the written material?

MR. LARSEN: Correct. That's correct, Your Honor. You have Sherry White-Miller [sic] saying she won't—out of fear, she won't participate in activities.

THE COURT: And is that because she thinks that he's got a crane that he's going to take this so-called granite slab with the lift on it and actually use it? Or is it because she thinks she's going to be criticized?

MR. LARSEN: You know, I think it's because, Your Honor, she feels physically threatened for her safety. Now, the crane—

THE COURT: Wait a minute. Wait, wait, wait. If she feels physically threatened for her safety as a result of what's in this writing, aren't we saying what we're going to do is to take the most sensitive, the most fearful, most concerned person's standard—not a reasonable person's standard but the standard of the person who's most sensitive—and say, "Well, if you offend somebody and their sensitivities and they are fearful, whether or not the speech meets the threat for standard [sic] under the jurisprudence of the First Amendment,[“] that we therefore can muzzle the speaker?


MR. LARSEN: Well, Your Honor, I submit to you that, in the Lovell case down in Poway, when that student threatened the counselor, she did not have a gun on her, she did not have any way of immediately carrying out that threat.

THE COURT: That was face to face, wasn't it?

MR. LARSEN: That was face to face.

THE COURT: A face-to-face threat, not a written publication discussing issues of public concern.

MR. LARSEN: But this is an individual who has been involved in face-to-face threats. The written publications are merely an extension of those face-to-face threats.

THE COURT: 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.

MR. LARSEN: Your Honor, I think that—

THE COURT: But I think even if you take into account this so-called threat that "You're going down"—which is kind of street talk for meaning: when this administration fails, you're going with it—now, I don't think anybody necessarily would interpret, under the circumstances that they may reasonably interpret "you're going down" to mean, that Mr. Bauer was going to engage in violence.

Do you have some evidence that Mr. Bauer actually, in fact, on any occasion has assaulted anyone?

3. “You fucking asshole”

MR. LARSEN: You know, I think we submitted in declarations incidents which were fairly close. [He once told someone:] "You fucking asshole." Violent in other people's face. [This is a reference to an incident, described in a declaration by Ken Woodward, in which Bauer, upon being treated to one of Woodward’s infantile needlings, muttered, “You fucking asshole,” as he walked away.]

THE COURT: Oh, you—

MR. LARSEN: I mean, those are all—

THE COURT: Well, "You fucking asshole," if that's an assault, then the courts of the state system would be filled to overflowing for that…I've actually even heard that in the courtroom directed at somebody in a black robe.

MR. LARSEN: But, Your Honor, you have a number of individuals who have all indicated that, as a result of these statements, it impaired their ability to effectively function. So we don't just have Sherry Miller-White, but we have those against whom it was directed. We have a genuine concern.

I think that's a factual issue that needs to be put before a trier of fact so that they can weigh whether or not these people acted in a reasonable fashion, not determining as a matter of law that these people have not been reasonable. I think, given the number of people, I think given the specificities of their statements, the nature of their concerns, the context of those statements, the fact that the university or the college that needs to have the ability to manage itself in light of the threats to its accreditation, and the fact that these contribute to that fact—these are a clear insubordinate violation of a direction that was given in evaluation by the president and an attack upon the president—

4. “Cease being negative!”

THE COURT: You mean a direction of, you know, "Make things nicer"? "Make this atmosphere more harmonious"? Is that the directive that you're talking about?

MR. LARSEN: That's [it] in essence. The directive was to cease being negative and destroying the organization itself through negative comments and the very types of comments that exist here….

THE COURT: Maybe [that directive is] a First Amendment violation in and of itself, to tell [that to] a tenured professor of the college. I mean, look, this is a college campus. If people can't speak their minds on college campuses, I don't know where they can speak their minds. It is supposed to be the bastion of free speech and discussion.

Here you are attempting, and the admin—not you personally, but your client—attempts to portray the problems that exist on that campus as problems which can be funneled through their lens and laid right at Mr. Bauer's doorstep, when the record plainly won't admit of that.

This is a community that has all sorts of disruptions for all sorts of reasons and Mr. Bauer may not be behaving in the most civil fashion. He may be making jokes that some people might characterize as adolescent or whatever, but it doesn't seem to me that that's the sort of thing that he ought to be disciplined for, especially in this context. That's what's troubling to me.

MR. LARSEN: Your Honor, I think what is difficult for me to understand is, in picking up on your own word the "context," we're attempting to bring out to the court the broader basis of this context to help the court understand this is very disruptive and very debilitating.

Obviously on a summary motion, that is difficult to do when we think we raised significant issues as to what this context is. And I think that taking inferences, I think one could conclude that, given this context, this speech has been very, very disruptive to this organization to the point of impairing its ability to function. I think we can demonstrate that in a trial. I think that's what a trial in this case would be about. I think that the context is very, very important. I think the disruption is there. I think that to characterize the fears of the individuals as "beyond the pale of reason," which I think this court must do to grant a summary judgment, doesn't recognize the significance of the information that's before the court.

THE COURT: No. Well, if—if what you're talking about now is what's in writing, then, yes, it's beyond reason as a matter of law in my opinion.

MR. LARSEN: Well, you know, I just think that we obviously differ. We feel like the context is important to have, and that context creates a different result.

