ROY BAUER'S 1ST AMENDMENT BATTLES or "One Gadfly, One Gadfly Swatter"

From Dissent 60, 10/22/01

[The following essay was part II of a much longer essay called “A Swine County Almanac.” Part I, which told the tale of the Board Majority circa 1997-8, was entitled “three disgruntled part-timers and a bailiff.” Part II seemed to be entirely about my own 1st Amendment battles.]

[See also ARCHIVES: January 1999, for Bauer's account of being called into Sampson's office and ordered to seek anger management counseling!]

* * *

One gadfly, one gadfly swatter

I, Chunk

During this early period [i.e., 1997], I, Chunk, produced and distributed several satirical newsletters at IVC. By early ’97, my chief publication was called the ‘Vine. By mid-1998, the ‘Vine was largely replaced by Dissent, distributed unevenly, district-wide.

By design, the newsletters, to which several writers contributed, emphasized one overriding district truth: that a gang of greedy and disgruntled faculty—Mathur, Mickey No-Neck, “Baño” Bob, et al.—had made a pact with four opportunistic little devils—the Board Four—and, together, this crew was razing everything worthwhile that had been built.

It was difficult keeping up with the Dark Side’s crimes, hijinks, and peccadillos, but we gave it the old college try. Some people thought we were makin’ things up, what with tales of pants-droppings, loogie assaults, neo-Nazi rallies, gay-bashing, secret bank accounts, and all the rest. In reality, we were tonin’ down the facts, worried no one would believe them in unmitigated form.

‘Vine/Dissent was a hit. Early on, readers sent me “thank you” notes, cash, writings, and suggestions.

Dark Siders really hated Dissent, and they really hated me. Whenever I visited Saddleback, Lee Walker would get under foot, pestering me à la Ratso Rizzo, only without Ratso’s polish and good looks. Ken Woodward, too, would noisily orbit and sneer, offering such jibes as, “I’ve got a Ph.D. in economics. Nnnyeh!”

Such episodes were mostly comical. Others were creepy. Whenever Walter confronted me, as he sometimes did, his quakage and sputterage looked like a heart attack. Once, as I dined at a restaurant, Patrick F appeared from out of nowhere, pointing at me, shouting, “Those who live by the sword, die by the sword!” He trembled. I do believe he soiled his trousers. 

Making their own sauce

[Bauer’s] got some pipeline to the LA Times. I wish I knew what it was!

—Ken Woodward, on KPFK’s “Lawyers’ Guild,” 2/19/98

In ‘97, for PIO, the district hired Pam Zanelli, who functioned as a political consultant and flack for the Four, or so said the Three. Zanelli was the “professional” who, only months earlier, urged her then-clients, the union Old Guard, to use the “same-sex domestic partners” gambit to get Frogue, Williams, and Fortune elected and protect “life as we know it.”

She has a haystack on her head.

Naturally, what with the addition of a full-time Board Majority propagandist, some of us began talking to the press more often, givin’ ‘em the skinny. By early ’97, I (along with a few other rebels) had become adept at puttin’ local news hounds on the scent of stories that, invariably, embarrassed the Four, the union Old Guard, and Mr. Goo. Zanelli’s transparent spinnage was a weak force in this universe.

Mostly, all we had to do was point reporters in a certain direction. We didn’t have to add anything; they’d make their own sauce.

Our success with the press had nothing to do with bias. Hey, if, over time, you never lie or exaggerate or cry wolf, people start trusting you. That’s the secret, but it only works if you’re on the side of the angels. Rat Bastards need to hire Zanelli.

But Dark Siders naturally assume that everybody’s a lyin’, manipulatin’ piece o’ sh*t. Inevitably, to such people, if you get your side, your story, across to the public via the news media, you must be pullin’ a fast one somehow. 

The “JFK forum” episode

“Oh, get out of here!…You couldn’t find ... more embarrassing conspiracists in America. Even among conspiracy theorists, these people represent the outer limits.”

—Chip Berlet of Political Research Associates, commenting on the “experts” invited for Frogue’s assassination forum (Times)

Some truths really ought to be revealed, especially when they concern the fate of hundred million dollar chunks of taxpayer cash. The Board Four’s breathtaking intellectual incompetence was such a truth.

On the morning of the August 18, 1997, board meeting, a colleague alerted me to board agenda item 13. It said

Several speakers have been invited to participate in [board president Frogue’s Fall] forum on the JFK Assassination. Expenses for travel, accommodation and/or honoraria are estimated below:
Sherman Skolnick: Not to exceed $1,500.00
Dave Emory: Not to exceed $1,000.00
John Judge: Not to exceed $1,000.00
Michael Collins Piper: Not to exceed $1,000.00

“Hmmm,” thought I. “Isn’t Piper the boy reporter for Spotlight?”

I made a heads up call to the ADL’s Joyce Greenspan, telling her what I knew about Piper, namely, that he worked for Spotlight, the nation’s #1 anti-Semitic newspaper, published by the nation’s #1 anti-Semite, Willis Carto. I advised her to look into Frogue’s other speakers too.

That night, Joyce addressed the board, informing them about Carto, Spotlight, and Piper. She explained that Skolnick, another Frogueian guest, was on Spotlight’s advisory board. Joyce urged the board not to approve item 13.

Frogue responded by explaining Piper’s theory—how the CIA and the Israelis conspired to kill JFK, etc. Piper’s theory, like dozens of similar yarns, is based on poor scholarship and dreadful reasoning. That is why it is not taken seriously by scholars. That is why Frogue’s “forum” was wrong for SOCCCD. Colleges should have standards.

The anti-intellectual Four understood none of this. They happily approved item 13, thereby demonstrating their utter incompetence.

The next morning, I phoned the Times’ Michael Granberry. Two days after that, the front page of the Times roared: “O.C. College Course Claims JFK Conspiracy.” Granberry’s article, which was picked up across the country, revealed that Frogue’s “experts” were pots so cracked that they even embarrassed world crackpottery. Thus it was that, for a day or two, our board and district became a national joke, an object of fun and frettage among Arianna Huffington, George Will, and the rest of American political blabbermouthery.

For the Featherbrained Four, it was an embarrassment of Biblical proportions. They had no one to blame but themselves. 

The last straw?

While the “JFK” fiasco—and resultant recall effort—raged, our Brown Act lawsuits (Wendy Phillips, now “Gabriella,” was one of the attorneys) moved through the courts. Late in ’97, Superior Court Judge Macdonald ruled in my favor in “Bauer I,” as it was called. By late ’98, it became clear that Judge Seymour would do the same in “Bauer II.” Despite Zanelli’s endless haystack spinnage, the Four were getting slaughtered, PR-wise.