5. Disruption

THE COURT: Well, all right.

Mr. Larsen, I certainly understand the unhappiness with Mr. Bauer. The problem is it just seems to me that that unhappiness is not something that translates into a muzzle. But let me—

I want to ask Ms. Sobel some questions here about this. [Things are] obviously going your way to a great extent, but Mr. Larsen raises a point which I think is legitimate, and I want to hear what you have to say about it, and that is that there does become a point where disruption is such—and the Supreme Court and the Ninth Circuit have recognized that this is a balancing test.

What about the idea that maybe this is something that a jury should decide; that I should not be determining at this point?

How do you address that and how do you address the concerns that the college has with respect to the disruption issue?

MS. SOBEL: Well, Your Honor, first of all, I think that Your Honor's assessment of the evidence in this case is correct. There is no evidence of disruption at this point. To the extent that they have—and as Judge Manella found on ruling on the preliminary injunction, there was no evidence of disruption at that point and—

THE COURT: Well, let me interrupt you for a minute, so I make sure I understand what you're saying. And maybe we've been using language a little too loosely here. Maybe I have been.

I've been thinking—when I was [saying] disruption I think I was thinking turmoil. Turmoil and disruption are not necessarily the same thing. An institution can have turmoil, meaning people are running around concerned about issues, there can be vigorous debate, acrimonious debate. The question for disruption, however, is: does [the institution] continue to operate and function? Are people still going to classes? Are classes still being held and so forth?

Is that what you mean by disruption, or are you talking about something else?

MS. SOBEL: I think that's what the Ninth Circuit means by disruption in this circumstance, Your Honor. That when you have public employees who are commenting upon matters of public concern—which is all that Professor Bauer does in this instance—he reprints articles in the Orange County Weekly and the L.A. Times and all the others, goes to board meetings, reports what's in those board meetings, other members of the community also contribute articles, they comment upon union activities. It is unpleasant and it may distract people from what they're doing because they don't like to be criticized. But that can't bootstrap into the kind of disruption that is prohibitable under the First Amendment, when you're talking about public employee speech. That's all they've shown here.

Their supplemental declarations all came from these people who are the president of the union, the vice president of the union. The college can't punish Professor Bauer, even assuming what they were saying were true. Chancellor Sampson can't impose discipline on Professor Bauer for engaging in a colloquy with his union colleagues that they don't like, that the union officials don't like, and question their activities. Because then the college would run afoul, as we said, of the Labor Management Relations Act, which gives them the right to criticize them.

And that's all they've shown here: that the union people don't want to be involved in union activity. I don't believe that is true but it's irrelevant, anyway, because it isn't the operation of the college. And in this instance, they really have presented to the court absolutely not a scintilla of evidence that there is disruption. They have attempted to recharacterize the accreditation issue as something caused …solely or primarily…[by] Professor Bauer when, in fact, the accreditation report that is submitted to the court clearly states: This has been an on-going process since the mid 90's.

[There are] a lot of the factions, a lot of issues. The board of trustees, the administration, a whole variety of issues. So to blame Professor Bauer for causing the accreditation problem because he reports on the accreditation problem is really a logical fault that can't be overcome by the defendants in this case.

So I think that there may be a point at which disruption from the public employee's speech on matters of public concern could be restricted. But they don't want to hear that.

THE COURT: …The cases definitely say that it is a possibility.

I'm not sure that anybody understands exactly what the contours of that may be, but it seems to me that, you know, on one extreme you could have somebody leading sit-ins and blocking buildings and say "We're not going to allow this university to continue functioning.” In which case, I think you probably have speech which is going to come into conflict with operations, and you may very well be in a situation.

But I tend to agree with you that discomfort from criticism isn't the sort of disruptions that is the kind of thing that will allow you to overcome the First Amendment protection.

MS. SOBEL: Well, I think it's precisely what the Ninth Circuit says is important in the George case and other cases which have upheld protection from employee speech and similar context. Because the Ninth Circuit operates—and the United States Supreme Court as well operates—under the premise: who is in the better position to expose hypocrisies or contradictions of positions taken by public officials than public employees, who are able to analyze that material and have more access.

And, as the exhibits which we submitted indicate, this is a matter that has widespread interest in the entire Irvine community. This is not limited simply to this college. When one of the board of trustees…caused the Jewish Defense League to come in because of statements that were viewed as being anti-Semitic and brought in people who had ties with the Holocaust [revisionists], this was a much broader interest in the community than simply what went on in this college. [That was] one of the issues that Professor Bauer reported on.

So I think that, clearly, wherever that line is between protected and unprotected public employee speech, in this instance, I don't believe we're anywhere near it…or that the court has to draw that line in this case, because Professor Bauer's writings and statements so clearly fall on the protected side of that line.
…..

6. Unconstitutionality

MS. SOBEL: …If I could address…one issue in particular that the court raised. I want to see if I could convince the court to stay with the tentative on the unconstitutionality of the discrimination policy.

At the outset of the court's statements, the court indicated that it could find no indication that the policy was intended to be used for an improper purpose. And although we did not address that in our briefings, I would ask the court to consider the decision in Simon & Shuster, which is cited in our papers for a different purpose…I am certain that the decision in Simon & Shuster contains a discussion of the very issues that the court has raised. And that's the Son of Sam case. And the Supreme Court in that instance says that they have never required a showing of an impermissible intent in order to find that a statute or regulation or an action by a government official violates the First Amendment.

So I believe the precise language of the court is that intent, an impermissible intent, is not the sine qua non of a First Amendment violation.

THE COURT: All right. Again, maybe I wasn't as precise as I should have been in discussing this, but if I look at the policy itself on its face, [it] seems to address a matter of legitimate concern in a proper way. In that respect, it's no different than other policy/regulation/statute, what-have-you, which may prohibit certain conduct legitimately and which can illegitimately be used for purposes to, say, curb speech. In which case, the analysis that the courts have always gone through is to say, "We'll look at it as [unconstitutional as] applied and not necessarily on its face."

And I'm just looking at the policy itself and trying to figure out as I read it again for the third or fourth time to see where in the policy is it that there is an impermissible objective separate and apart from the intent? Isn't the objective of the policy an appropriate one? And isn't the fact that it is such that it shouldn't be—shouldn’t be just stricken on its face as being vague or overbroad?

MS. SOBEL: Well, I believe the first question Your Honor asked is readily answered in the affirmative: Yes, the objective of the policy is a proper one. The next question then is: If it is a proper objective, if there is a legitimate substantial significant governmental interest, is the policy itself narrowly drawn to further that interest, and does it allow for ample alternatives of speech?

…[W]hat you get to first is the narrow legality. That's where this particular policy fails. The terms of it are vague. It's fine to say, "We prohibit all discrimination and harassment." But as Your Honor knows, there is an extraordinary body of law now on what is prohibitive discrimination and harassment.

An abundance of Supreme Court decisions, and the last Supreme Court decision, the Faragher decision and the Ellsworth and Burlington Industries decisions, all said that "We're not going to create a general civility code out there. We can't create a general civility code."

7. The policy is being “stretched”

THE COURT: But this isn't like those cases. [The district’s antidiscrimination] policy is much shorter, it's much more focused. And, in fact, [it] appears to me to be completely inapplicable on the facts of this case. It seems to me to have been stretched and flip-flopped. I mean, this talks about people who are in positions of power—subordinates, students who are applying, disabled people who are seeking access—where someone who has the power is denying them of some right that they have by virtue of the power position that they've got. And here you have a situation where part of the discrimination—at least that's alleged—is that they say that Mr. Bauer's discriminating against the president…And it may very well be that Mr. Bauer—I mean, it's possible that he's making bigoted remarks. I'm not saying yes/no; he may be. Making a bigoted remark isn't discrimination necessarily. Or even harassment. Especially from a subordinate to a superior.

MS. SOBEL: The other thing this policy was used for, Your Honor, was to say that he was creating a hostile work environment for people of the "Christian religious experience,” whatever that may be. The problem with the policy—Your Honor is correct—[is that] it is short. And Your Honor is correct, the objective of it is a good one and a proper one. But what is lacking in this policy, what is woefully lacking in this policy, is any expansion, any regulations, anything that would tell the person sitting down to use this policy how and where to apply it—in what circumstances…You know, what did somebody have to have as a complaint of discrimination before this policy becomes applicable.

And that's exactly what the court looked at in the Dambrot decision which we cited to the court when it struck down the University of Michigan policy or the Central Michigan University policy. There was no indication there that the discrimination had to be intentional. It reached unintentional acts. We don't punish speech that is unintentional in this context necessarily.

There was no mechanism by which to enforce the policy. Whoever was in charge of enforcing it on that day got to enforce it as he or she wanted to.

There is a total unrestricted delegation of power in this policy. And those are the hallmarks of a regulation that violates the First Amendment on vagueness grounds. And it is overbroad because it fails to distinguish between discrimination that is not punishable under Title 7 or the First Amendment and other speech that might be offensive to somebody on the basis of their race or their natural origin or their gender, or any of the prohibitive categories here, but still is not punishable.

And so that is the failure of this policy. And it is a classic First Amendment failure for the same reasons that the court finds the workplace violence policy vague and overbroad, we believe it should find the discrimination policy vague and overbroad as well.

THE COURT: Well, the interesting difference between the policies is that the discrimination harassment policy is short, focused, to the point, and contains legal references so that a person who was applying [it] also has some reference to legal sources that they could go to to assist them in determining how to interpret it.

MS. SOBEL: But that's only one question. The other question is how does a person who is potentially subject to this policy know what is prohibited? Are they required to go to all of those legal resources first and try to figure out what current case law is? I doubt that, Your Honor. Particularly because it's a group of students.

And I would cite to Your Honor a case that I do not have the drop cite for but this issue was discussed by the Ninth Circuit in a case called United States versus Wunsch, 84 F.3rd 1110, and it's a Ninth Circuit 1995 decision, and that was a challenge to a statute in the state bar that—and a disciplinary action. I was counsel for the attorney in that case.

But the issue was that the state bar came in and said, "Look, any reasonable attorney is going to know what is prohibitive conduct under this statute because they read the case law, they know the decisions, it's out there." And the Ninth Circuit said, "No, we don't—we don't require everybody to know every case in order to figure out what is prohibited.” If you write a regulation and it's short and sweet and to the point, it is still unconstitutional if it requires people to go to some secondary source to try to figure out what's going to get them in trouble.