A coupla weeks after the trustee election of November 1998, I published a guest column in the Sunday OC Register, revealing anew the ugly truth about our swine and their union piglets. Despite its relatively high profile, the article probably did more to catch parakeet droppings than to win hearts and minds. Still, it must have infuriated the Four.

Maybe it was just coincidence, but, a few days after the column appeared, without a hint of warning (contra board policy), I received a letter from Chancellor Cedric Sampson informing me that, in his opinion, I had violated the district’s “workplace violence” and “discrimination/harassment” policies.

Evidently instigated by Mathur, the letter, which (contra the contract) was already in my personnel file, claimed that I had been (a) making life miserable for faculty of the “Christian religious experience,” (b) using a racist term to refer to Mathur, and (c) publishing violent and threatening things in my newsletters.

In a follow-up letter, I was ordered to seek counseling.

“Good grief,” I said.

Mr. Shit

“I feel discriminated.”

—Raghu Mathur, 10/9/89

By then, despite his staunch Republicanism, Raghu already had a history of playin’ the “race” and “threat” cards, 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.” [See Register, 1/7/00]. What’s that tell you?)

The notion that I was tormenting Christians stemmed from Mathur and Co.’s amazing ignorance. When deposed, Mathur and Sampson acknowledged unfamiliarity with Pat Robertson’s right-wing political organization, named “Christian Coalition.” (Jerry Falwell’s recent remarks that blamed the Sept. 11 attacks on lesbians, et al., were made on Robertson’s TV show.) So, since I have never criticized Christians or Christianity, I can only surmise that the Ignorami Twins had mistaken Dissent’s one or two snide references to Robertson’s 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” 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.

The six elements

“You’re just not couth!”

—Judy Holiday (Born Yesterday)

El Ced’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 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 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)

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.”

Lawyers, guns, and money

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.)

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.”

A few weeks later, I got Bill’s bill: $1,500.

* * * * *

So I got help from Carol Sobel, a Santa Monica-based First Amendment attorney. We 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.

Probably, the Dark Side expected me just to soften Dissent. As it turns out, 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.

Our strategy: to win a “summary judgment.” Essentially, you win a summary judgment when the judge thinks a trial is unnecessary cuz your opponents don’t have a leg to stand on.

Federal court preliminaries

The district’s lawyers—Rutan and Tucker—commenced shoring up the district’s weak legal position. 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.

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.

Victory, part I

“I believe that [the district’s antidiscrimination policy] was used for an improper purpose in this case and that is to stifle dissent.”

—U.S. Judge Gary Feess, 10/25/99

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 Larsen’s clients, 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, 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 from Woody and his pals.

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.

The appellate hearing

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 this year. 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 declarations and Larsen’s impromptu courtroom fabrications. I had caused district employees—Sherry—to be “very frightened,” said Larsen.

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?

No.

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

No.

Did I have any history of arrests or confrontations?

Nope.

Victory, part II

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, 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.” (Emphasis in original.)….

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.

As things now stand, Carol will be awarded about $200,000 in fees, to be paid by the district. No doubt the district has already spent much more than that for Rutan and Tucker’s services.

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.

After nearly three years and an uninterrupted string of court victories, to date, Carol has not seen one dime in attorney fees. Further, Ced’s disciplinary letters remain in my personnel file.

So, now, again, we wait. If the Board decides to appeal to the Supreme Court—a request the High Court will almost surely deny—even more taxpayer money will be wasted.

 In any case, dissent continues.

--FU

THE “HOWARD HILTON”

From Dissent 65, September 30, 2001

[Raghu Mathur has a remarkable record as an employer and promoter of very special administrators. Rodney Poindexter is a real standout in this regard (see ARCHIVES: “Mathur vs. Women”, 9/05). Another is Howard Gensler, who was appointed interim or temporary dean some years ago, but Raghu liked him, so he was eventually named permanent dean (of PE/Fine Arts/Humanities!). But, not long after some negative press concerning a project of his and Raghu's that is commonly referred to as the "Howard Hilton," the fellow left that position in a cloud of dense smoke and quizzical expressions.

Ultimately, Howard popped up again as a full-time Econ instructor at Saddleback College, sans the usual search and hire process. He is now fully tenured.

The following piece from a September 2001 Dissent tells some of the Gensler story at IVC. Please note that, at one point, Rod Poindexter was chosen by ASIVC as "administrator of the year." (The ASIVC president at the time was a noted Mathurian.)

We figured we would complete the picture by offering Howard the same title.]

DISSENT’S “ADMINISTRATOR OF THE YEAR,” HOWARD GENSLER

Howard Gensler, Dissent’s “Administrator of the Year,” first entered our lives in 1989, when he was hired as an adjunct. Now, he’s a Dean at IVC, and he’s made quite a splash!

Dean Gensler’s background is fascinating. In the late 70s, he received five Bachelor’s degrees, and soon thereafter, at UCB, he received a law degree. By 1983, he was teaching tax and law at Northrop University, where he assisted Dean Carl Sederholm.

In 1984, he succeeded Sederholm, becoming Dean of Northrop’s School of Law (see Times, 1/26/85). As such, Howard was the Chief Academic Officer of the Graduate Tax Program.

As if that weren’t enough, he then published an epic poem, The Avenger of Blood. [Note: you’ve really got to get a copy of this book. It is quite special.]

Northrop University:

Northrop U sure is an interesting place. Founded in 1942 by the well-known aeronautics firm as a school for airplane mechanics, Northrop later expanded into “computer science, business and law studies” (L.A. Times). In August of 1979, it became the site of the Institute for Historical Review’s first international Holocaust “revisionist” conference.

In 1986, Northrop began a master’s program in international business and taxation. Alas, the program ran into difficulty. According to the Times (9/12/89),

Northrop University…should lose its accreditation because of ethical violations in recruiting foreign students, awarding credits and bookkeeping practices involving millions of dollars, the agency that monitors California colleges announced Monday…The rare action by the Western Assn. of Schools and Colleges stems from complaints about Northrop’s master’s of science program in international business and taxation, which enrolls many students from Asia. But the problems have “substantially affected the infrastructure of the university in nearly every aspect,” according to a WASC official…The agency recently voted to strip the school of its accreditation beginning in November…According to [the WASC official], Northrop operated part of the master’s in international business program in Taiwan without WASC approval. An investigation also showed “substantial irregularities” in how the school admitted foreign students, processed immigration documents, graded student performances and awarded credits, he said…[He] also said millions of dollars in tuition are unaccounted for or improperly accounted for. “We are entirely unsure of the magnitude,” he said…

Soon, Northrop’s long time president, B.J. Shell, unexpectedly retired; he was replaced by John Beljan, who was “given authority to take any measures necessary to guide the institution out of its financial troubles” (Times).