THE COURT: Well, all right. I understand your point. I think it's an argument that may prove too much. I mean, I think there's so many regulations that exist. I mean, the world is full of regulations that are—I don't know.

MS. SOBEL: I just haven't challenged those yet.
…..
THE COURT: Well, and you're not going to be able to challenge them all because there's no way—your argument…in some way it's a very old fashioned argument. That language can be necessarily made extremely clear and that it's never a problem. If you really want to work hard enough at it, you can make your regulation so specific and so clear that no one would have any doubt as to what is involved. And I just don't think [that’s possible].

I've heard all I want to hear about that, Ms. Sobel.
…..
MS. SOBEL: Thank you, Your Honor.

8. Afraid of criticism? “So be it”

THE COURT: Mr. Larsen, do you have anything you want to say in reply? Briefly.

MR. LARSEN: Yes, Your Honor. I would like to first off indicate that I think the declarations have substantiated that fact that people are not participating in management meetings because of this particular speech…what you really have here now is something much more effective than a sit-in. If you use fear in keeping people from coming and being there through a form of intimidation, you don't need a sit-in.

THE COURT: Well, if people don't want to come because when they come and speak, they're going to be criticized, so be it. That is not a basis for keeping somebody quiet. 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. You cannot avoid that, that consequence.

And if people are afraid of going to meetings and speaking up because what's going to happen is that they're going to be the subject of criticism in a publication, that's…just life under the First Amendment, as far as I can see.

And the Brown Act, by the way—which, of course, is involved here underlined in these lawsuits—exists just because of the issues that we're talking about here. And that is so that the basis for public decisions and law making—by law makers and other public figures who are deciding important issues will be known. It's the Sunshine law. --So people will understand that.

And aren't you saying that—I mean, are you not saying that what Mr. Bauer has done is to cause people to not want to go to these meetings for just that reason?


MR. LARSEN: No, Your Honor, we're not.

Let me explain that…If that was what we were saying, we would have taken some kind of action much earlier than we ever did with respect to a [newsletter] which had existed for a year and a half without physical threat of violence and which continues to publish—and you have that in the record before you—which is very negative and critical and whatnot.

No, what we're saying is when we took action before, there were threats of physical violence that made people feel like they did not want to participate out of fear for their personal, physical safety…Now with respect to the policies themselves, you've had a great deal of argument. The discrimination policy is short and sweet in the vernacular…Mr. Bauer in his testimony indicated that he understood from a common sense point of view what was prescribed….

As to the [workplace] violence policy, I submit to you that that policy does have a legitimate purpose. It is a necessary policy in today's work place. And that it has been narrowly tailored with a lot of specific indices that are based on the industry standard….

We live in a place—in a climate, unfortunately, in the education climate, where violence is all too prevalent; where fear does now exist both on the part of those that are doing the employing and those who participate. We live in a community, unfortunately—Orange County—where we're “going [postal].” It's a very significant remark and, in fact, [first] occurred within the confines of the jurisdiction of this organization….

THE COURT: Does that mean that those words should never be spoken?…

MR. LARSEN: Those words should not be spoken by an employee about his immediate supervisor.

9. “Going postal”

THE COURT: That is not the exact context. I've got the exact context.…I've got the document in front of me. I've read the document and it is referring to a past event in the context of criticizing the self-congratulatory nature of the discussions at that time and saying that "No reasonable person under those circumstances could have resisted going [postal]." That's what it says.

MR. LARSEN: And those are circumstances which this author anticipated, in fact, did exist. Whether they existed in reality or not. If they existed, it was in his reality that he becomes a danger.

10. A case of trying to quiet a “vigorous critic”

THE COURT: Well, all right. I understand the point, I just don't agree with you.

And I'm not going to argue with you about the importance of considerations on workplace violence. That goes without saying. I just think this is a case where that concept, a legitimate concept, is being stretched for the purpose of taking a vigorous critic of the administration and the board of trustees and trying to keep them quiet. That is how this case hits me.

MR. LARSEN: That would be the policy of the applied, Your Honor, not the policy on its face.

THE COURT: Well, the "policy on its face," when you say that it includes "written materials which have violent behavior overtones," I have no idea what that means and I don't think anybody could reasonably be expected to understand what that means.

That is—as far as I'm concerned, that is an open invitation to someone to take statements of the sort that were made in this case, pull them out of context and say, "Therefore we’re disciplining you." And that's what I think is wrong with that policy.

…..
All right. I think that the record is quite clear. Mr. Larsen has vigorously advocated his position to me and I disagreed on the legal position here and I don't know where this case is going next; I have a pretty good idea. And maybe Mr. Larsen will get an opportunity to come back and say, "I told you so, judge," I don't know. That's an entirely possible situation.

But at this point the court's tentative is going to become its final. I am going to write a memorandum opinion on the case...All right.

MR. LARSEN: Does that apply to the policy on the harassment discrimination also?

THE COURT: I am going to take a look at the cases on that. I'm not terribly convinced by Ms. Sobel's argument that it's invalid on its face. But I will look at the case law and see what I think about that. Right now my tentative would be to grant on One, Two, Three and Five, on the grounds that the receipt of the policy as applied by the First Amendment, that the work place violence policy on its face is violative of the First Amendment, but not on the basis that the discrimination policy violates the First Amendment on its face. But I'm going to look at the case law and see—see if Ms. Sobel's argument is more convincing in light of those cases. But I'm not terribly convinced on that. All right?

MS. SOBEL: Thank you, Your Honor.

You had to be there: Mathur, Sampson, in court, losing bad

It’s official: Sampson violated an instructor’s Constitutional rights!

By Chunk Wheeler [Dissent 34, 10/25/99]

Oct. 25, 1999:

Wendy and I left for Federal court at about 8:00 a.m., probably a bit late. We made good time and, by 9:15, we were parked across the street from the Edward R. Roybal Building in downtown LA. When we emerged from the elevator onto the 7th floor—the location of Judge Gary Allen Feess’ courtroom—we were waylaid by my attorney, the excellent Carol Sobel, who said simply, “Roy, looks like you won everything,” as she handed me a copy of the tentative ruling.

At first, I seemed incapable of reading it, but I soon understood that it was a reaffirmation of the highly favorable opinion set forth in Judge Manella’s earlier preliminary injunction—but it went beyond that. It said that two district policies—those cited in the Chancellor’s ruthless and stupid disciplinary action against me—were “unconstitutional on their face.” Whoa!

On the other hand, it was only the tentative ruling; we still had to present arguments and answer questions before the judge. Things could change.

Here’s what the document said:
PROCEEDINGS: (In Chambers) Tentative Ruling re: Motion for Summary Judgment (Memorandum Opinion to Follow After Hearing)

Plaintiff Roy Bauer moves for summary judgment on all claims against defendant Cedric Sampson arising out of attempts to discipline him...in December 1998 for statements made and satirical illustrations appearing in a publication disseminated within the South Orange County Community College District (“SOCCCD”) community.

[I'VE DELETED MOST OF THE TENTATIVE. FOR THE WHOLE THING, GO TO THE END OF THIS BLOG.]

No reasonable person could have concluded that the written words of Bauer constituted a serious expression of an intent to harm or assault. Id.

Furthermore, applying the tests regarding the speech of public employees set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) and Brewster v. Board of Education, 149 F.3d 971, 980-981 (9th Cir. 1998) Bauer’s free speech rights outweigh the interest of Sampson and the college in preventing speech of the type Bauer has engaged in. Bauer was speaking out on matters [of] public interest, and his speech was a substantial (perhaps the only) motivating factor in the proposed discipline. Defendant has shown no legitimate interest that outweighs Bauer’s First Amendment rights.

Finally, although the issues were not reached in the preliminary injunction hearing, the Court has reviewed the policies in question for vagueness and overbreadth and finds both defects present in the policies in question. Accordingly, the Court concludes that the policies are unconstitutional [on] their face on both grounds.

The saga continues:

As we started to move down the hallway toward court, we espied Mr. Raghu P. Mathur, who had been lurking unpleasantly. He scurried to a restroom.

Once inside the courtroom, Carol, Wendy, and I sat together on the right. Eventually, Cedric, Raghu, and Dave Larsen (the district’s long-suffering attorney) sat together near the middle. They were as quiet as corpses, sporting lugubrious expressions.

Soon, Feess showed up, and he dealt with the first case pretty quickly. I didn’t pay much attention, but the judge got pissed ‘cuz the guy had showed up without a lawyer. “Don’t do that,” he said, more or less.

To our surprise, we were up next, and so Carol and Dave shuffled up to that scary middle area of the courtroom where the judge gets to yell at you. Feess layed out his tentative ruling. Essentially, said he, he agreed with Judge Nora Manella’s opinion of the preliminary injunction, according to which the six offending elements of my newsletter (two of which I did not author!) were “protected” speech. But he had gone beyond her ruling to declare both the district’s Discrimination and Workplace Violence policies to be unconstitutional.

During the morning, however, he had reviewed the documents and judged that, perhaps, the Discrimination policy was not really unconstitutional on its face. True, he said, it was used for an “improper purpose,” namely, to “stifle dissent.” But it wasn’t unconstitutional per se. The other policy was another matter; its language was terribly vague and ambiguous, etc.

Larsen started yammering about the “Pickering” case, whatever that is, and about “specific factual issues.” “I don’t see it,” said Feess. The factual record, he added, is not in dispute. He noted that the district had tried to add all sorts of supposedly damning information about me “after the fact,” but that stuff didn’t impress him, and it wasn’t relevant anyway. The issue, said Feess, is what I had written (or illustrated or edited) in the newsletters, the locus of complaint in the disciplinary letter of December, 1998. And that stuff was “plainly protected under the 1st Amendment.” He added that it was “hard to understand what administration was thinking” when they took this action against me.

I looked at Cedric. He looked like a ghoul.

Larsen sputtered forth some hooey about the “debilitating” impact I have had on the “organization.” Back in ’98, Raghu had (illegally) inserted an admonition in my teaching evaluation—he had urged me to help promote a “positive” environment, or some such rubbish. (At the time, three of Raghu’s critics had received the same admonition in their teaching evaluations.) I had violated that direction by persisting in nattering negative nabobery.

Gotta look at the impact of speech, said Larsen. The impact’s the thing. And then there’s “Sherry White-Miller’s” [sic] fears. What about that?