Northrop appealed WASC’s adverse Accreditation decision; still, the school has dwindled, and it is now the tiny Northrop Rice Aviation Institute of Technology.

Howard’s “extraordinarily unusual” legal victory:

Howard left Northrop U in 1987, whereupon he worked for the IRS, but only briefly. In 1988, Howard ran for a seat on the Costa Mesa City Council, though he was later forced to withdraw from the race, owing, evidently, to his failure to register to vote (see OC Register, 10/6/88).

Starting in 1988, Howard practiced law. In 1990, he represented a UCI math professor who accused the university of “punishing him for failing to publish enough scholarly articles” (see OC Register, 4/20/90). Not long after, he represented another UCI math instructor, Paul McGill, who sued because he had been denied tenure. Eventually, McGill prevailed. According to the Times (7/23/93), a judge “ordered UC Irvine to rehire” McGill. Said Howard, “This is an extraordinarily unusual and unique situation…The university is given remarkable latitude in terms of giving tenure; it’s a really hard area to win.”

Howard’s Cato years:

Howard, always the busy bee, received his doctorate in Economics in 1993. Then, according to the Laser Beam, during the mid-90s, Howard “taught for three years at the Hong Kong University of Science and Technology,” where he was a lecturer in Accounting.

During this period, Howard published at least 2 articles for the Cato Institute, a conservative/libertarian think tank that opposes government regulation and welfare. In one article entitled “The Effect of Race and Sex on Welfare Benefits” (Vol. 15 No. 2-3), Howard argued:

At the national level…disparities exist in the allocation of welfare. Black single female-headed households received $756 more welfare per year than similarly situated non-black families…At the state level for single female-headed households, 15 states gave blacks an average of $1,569 more welfare per year…The analysis…indicates that fundamental problems of equity in either access or assessment persist in the income maintenance system….

Gee willikers! In another Cato article, entitled “The Effect of Welfare on High School Graduation” (Vol. 16, no. 2), Howard offered a fascinating study of welfare mothers:

The hypothesis that higher welfare levels adversely impact high school graduation rates is confirmed with a high degree of statistical precision…Increases in the welfare system do not promote accumulation of human capital…[T]he basic negative relationship between welfare and education must be understood before effective public policies concerning welfare, education, and poverty can be formulated.

Meanwhile, Howard found time to edit a book entitled The American Welfare System, which remains in print.

Another deanship for Howard:

In 1999, Howard became the interim dean of Humanities and Languages, replacing Richard Prystowsky, who had resigned after brief service. (Prystowsky had succeeded Dan Rivas, who also resigned after brief service. [As I recall, Dan resigned in part because then-President Mathur was instructing him to include negative remarks in the evaluations of those faculty who had been critical of him and the board—remarks that Dan regarded as unwarranted and unjustified.]

In 2000, owing to President Mathur’s staunch support, Howard was appointed permanent Dean of Humanities and Library Services (and, later, of Fine Arts). The details of the appointment evidently raised concerns about “process”:

Three administrative appointments were approved in closed session on Monday…Howard Gensler was appointed dean of humanities and library services at Irvine Valley…[The other appointees] were appointed with unanimous votes, but Gensler was appointed on a split vote of 4-3, with trustees Lang, Marcia Milchiker and Don Wagner dissenting…“I personally haven’t heard anything negative about the guy himself, but there were questions raised about process that I didn’t get fully answered,” said Wagner. (Irvine World News, 6/22/00)

Process problems notwithstanding, then-president Mathur exclaimed that Howard was his “first choice.”

Howard and Raghu’s “top secret plan”:

About a year ago, faculty began hearing about a massive project that would provide facilities for Fine Arts (and fish). The word was that Howard was developing the project with the blessing and encouragement of his mentor, president (now chancellor) Mathur.

Howard eventually provided Chancellor Mathur with a “report” concerning the project on May 23, 2002. According to my sources, then, in early June, Howard and Raghu met with three Board Majoritarians, including Wagner, to discuss the project. (Ask Dot.)

That’s about when the L.A. Times caught wind of it. On June 15, the Times reported

Irvine Valley College officials are quietly trying to find investors for a private hotel, entertainment and office complex on campus that could cost as much as $800 million, officials confirmed this week…As described in recent meetings among campus officials, the project would include a hotel, a multistory parking structure, two 2,000-seat theaters, office buildings, a sound stage and a lake, replacing orange groves and an athletic field at the southern end of campus…The scope of the privately funded, for-profit project—whose cost estimates nearly double Staples Center in downtown Los Angeles—is believed to be unprecedented, not only for a community college, but for any public university in the state…The cost would be enough to build two community colleges, said Kirsten McIntyre, spokeswoman for the California Community Colleges Chancellor’s Office, which was unaware of the proposal…The project is a long way from reality and would have to be approved by trustees for the South Orange County Community College District, which includes Irvine Valley and Saddleback colleges. [My emphases.]

According to the Times, some college employees had doubts about the project: “they don’t understand how the two-year college benefits from such a deal. ‘It would be a commercial enterprise that would not be a benefit to our students,’ said Jan Wyma, Irvine Valley’s choral director.”

The Times reported that Dean Gensler was the man behind the plan and that Mathur was aware of it. Glenn Roquemore, president of IVC, however, said that he hadn’t yet received a proposal.

The scope of the Gensler/Mathur venture was truly stunning:

The proposal has changed over the months, but the basic plan calls for construction on 25 to 35 acres…Several sources said Gensler was pitching the deal to investors as a 99-year lease, and that it would include a Hilton or Hyatt hotel with conference center facilities, restaurants, a four- or five-story parking structure, an office building of several stories, the theaters, an art museum, an observatory and a building with sound stages for TV and film…Also contemplated are a movie complex and soccer stadium.

Massive unbeknownstitude:

City officials were miffed about all of this secret planning. The Times quoted an Irvine official who said: “Any construction not associated with the college’s educational mission must be approved by Irvine.” Nevertheless, “she had not heard of the proposal.”