Judge Feess broke in: yeah, she’s worried about Bauer’s “crane,” from which he swings that dangerous “granite slab”—Is that it?, he asked. (Laughter.) “She feels physically threatened,” offered Larsen.

Feess then explained that it just wouldn’t do to follow a standard based on what produces fear in the “most sensitive” individuals. “Most sensitive” seemed to be a euphemism for “most addled.” Are we supposed to “muzzle” speakers just because of the goofy worries of goofy people? Don’t think so.

Larsen was getting desperate. He suggested that I had engaged in actual face-to-face threats. He was referring, of course, to my brief 1998 meeting with Glenn “Pinhead” Roquemore, in which (according to Roquemore) I had said something to the effect that “Mathur’s going down, and you’re going down with him.” The tender Glenn took that remark to be a threat of violence against him. Feess, referring specifically to that testimony, virtually guffawed.

Larsen then insisted that I had come close to physical violence. What about the “fucking asshole” episode?, he asked. According to Ken “I’ve got a Ph.D.” Woodward, I once called him a “fucking asshole.” I’m not sure I recall this episode, but if you know Ken, you know what a jerk he can be. He’s a needler of an infantile variety. Once, during a union Rep Council meeting, as I sat silently alone (the only “reform” unionist in the room, as I recall), he started up with one of his needling jobs: “Look, over there. It’s that Roy Bauer. I’ll talk about my Ph.D. He hates when I talk about my Ph.D.”

I kid you not.

Is it possible that, accosted by Woodward and treated to one of his infantile needlings, I walked away, muttering the phrase “fucking asshole”? Sure.

Judge Feess revealed a comedic bent. He noted that, if calling someone a “fucking asshole” were an actionable threat, the courts would be overflowing with offenders. Hell, he’d heard that phrase used in the courtroom sometimes—even once by someone wearing a “black robe.” Everyone guffawed.

Yeah, said Larsen, but what about all the others who complain about Bauer! It’s not just Sherry Miller-White!

Feess ridiculed the notion that a college professor should be told to restrict himself to “nice” remarks about others. That I had been directed by Mathur to, as Feess put it, “make things nicer” seemed to him to be a possible violation of the 1st Amendment all by itself. “It’s a college campus.” If you can’t “speak your mind” there, then where?, he asked.

Feess noted that, according to Larsen’s clients, I was responsible for the district’s problems, but the record did not support that charge. Some people, he said, might take offense to some elements of the newsletters, but that is no reason to discipline me. Especially not at a college.

Larsen again insisted that I had been “disruptive.” My words had caused fear, what with talk of granite slabs and all the rest.

The fundamental issue was whether it was “reasonable” to view my conduct as threatening. If, said Feess, Larsen was referring to the words and graphics of the newsletters, the notion that their content was “threatening” was “beyond reason”—i.e., no reasonable person would view this stuff as threatening. (Mathur and Sampson looked especially cadaverous at that point.) Clearly, said Feess, Larsen and his clients were “unhappy” with my writings. So freakin’ what?

Carol and the Judge then debated various issues. Sampson’s crew were arguing that I was solely responsible for the troubles that led to accrediting difficulties for the two colleges. That’s absurd, said Carol.

They discussed the notion of “disruption” on a college campus. A sit-in, said Feess, could be said to disrupt operations, but not speech that makes some people uncomfortable.

Carol argued that the district’s Discrimination policy was unconstitutional because it provided no guidelines regarding the difference between protected and unprotected “discriminatory” speech, despite an “abundance” of court cases that help to define that line. Further, how is an employee supposed to know when he has violated the policy? Is he or she supposed to look this stuff up in a “secondary source”?

Feess didn’t seem to agree, though he acknowledged that the policy had been “stretched and flip-flopped” in my case in order to stifle dissent.

Larsen alleged that, because of my “speech,” people weren’t participating in meetings, to which Feess responded: if people don’t want to participate because they’ll be criticized, then “so be it.” He then carped about those who prefer to operate “behind closed doors.” Under our system, he said, you can’t avoid the consequences of your actions and choices. Some people don’t want to be criticized for what they do and say, but, said Feess, “that’s just life under the 1st Amendment.” He explained that the Brown Act exists exactly because of this tendency among some powerful people to try to keep their actions hidden, away from criticism.

Eventually, Larsen referred to my (humorous) use of the phrase “going postal.” Are you saying that no one should ever use that phrase?, asked Feess. Larsen started to yammer. Feess cut him short: “I’ve read it,” he said, referring to the offending paragraph in which the phrase appeared. There’s no threat there. Clearly, he said, this is a case of stretching a policy to silence a legitimate critic.

Feess reiterated that he rejected the district’s Workplace Violence policy, which inspired Sampson to refer to my “violent behavior overtones” in the December letter. “I have no idea what that means,” he said. The policy, he added, is an open invitation to take a person’s words out of context as a pretext for disciplining him. He implied that that had occurred in my case.

Feess explained that his tentative judgment, as he had just explained it, was now final, except that he would go off to consider whether the district’s Discrimination policy, too, should be judged unconstitutional on its face. He would be issuing a written opinion.

And that was about it. Cedric had been spanked, and, by extension, so had Raghu.