Three days later, the Register weighed in with a story that presented Howard’s project—now described as involving a paltry $463 million—in a less sympathetic light:

Board members interviewed said they were surprised at the planning that has gone into Gensler’s vision and that they should have been informed about it earlier…“Apparently this was really being pursued by just a few people unbeknownst to other members of the board,” said trustee Dave Lang…One instructor described the project as “absurd” in that it “flies in the face of the college’s long-term planning.”

During the Board Meeting of June 24th, trustees decided to pull the plug on the whole business:

Irvine Valley College trustees got their first official look Monday night at a controversial proposal to develop a $463 million entertainment complex on campus–and decided they wanted no part of it… “The feeling was that the proposal that came to us did not sufficiently meet the needs of the college and the students,” said board president Don Wagner, who said trustees first learned of the project in the press…“It came to us as a take-it-or-leave-it proposal, and we are going to leave it.”…. (OC Register, June 25, 2002; my emphasis)

On the 25th, the Times quoted Dorothy “Dot” Fortune, who carped that the Gensler/Mathur project would give “away half the land at IVC.”

Howard, however, defended his project; it would, he said, make IVC “one of the most important cultural centers in Southern California.”

Nonagenarian takes plan elsewhere:

The Times eventually reported the proposed project’s builder:

The complex was to be built by the Newport Financial Group of Newport Beach. One company figure is Charles Ross, 91, of Laguna Woods, who proposed a similar project at UC Riverside, without success, Fortune said…Ross said Monday he would not discuss the plan, but that if the district turned it down, he would take it elsewhere.

In an article for the Irvine World News on the 27th, Wagner is again reported as saying that “trustees first learned of the project after the top secret plan was leaked to the press.” Well, no, according to my sources, he and two other Board Majoritarians heard about the “top secret plan” two weeks before the Times report. C’mon Don!

Some newspaper articles claimed that, on campus, the project was called “the Howard Hilton.” In truth, it had been dubbed “Howie World” by the Chevy Chase fans who have always dominated IVC.

“One has to wonder…”

On the 30th, Times editorial writers offered a harshly critical perspective on “the Howard Hilton”:

Irvine Valley College’s mission statement…[says that the] college exists to provide quality education for students…The document doesn’t say anything about leasing a huge chunk of the campus to a private developer for a $500 million entertainment and office complex…That’s why people were caught off-guard earlier this month when word surfaced that an IVC dean had been meeting with a developer who wanted to build a massive, for-profit venture. The trustees of the SOCCCD are to be commended for putting the educational purpose of the district first by rejecting the plan last week before it could gather more momentum…The proposal was out of sync with the city of Irvine’s general plan and existing zoning. The city envisioned the orange groves…as one day hosting recreational facilities and college-related construction—not hotels, parking garages and a Hollywood production lot. City officials hadn’t had a chance to review the proposal, and from what it suggested, many of the plan’s elements also clashed with zoning in the area…The proposal also was at odds with IVC’s own planning process. Community colleges are required to create a master plan that describe how they intend to grow. There’s nothing in IVC’s long-range planning that was even remotely close to the proposal that was submitted to the board by Howard Gensler…College deans have a lot of clout, but one has to wonder how this kind of major campus land-use negotiation got to the stage it did. It probably should have been handled in the first place at a higher level of administration….

Hey, yeah! Then, on July 9, IVC issued an odd little press release. It announced plans to construct a modest “Performing Arts Building”:

Irvine Valley College submitted plans to the state…for the construction of a 400-seat Performing Arts Building… The…Building has been long in development as part of Irvine Valley’s Educational and Facilities Master Plan to unify campus services and to meet a growing demand by students and the community. The Educational and Facilities Master Plan and, in particular, the Performing Arts Building, is wholly separate from a recent $450 million proposal made by Irvine Valley Humanities Dean, Howard Gensler, who worked with a private investor to develop a possible alternative campus building project…

We at Dissent feel just awful about the unceremonious kiboshery of the “Howard Hilton.” I, for one, was really lookin’ forward to floatin’ around on that lake.

Well, at least we can name Howard our “Administrator of the Year”!

Congratulations Howard!

Result of district's appeal of Bauer v. Sampson (2001)

Appellate decision

See also amended, Oct. 15:
Amended

     Result of the district’s appeal re Bauer v. Sampson (1999), August 15, 2001

     (You may wish to skip down to “conclusion,” 4/5 of the way down the page. –RB)

BAUER v. SAMPSON

Roy BAUER, Plaintiff-Appellee,v. Cedric A. SAMPSON, Defendant-Appellant. 

Nos. 99-56964, 00-55408

Argued and Submitted May 8, 2001 – August 15, 2001

Before: RYMER, HAWKINS, and GOULD, Circuit Judges.

David C. Larsen (argued) and Robert E. King, Rutan & Tucker, Costa Mesa, California, for the defendant-appellant.Carol A. Sobel (argued), Law Office of Carol A. Sobel, Santa Monica, California, for the plaintiff-appellee.

Cedric Sampson, Chancellor of the South Orange County Community College District (“SOCCCD” or “the District”), appeals a grant of summary judgment in favor of Roy Bauer, a tenured professor of ethics and political philosophy, in Bauer's 42 U.S.C. § 1983 case. Sampson contends that: (1) the District's policy against workplace violence is facially constitutional; (2) the District's policy against workplace violence is constitutional as applied to Bauer; (3) the District's policy against racial discrimination or harassment is constitutional as applied to Bauer; and (4) Bauer is not entitled to attorney's fees, neither as awarded nor at all.

FACTS AND PROCEDURAL HISTORY

Bauer is a tenured professor of ethics and political philosophy at Irvine Valley College (“IVC”), one of two campuses comprising the District, which is located in Orange County, California. As the District's Chancellor, Sampson oversees IVC and its sister school, Saddleback College. Sampson, upset at writings and illustrations prepared and circulated by Bauer, sought to discipline him, order him not to make such writings or illustrations in the future, and force him to undergo counseling.

The writings and illustrations were prepared during a traumatic time for IVC and the District. Evaluating the District, an independent team of investigators from the Accrediting Commission for Community and Junior Colleges (“the Accrediting Commission”), noted that “the college [IVC] and the district have experienced much turmoil in the past several years.” The Accrediting Commission attributed the turmoil partially to Orange County's financial troubles and primarily to a four-to-three split on the District's Board of Trustees (“the Board”). The report prepared by the Accrediting Commission characterized the situation thus: “A high-profile, often controversial group of trustees [the majority of four] felt obliged to involve itself actively in the day-to-day operations of the district and of the colleges far beyond the traditional role for trustees.” The Board's increased involvement allegedly resulted in the retirement of a chancellor, the resignation of two college presidents, and other attrition. Eventually, the Board appointed an acting President for IVC, Raghu Mathur, in, according to the Accrediting Commission, “a manner viewed by many as intrusive and by all as controversial.” Despite the controversy surrounding his appointment, Mathur was made the permanent President of IVC.