Soon, we were out in the hallway, and, as luck would have it, all six of us ended up alone in an elevator, headin’ down. I smiled pleasantly. Dave turned to Carol and said, “Well, Carol, you did very well with the judge, as usual.” Without missing a beat, Carol responded by saying, “Yes, you did well, too, Dave.” Then she got that impish look. Gesturing toward Cedric and Raghu, she added: “—Given what you had to work with.” Wendy and I smiled, and maybe even snorted. Raghu glared. I’m not sure what Cedric did, ‘cuz I didn’t look at ‘im, but, later that evening, at the board meeting, he looked like a bloodless Halloween corpse, the poor fellow. —CW

HERE'S THE ENTIRE "TENTATIVE":
PROCEEDINGS: (In Chambers) Tentative Ruling re: Motion for Summary Judgment (Memorandum Opinion to Follow After Hearing)

Plaintiff Roy Bauer moves for summary judgment on all claims against defendant Cedric Sampson arising out of attempts to discipline him, pursuant to policies 4000.3 and 4000.5, in December 1998 for statements made and satirical illustrations appearing in a publication disseminated within the South Orange County Community College District (“SOCCCD”) community. At the outset the Court notes several procedural issues:

1. The motion is made as to all claims, but Bauer focuses his argument almost entirely on the First Amendment issue. No particular effort has been directed to establishing the elements of an equal protection claim or a retaliation claim under California law.

2. Bauer objects to certain portions of the evidence submitted on behalf of Sampson but without addressing the additional statements of fact that are alleged to be both material and without substantial controversy.

3. Although this case properly involves discipline pertaining to those particular statements, defendant [Sampson, et al.] has offered additional evidence of Bauer’s allegedly violent, disruptive and uncivil conduct to defeat this motion. While the Court concludes that such evidence, which is not included in the written explanation for the discipline, is not material to the issues before this Court, even if considered it does not change the result.

To summarize, the motion as to Counts One and Five is granted essentially on the same basis underlying the issuance of a preliminary injunction. The speech in question is core protected speech and there is no applicable First Amendment limitation that would permit the discipline to be imposed on Bauer. The Court finds that, as applied to Bauer, the written policies in question violate Bauer’s first amendment rights. The speech in issue did not constitute “threats” within the meaning of first amendment jurisprudence in that, on its face, it was not so [“]unequivocal, unconditional, immediate and specific . . . as to convey a gravity or purpose and imminent prospect of execution.” Lovell v. Poway, 90 F. 3d 367, 372 (9th Cir. 1996). No reasonable person could have concluded that the written words of Bauer constituted a serious expression of an intent to harm or assault. Id.

Furthermore, applying the tests regarding the speech of public employees set forth in Pickering v. Board of Education, 391 U.S. 563, 568 (1968) and Brewster v. Board of Education, 149 F.3d 971, 980-981 (9th Cir. 1998) Bauer’s free speech rights outweigh the interest of Sampson and the college in preventing speech of the type Bauer has engaged in. Bauer was speaking out on matters [of] public interest, and his speech was a substantial (perhaps the only) motivating factor in the proposed discipline. Defendant has shown no legitimate interest that outweighs Bauer’s First Amendment rights.

Finally, although the issues were not reached in the preliminary injunction hearing, the Court has reviewed the policies in question for vagueness and overbreadth and finds both defects present in the policies in question. Accordingly, the Court concludes that the policies are unconstitutional [on] their face on both grounds.

ASK MISS FORTUNE!

[From Dissent 34, 10/25/99]

[See 3/15/99: Dear Miss Fortune -- inauguration.]

Dear Miss Fortune:

Enough already! I can handle mass protests in the streets of Belgrade and dissent at the university. I can handle attacks on my strange wife and good-for-nothing son. I can deal with NATO missiles and losing Kosovo. I can even endure international sanctions. But I will absolutely, positively not stand for further comparisons of me in the pages of the Dissent newspaper to that wannabe, Raghu P. Mathur!

--President Slobodon Milosovic

Dear Slo:

At least you understood the comparison. I’m sorry. Really. Nobody deserves what you’ve had to endure. Please, please don’t sue us. By the way, are you aware of the fine Anger Management Counseling programs available through the SOCCCD Employee Assistance Program?

Dear Miss Fortune:

As a God-fearing Christian conservative, I’m writing to explain the difference between “religious” and “religious right.” Easy. If you’re not religious, you’re wrong. If you are religious, you’re right. See? Whenever I’m confused about this, I consult with the local Fine Arts guy who attends our church, which the rest of the week is a community college we’re arranging to buy and rename “Irvine Valley Calvary Chapel (inc.com.edu.)” We’ll have distance learning and corporate sponsors and fun pancake breakfasts and the gym will be perfect for Promisekeeper events. We have big plans for decorating the campus, too. Imagine: Thousands of tiny bright lights strung on all the campus buildings, visible to South County passersby from the 405 freeway. The Fine Arts guy says this is all okay because it’s not political, it’s religious. Right?

--Funda Mental

Dear Mental:

God bless you. It’s quite a vexing problem, isn’t it, balancing one’s theocratic impulse with undermining pluralistic secular public education? Myself, I’ve taken to wearing a small button on my lapel, which, writ in small faux gold letters, reads “WWRD?” Whenever I’m feeling confused about matters spiritual or political, I look at my special pin and wonder to myself: “What would Raghu do?” Just repeating this handy mantra makes me feel positive and upbeat, though, oddly, it causes people standing near me to pick up their phones and call their lawyers. For further amplification on spiritual themes, I call the Vice President of Student Services. Although, come to think of it, I know what he would do.