Bauer did not approve of Mathur's appointment and many of the Board's other actions. He voiced his disapproval in a campus newspaper called “Dissent,” which he published and circulated himself under fictitious by-lines. Four writings and two illustrations from “Dissent” are at issue in this case:

Writing 1: (November 2, 1998 issue) “I, for one, have etched the name of Sherry ‘Realpolitik’ Miller-White and others of her ilk on my permanent shit list, a two-ton slate of polished granite which I hope to someday drop in Raghu Mathur's head.”

Writing 2: (November 9, 1998 issue) Commenting on a remark by someone at a public meeting of the Board that those present were “the very best people in the district,” stating, “In a room like that, no decent person could resist the urge to go postal.”

Writing 3: (November 9, 1998 issue) A fantasy description of a funeral for a district trustee, who was the subject of a heated recall campaign, at which the other trustees and President Mathur are asphyxiated by “a lurid gas emanating from the Great Man's gaping mouth.”

Writing 4: (November 16, 1998 issue) Satirizing President Mathur's policies by writing: “[W]e at Dissent announce the founding of the Milosevich-Mathur Academic Integrity Matrix. I couldn't think of a more annoying business ed sounding type word than ‘matrix;’ besides, it permits a satisfying acronym: MAIM.”

Illustration 1: (November 16, 1998 issue) “Tales of the Backdoor Gooster.” Illustrates a story of underhanded tactics used by President Mathur in creating an “enemies list” and then beheading his enemies.

Illustration 2: (November 23, 1998 issue) “Quick the Downsizers are Coming Again!” Accompanies an article on micromanagement, discussing the anticipated “downsizing” of IVC. Shows three shrunken people assembling a rifle, with one pointing it outward.

Sampson responded to these writings and illustrations by letter, claiming that they violated the District's policies on workplace violence and racial discrimination or harassment. Sampson “strongly urge[d]” Bauer to participate in the District's Employee Assistance Program to “[deal] with [his] feelings of anger,” told Bauer that he was expected to comply with the Board's workplace violence and racial discrimination or harassment policies, and called Bauer in for a meeting.

At the meeting, Sampson told Bauer that the writings and illustrations violated the Board policies on workplace violence and racial discrimination or harassment and that a negative entry was being placed in his personnel file. This meeting was memorialized in a letter, which directed Bauer to: (1) “avoid any form of discrimination against or harassment of SOCCCD employees as described in Board Policy 4000.5”; (2) “immediately cease all verbal threats and violent behavior overtones as required in Administration Regulation 4000.3”; and (3) “[s]chedule a minimum of two meetings with the employee assistance counselor provided by the District, or make similar arrangements with another counselor approved by the Vice Chancellor [of] Human Resources, and report, in writing, that you have met the counselor. The confirming letter will become part of the District's record and your personnel file.” The letter warned that failure to comply with its terms “would be grounds for more severe discipline.”

Rather than adhere to these terms, Bauer brought suit in the district court, seeking declaratory and injunctive relief as well as damages based on four causes of action: (1) abridgement of his free speech rights, in violation of First and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, and Article I, section 2 of the California Constitution; (2) abridgement of his right to petition, in violation of the First Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, section 3 of the California Constitution; (3) abridgement of his right to equal protection, in violation of the Fourteenth Amendment to the United States Constitution, 42 U.S.C. § 1983, and Article 1, section 7 of the California Constitution; and (4) violations of the whistle-blower protections of California Labor Code § 1102.5.

The district court granted Bauer preliminary injunctive relief, ordering Sampson (1) not to enforce the workplace violence and racial discrimination or harassment policies against Bauer and (2) to withdraw the directive for Bauer to undergo counseling.1

After discovery, Bauer moved for full summary judgment, which the district court granted as to his first two causes of action-the free speech and right to petition abridgements premised on his federal constitutional rights enforced through § 1983. The claim based on his equal protection rights was dismissed as surplusage, the claim based on California labor law denied, and the request for declaratory judgment ruled moot. Sampson timely appealed.2

Bauer filed a motion to amend the judgment to include attorney's fees, which the district court granted. The court determined the fee rate for Bauer's counsel to be $375 per hour, for a total fee award of about $125,000. Plaintiff's costs came to just under $1700. Sampson timely appealed the fee and cost award as well. We have jurisdiction under 28 U.S.C. §§ 1291 and 1292(a)(1).

STANDARDS OF REVIEW

 A grant of summary judgment is reviewed de novo.  Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). In the civil rights context, attorney's fee awards made pursuant to 42 U.S.C. § 1988 are generally reviewed for an abuse of discretion.3  See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); LSO, Ltd. v. Stroh, 205 F.3d 1146, 1160 (9th Cir.2000).

ANALYSIS

I. Facial Challenge

Board Policy 4000.3 defines workplace violence as “verbal threats, violent behavior or physical conduct which interferes with the employee's safety in the workplace.” Administrative Regulation 4000.3 implements the policy “by defining its components and assigning responsibilities for carrying out the policy.” Administrative Regulation 4000.3(1) lists two definitions of “workplace violence”:

a.  Workplace violence is defined as verbal threats, violent behavior or physical conduct, which interferes with employee's safety in the workplace.

b. Workplace violence includes, but is not limited to, making written, physical, or visual contact with verbal threats or violent behavior overtones.

 In Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982), the Supreme Court articulated a standard for First Amendment facial overbreadth and vagueness challenges:

In a facial challenge to the overbreadth and vagueness of a law, a court's first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct. If it does not, then the overbreadth challenge must fail. The court should then examine the facial vagueness challenge and, assuming the enactment implicates no constitutionally protected conduct, should uphold the challenge only if the enactment is impermissibly vague in all of its applications.

 Sampson argues that the District's workplace violence policy does not reach constitutionally protected conduct because it only prohibits “threats” of violence. However Administrative Regulation 4000.3(1)(b) extends past “threats” to also proscribe expression with violent “overtones.”

 “In general, threats are not protected by the First Amendment.” Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 371 (9th Cir.1996). As Lovell explains:

We have set forth an objective test for determining whether a threat is a “true threat” and, thus, falls outside the protection of the First Amendment: “whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.”