Hey Miss Fortune, You G*d**n *****!

I’m a guy who likes to make threats. Oh, boy, do I love to threaten people. Frighten. Scare. Intimidate. Gee, I use dirty, filthy, horrible language. Sometimes I use such awful, terrible, extraordinarily offensive filthy language that I can’t even read the stuff I write myself! I type it on the keyboard with one hand and have to cover my eyes with the other just so I don’t offend myself. Yes, that’s how awful it is. I’m so nasty that sometimes I e-mail people, sometimes I use the telephone, sometimes I write letters. There’s no method that I haven’t used to do my nasty, awful things. That’s really how horrible a bad, nasty guy I am. So, I was wondering: How can I get a copy of Dissent, ‘cuz my secretary’s cut off my supply?

--Anonymous

Dear Anonymous:

Just stop by Raghu’s office. I hear he’s got a secret file just full of ‘em.

Dear Miss Fortune:

I’m the illegally-appointed president of a small community college, thinking positively, bringing people together and spreading the One True Light. Lately, my flock seems upset about discovering my secret files on them and a couple of the arranged marriages are falling apart. A few dark panel trucks with “Accreditation Team” painted on them have just pulled up in front of A-100, but since I’ve had all the phones rerouted through PIO Joyce Kirk’s office (“We’re pleased about all the activities going on in the compound”), few of the Chosen Ones will even know. Besides, now that I’ve had my contract renewed, we can stay holed up here for two more years.

--The Appointed One

Dear Wacko:

I’m putting down the phone now. I have Glenn here with me. We’re going to walk, slowly, across the quad and make a swap. You’ll give us the files and the keys to the Greenhouse and we’ll give you Steve. Okay?

8-14: do you regret all the lying?

✅ Trump Encourages Racist Conspiracy Theory on Kamala Harris’s Eligibility to Be Vice President NYT ✅ Orange County Sees Overall Coronavirus...

Goals and Values and Twaddle

blather: long-winded talk with no real substance*
The whole concept of MSLOs [measurable student learning outcomes] as the latest fad in education is somewhat akin to the now discredited fad of the '90's, Total Quality Management, or TQM. Essentially, the ACCJC adopted MSLOs as the overarching basis for accrediting community colleges based on their faith in the theoretical treatises of a movement.... After repeated requests for research showing that such use of MSLOs is effective, none has been forthcoming from the ACCJC [accreditors]. Prior to large scale imposition of such a requirement at all institutions, research should be provided to establish that continuous monitoring of MSLOs has resulted in measurable improvements in student success at a given institution. No such research is forthcoming because there is none….
The Accountability Game…., Leon F. Marzillier (Academic Senate for California Community Colleges, October, 2002)
In the summer of ’13, I offered a critique of the awkward verbiage by which the district and colleges explain their values, goals, and objectives —aka SOCCCD'S G&V (goals and values) blather.
I wrote a post each for the district, Saddleback College, and Irvine Valley College efforts. (See the links below.)
This verbiage—stated in terms of “values,” “missions,” “goals,” “visions,” and whatnot—is often badly written. It is sometimes embarrassingly trite.
It occasionally communicates something worthwhile.
No doubt you are familiar with the usual objections to jargon. Higher education, too, has its jargon—an irony, given typical college-level instruction in writing, which urges jargon eschewery.
Sure enough, SOCCCD G&V blather is riddled with jargon and with terms misused and abused. For instance, in the case of the district’s dubious blather, the so-called “vision” is actually a purpose. Why didn't they just call it that?
As one slogs through this prattle, one finds that "visions" tend to be awfully similar to “missions,” with which they are distinguished. The latter in turn are awfully similar to “goals,” which must be distinguished from “objectives.” But aren't goals and objectives pretty much the same thing?
These perverse word games will surely perplex or annoy anyone armed with a command of the English language. In fact, readers will be perplexed to the degree that they are thus armed. Illiterates, of course, will be untroubled.
Here's a simple point: the district and colleges’ G&V blather tends to eschew good, plain English in favor of technical terms and trendy words and phrases (i.e., it tends to be bullshitty and vague). Thus, one encounters such trendy terminological turds as “dynamic,” “diversity,” “student success,” and “student-centered.” Even meretricious neologisms such as ISLOs and “persistence rates” pop up, unexplained, undefended.
Does anyone see a transparency problem with all of this? Shouldn't the public, or at least the well educated public, be able to comprehend statements of the colleges' goals and values?
In the case of the district, to its credit, all it really seems to want to say is that it wants to teach well and it wants students to succeed. Admirable!
So why all the ugly, common-sense defying, buzzword-encrusted claptrap?

Districtular poppycock: our “vision” and our “mission” and our tolerance of twaddle - July 31, 2013

THEY BUZZ: Saddleback College's "Mission, Vision, and Values" - August 4, 2013

IVC’s vision, mission, and goals: nonsense on stilts - August 5, 2013

THE IRVINE VALLEY CHRONICLES: no ideas, just clichés & buzzwords - Sep 30, 2013

*From my Apple laptop's dictionary