90 F.3d at 372 (quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990)).

Because some expression with violent “overtones” would not offend this reasonable person standard (i.e., would not be a “true threat”), Administrative Regulation 4000.3(1)(b)'s proscription violates the First Amendment under Village of Hoffman Estates, 455 U.S. at 494-95, 102 S.Ct. 1186. Simply put, a substantial amount of “overtones” are not “threats.” Therefore, the second definition of workplace violence facially violates the First Amendment. Since Board Policy 4000.3 and Administrative Regulation 4000.3(1)(a) prohibit only “verbal threats ․ which interfere[ ] with employee's safety in the workplace,” these definitions are facially constitutional.

II. “As Applied” Analysis

Sampson's admonitory letter to Bauer directed him to “avoid any form of discrimination against or harassment of SOCCCD employees as described in Board Policy 4000.5” and “immediately cease all verbal threats and violent behavior overtones as required in Administrative Regulation 4000.3.” As explained above, it was unconstitutional for Sampson to attempt to forbid expression with “violent behavior overtones” that fell short of being a “true threat” (Administrative Regulation 4000.3(1)(b)). However, it is facially constitutional to regulate “true threats” as do Board Policy 4000.3 and Administrative Regulation 4000.3(1)(a). Additionally, Bauer concedes that the discrimination and harassment regulation is facially constitutional.4  Therefore, we next consider whether the prohibitions on racial discrimination or harassment and violent threats were applied to Bauer in a constitutional manner.

Sampson based his racial discrimination or harassment charge on Bauer's use of the name “Mr. Goo” for IVC President Raghu Mathur. In a letter, Sampson told Bauer that his “misuse” of Mathur's first name was “dehumanizing and insulting.” Sampson contends that the name is a play on the pejorative term “gook” and the fact that “goo” means “excrement” in Hindi. Bauer claims that the name is simply a play on the similarity between Mathur's first name, Raghu, and that of a cartoon character, Mr. Magoo. Sampson based his workplace violence charge on Bauer's “verbal threats and violent behavior overtones.”

We agree with the district court's analysis that the policies were unconstitutionally applied to Bauer because “though at times adolescent, insulting, crude and uncivil, Bauer's publication focuses directly on issues of public interest and importance.” We also agree with the district court 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.

A. Protected Expression

 Expression involving a matter of public concern enjoys robust First Amendment protection.  “Whether a public employee's speech involves a matter of public concern depends upon ‘the content, form, and context of a given statement, as revealed by the whole record.’ ”  Cochran v. City of Los Angeles, 222 F.3d 1195, 1200 (9th Cir.2000) (quoting Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).  “A public employee's speech or expressive conduct deals with a matter of public concern when it ‘can be fairly considered as relating to a matter of political, social, or other concern to the community.’ ”  Id. (quoting Voigt v. Savell, 70 F.3d 1552, 1559 (9th Cir.1995)). Sampson concedes that Bauer's expression dealt with matters of public concern, arguing not that the expression is unprotected, but rather that either (1) the expression loses its protected status because it constitutes “true threats” or (2) the District's interests as an employer in regulating the expression outweigh Bauer's First Amendment rights as an employee.

B. “True Threat” Analysis

 “[T]he constitutional guarantee of free speech ․ does not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action that is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 446, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969).  “Whether a particular statement may properly be considered to be a threat is governed by an objective standard-whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent of harm or assault.”  United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir.1990).  “Alleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.”  Id.

 We agree with the district court's 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.”  (Emphasis in original). Under the reasonable speaker test, these writings would not be perceived as “true threats.” They were made in an underground campus newspaper in the broader context of especially contentious campus politics.

Sampson argues that the expression takes on a more insidious tenor when considered in the overall context of Bauer's other behavior on campus. Sampson alleges that Bauer: (1) had verbal run-ins with his supervisor and other District employees more sympathetic to the administration; (2) told his supervisor, “You and Mathur are going down”; (3) told a co-worker, “Your day has come,” after the co-worker mocked a friend; and (4) referred to Mathur and an African-American Trustee as “the dark side.” Sampson has not, however, alleged that Bauer has ever been physically abusive or violent on or off campus. Nor did Sampson base his disciplinary action on any of these incidents; it was based on the six writings found in “Dissent.”

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 the district court that there is simply no way a reasonable reader would have construed the writings and illustrations to be “true threats,” even if that reader were aware of all of the other conduct alleged by Sampson.

C. The District's Interests as an Employer

 [T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case [alleging First Amendment infringement] is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

Pickering v. Bd. of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). In order to prevail, a public employee must first show that his statements are constitutionally protected.  Johnson v. Multnomah County, 48 F.3d 420, 422 (9th Cir.1995). Once a plaintiff shows that his statements were of public concern and that the statements were a substantial motivating factor for the disciplinary action taken against him, the burden shifts to the defendant to show that its legitimate administrative interests outweigh the plaintiff's First Amendment rights.  Gilbrook v. City of Westminster, 177 F.3d 839, 866-67 (9th Cir.1999).  “This issue is one of law and a determination is to be made by the court.”  Cochran, 222 F.3d at 1200 (citing Connick v. Myers, 461 U.S. 138, 148 n. 7, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983)).5

As discussed above, Sampson concedes on appeal that Bauer's expression was about a matter of public concern. Sampson also concedes that the expression was a substantial factor in causing the discipline upon which Bauer's suit is based. Therefore, the only issue is whether the District's interests as an employer outweigh Bauer's First Amendment rights.

 Pickering “requires full consideration of the government's interest in the effective and efficient fulfillment of its responsibilities to the public.”  Voigt, 70 F.3d at 1561. In Brewster v. Bd. of Educ., 149 F.3d 971, 980-81 (9th Cir.1998), we listed five factors for use in the Pickering balancing analysis: (1) whether the employee's speech disrupted harmony among co-workers; (2) whether the relationship between the employee and the employer was a close working relationship with frequent contact which required trust and respect in order to be successful; (3) whether the employee's speech interfered with performance of his duties; (4) whether the employee's speech was directed to the public or the media or to a governmental colleague; and (5) whether the employee's statements were ultimately determined to be false.  “Because the Pickering balance necessarily involves a fact-sensitive inquiry involving the totality of the circumstances, no single factor is dispositive.”  Gilbrook, 177 F.3d at 868.

 Under the Pickering balancing analysis, as elucidated by Brewster, the District's interests as an employer do not outweigh Bauer's First Amendment rights. First, Bauer's expression no doubt created some disharmony among his colleagues, especially those more sympathetic to the administration. In light of the Accrediting Commission's report, however, 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. Second, given the nature of academic life, especially at the college level, it was not necessary that Bauer and the administration enjoy a close working relationship requiring trust and respect-indeed anyone 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. Third, Sampson has not shown that Bauer's speech had any negative impact on Bauer's teaching or other professional responsibilities. Fourth, Bauer's expression was disseminated through “The Dissent,” which was distributed exclusively to the District community. Finally, fifth, Bauer's expression was clearly opinion, not factual assertions that could be proven false.

The district court properly conducted its Pickering balancing analysis. We agree that Bauer's First Amendment rights clearly outweigh the District's interests as an employer in silencing his expression.

III. Attorney's Fees

Sampson challenges both Bauer's entitlement to fees under 42 U.S.C. § 1988 and the amount awarded by the district court.

A. “Special Circumstances”

 Plaintiffs in § 1983 actions “should ordinarily recover an attorney's fee unless special circumstances could render such an award unjust.”  Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968). We have a two-prong test for determining such special circumstances, “(1) whether allowing attorney's fees would further the purposes of § 1988 and (2) whether the balance of the equities favors or disfavors the denial of fees.”  Gilbrook, 177 F.3d at 878.

 Sampson argues that three “special circumstances” warrant a departure from the usual fee award rule in this case: (1) this is a case of first impression, so the public benefits from full litigation; (2) Bauer could have found a lawyer without the fee award inducement because of the beneficial publicity generated by the case; and (3) Sampson litigated in good faith. All three arguments fail to rise to the level of a “special circumstance.”

We need not decide whether the first two of these grounds would qualify as a “special circumstance” because they lack a factual basis in any event.

This is not a case of first impression. Both the Supreme Court and this circuit have published widely on the free speech rights of academics, the requirements for a statement to be a “true threat,” and the invalidity of proscriptions on potentially violent expression that falls short of being a “true threat.” Though these particular facts have not been litigated, the legal principles which govern this case were extant at its inception.

It also seems unlikely that Bauer could have gotten a lawyer to represent him on his own. The attorney's fees in this case totaled over $100,000-an attorney would be hard-pressed to provide that magnitude of representation just for beneficial publicity. The purpose of § 1988, allowing citizens to present constitutional claims when they have been wronged by governmental actors, would be frustrated by forcing a plaintiff such as Bauer to find an attorney willing to take on a decidedly local § 1983 case at a cost to himself of over $100,000.

 Finally, good faith litigation is not enough, on its own, to warrant a finding of “special circumstances.”  Williams v. Hanover Hous. Auth., 113 F.3d 1294, 1301-02 (1st Cir.1997) (“The circuits are in agreement ․ that defendants' good faith reliance on settled law ․ is not a ‘special circumstance’ warranting a denial of attorney's fees under § 1988.”).

The district court was correct in ruling that this case does not present “special circumstances” justifying a decision not to award attorney's fees to Bauer.

B. Hourly Rate

 Sampson argues that the hourly rate determined by the district court for Bauer's counsel, $375 per hour, is excessive. The district court followed the proper procedure for such a determination under Davis v. City and County of San Francisco, 976 F.2d 1536, 1545-46 (9th Cir.1992), vacated in part 984 F.2d 345 (1993), considering declarations filed by local attorneys on behalf of both Sampson and Bauer. Reviewing these declarations, we cannot say that the district court abused its discretion in determining the hourly rate.

C. Number of Hours

 Sampson argues that Bauer was not sufficiently successful under Sablan v. Dept. of Fin. of Commonwealth of N. Mariana Islands, 856 F.2d 1317, 1325 (9th Cir.1988), and Hensley to merit a full fee award. Sampson argues that because Bauer filed five claims and only received relief from the district court as to two, his suit was only forty percent successful.

Such reasoning cannot stand under Sablan, which teaches that courts “must determine what [the plaintiff] sought to accomplish in bringing his lawsuit and then determine whether the lawsuit was causally linked to the relief actually obtained.”  856 F.2d at 1325. Here, Bauer asked that the two Board policies not be applied to his expression, that Sampson's reprimanding letter be removed from his personnel file, and that he not undergo counseling. His suit accomplished all of these goals, a result preserved in this appeal. It simply is not material under Sablan or Hensley that Bauer alleged additional causes of action which were dismissed on the merits or as surplusage or mooted by his victory.

Sampson also quibbles with the district court's calculation of Bauer's counsel's total hours. However, Sampson has not presented us with concrete evidence of which hours were overbilled, resulting in an abuse of discretion by the district court. We note that Bauer's attorney agreed to a voluntary twenty-hour reduction before the district court even addressed the issue. The district court did not abuse its discretion in calculating Bauer's attorney's hours.

CONCLUSION

The district court correctly ruled that Administrative Regulation 4000.3(1)(b) is unconstitutional on its face because it prohibits speech with violent “overtones” that falls short of being threatening. However, the district court erred in holding that the entire workplace violence policy is facially unconstitutional: both Board Policy 4000.3 and Administrative Regulation 4000.3(1)(a) pass facial analysis.

The district court correctly ruled that the Board's policies on racial discrimination or harassment and workplace violence are unconstitutional as applied to Bauer. The district court did not abuse its discretion in deciding to award Bauer's attorney's fees, setting the rate for those fees, or in calculating the number of attorney hours to be paid.

AFFIRMED IN PART; REVERSED IN PART. Appellee is awarded costs on appeal.

I concur in sections II.A, II.B, and III of the majority's analysis.

I respectfully dissent from section I because, in my view, Administrative Regulation 4000.3(1)(b) is not facially unconstitutional. I agree that, standing alone, the prohibition on expression with “violent behavior overtones” is unconstitutionally overbroad. However, this prohibition cannot sustain an overbreadth challenge because it does not reach a “substantial amount of constitutionally protected conduct.” See Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494-95, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982).

I also respectfully dissent from section II.C and decline to walk in the path of error taken by the majority. These are hard cases because of the great weight and respect that properly must be given the dictates of the First Amendment. Nevertheless, the United States Supreme Court has pointed to some limits in the context of employment. See Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968).

As I see it, the evidence that Sampson submitted in opposition to Bauer's motion for summary judgment raised genuine issues of material fact concerning the ways in which Bauer's writings and illustrations, tinged with violence, affected the campus community, the peace of mind of administrators, faculty, and students, and the overall well-being of the college.1  The district court disregarded these issues, giving greater weight to the values underlying free speech. Yet, under Pickering the Supreme Court requires a balancing of facts relating to disruption in the employment context; a more fact-intensive inquiry was appropriate in light of the evidence submitted opposing summary judgment. In my view, the district court should have addressed the competing interests of Sampson and Bauer in a trial or at least in an evidentiary hearing where some factual determinations could be made, before conducting its analysis under Pickering and concluding that Bauer's free speech interests outweighed Sampson's legitimate administrative interests in restricting such speech.

The Pickering balancing analysis requires a factual inquiry into factors concerning: (1) whether the speech at issue disrupts harmony among co-workers; (2) the nature of the relationship between the employer and employee; (3) whether the speech inhibits the speaker's job performance; (4) to whom the speech was directed; and (5) the accuracy of the speech. Brewster v. Bd. of Educ., 149 F.3d 971, 980-81 (9th Cir.1998) (setting forth five factors for use in the Pickering balancing analysis). Here, viewing the evidence in the light most favorable to Sampson and drawing all permissible inferences in his favor, there are serious fact issues concerning the extent and impact of the disruption resulting from Bauer's writings and illustrations.

We should consider declarations submitted in support of Sampson. For example, an economics professor declared that he had been “discouraged from pursuing administrative jobs because of Mr. Bauer and his disruptive presence.” Another professor declared that she “felt physically threatened by the violent newsletter sequence which underlies this litigation, some of which target[ed] [her] personally.” Sampson declared that he placed restrictions on the “Dissent” only when “the publication became increasingly violent, suggesting physical harm to various employees, including Dr. Raghu Mathur, the College President.”

For me, the most significant declaration is from Dr. Lipian, a forensic psychiatrist who, based in part upon a review of the “Dissent,” concluded that: (1) “the District has a legitimate concern that Mr. Bauer has the potential, if not evaluated and possibly treated, of engaging in increasing forms of violent speech, and possibly violent conduct”; (2) “[i]n the absence of evaluation and treatment, [Mr. Bauer's] escalating interest in, discussion of, and threat to employ violent actions and violent tools ․ is likely to worsen”; and (3) “Mr. Bauer's anger is likely to intensify․  [And] [a]ction upon unambiguously stated fantasies of revenge and destruction becomes an increasingly ominous risk.” This declaration of a qualified forensic psychiatrist was given weight by the college and warrants more consideration than it received from the district court.

In an era when a wave of seemingly random, but frequent, violence has engulfed schools across our country, the district court gave too little attention to risks of ripening violence that may reasonably be inferred from the expert's submission. For Dr. Lipian to note an “increasingly ominous risk” of action based on “unambiguously stated fantasies of revenge and destruction” is no small matter, though one finds no mention of it in the district court opinion, or for that matter, in the majority's analysis. Accepting Dr. Lipian's statement as true for purposes of summary judgment, the college's response to this risk was moderate, reasonable, and restrained. The college did not censor Bauer, nor terminate him, but only sought to require that he submit to psychological counseling. Such a course was recommended by Dr. Lipian. Giving all inferences to Sampson, I decline to accept the views of the district court that risks of violence or other disruption must be disregarded without a trial or an evidentiary hearing to permit the district court to assess the evidence after determining credibility of witnesses.

I recognize that the college and the school district were experiencing difficulties when Bauer published the writings and illustrations at issue. But, I believe that, if Sampson's evidence is credited, the evidence supports the conclusion that Bauer did more than raise awareness of pre-existing problems. Rather, giving all reasonable inferences to Sampson, a trier of fact might conclude that Bauer was responsible for more than his share of the tension on campus.

Pickering “requires full consideration of the government's interest in effective and efficient fulfillment of its responsibilities to the public.” Voigt v. Savell, 70 F.3d 1552, 1561 (9th Cir.1995). The college owed a duty to faculty and students to exercise the utmost care to avoid the possibility of violence and irreparable harm. Cf. LaVine, 257 F.3d 981. We cannot from this record say whether there was, as Dr. Lipian explicitly said, an “increasingly ominous risk” of violence that outweighed Bauer's free speech interests. Summary judgment was premature and inappropriate.

FOOTNOTES

1.  The district court also ordered that Bauer be excused from posting a bond or other security to obtain the preliminary injunction.

2.  The district court did not award Bauer any damages and he has filed no cross-appeal, so damages have dropped out of the case.

3.  Section 1988 is the statutory provision governing fee awards for successful § 1983 plaintiffs.

4.  Board Policy 4000.5 prohibits discrimination or harassment on the basis of certain listed characteristics “pursuant to applicable federal and state statutes, guidelines, and regulations, and district policies and regulations” in any District employment process, position, program, service, or activity. The district court rejected a facial challenge to this policy, a decision Bauer does not appeal.

5.  We note the dissent's concern that the district court did not draw “all permissible inferences” in Sampson's favor in conducting its Pickering analysis at summary judgment. Under the plurality opinion in Waters v. Churchill, 511 U.S. 661, 677, 114 S.Ct. 1878, 128 L.Ed.2d 686 (1994), when conducting Pickering balancing, “courts look to the facts as the employer reasonably found them to be.”  (Emphasis in original). Unlike Waters, the facts of this case are not in dispute. Here the parties agree precisely on the expression at issue-the six writings.  Connick and Waters teach that in such a circumstance the application of Pickering to settled facts is the province and duty of the court. We are not to defer to the governmental employer's analysis of the facts, just the governmental employer's reasonable determination of the facts. In any event, Dr. Lipian's declaration is largely conclusory and is not based on any personal interview or examination of Bauer.

1.  Although the majority urges in its footnote 5 that the “parties agree precisely on the expression at issue-the six writings,” the majority fails to address evidence in the record about the consequence of those writings for the campus. The majority does not even mention the government employer's submission of its expert psychiatrist's view that Bauer had an escalating interest in “violent actions and violent tools” and was sufficiently disturbed to require counseling. Recognizing that schools must have leeway to take protective or precautionary steps to counter risks of violence, we have recently upheld, against First Amendment challenge, a high school's suspension of a student who submitted a violent poem with descriptions of classroom shooting.  LaVine v. Blaine Sch. Dist., 257 F.3d 981 (9th Cir.2001). We should show similar tolerance here of the interests of the college, which at least warrant a trial or evidentiary hearing on issues of risks of violence and consequent disruption.

MICHAEL DALY HAWKINS, Circuit Judge: