1999: a plague of “hostility, mistrust, cynicism, and despair”

From Dissent 36, November 8, 1999
[Originally entitled, “The Gavel Queen of South County”]

The Oct. 25 board meeting:

I showed up on time at 6:00 p.m., but the meeting hadn’t started, so I bullshat with the usual suspects, who seemed even grimmer than usual.

At about 7:00, the meeting was finally under way. Trustee Wagner reported that no action had been taken during the preceding closed session.

After Nancy Padberg led us in the pledge, Dave Lang did the invocation, quoting somebody about the “dullard” who waits until events overtake him before he does anything. He was talking about the dullards on the board, I suppose.

Next came public comments. A woman named Nancy read a resolution by the Saddleback Academic Senate that objected to the board’s “unwise” soccer initiative. Why was the board ignoring the recommendations of the faculty? it asked.

The chancellor [Cedric Sampson], with typical galootishness, responded, blandly dismissing the resolution, which he termed “misguided.” Against the notion, voiced by Nancy, that the board is normally obliged to take the advice of the faculty in matters concerning curriculum, he said that the senate makes recommendations, that’s all. He added that he’d respond more fully later on.

Trustees’ reports:

Next came trustees’ reports, always a highpoint. As per usual, trustee Williams seemed terribly pleased with himself. He played to the camera. He reported on the Saddleback College “homecoming” and its “king” and “queen.” At first I thought he was joking, but no one laughed. Goddamit, I thought.

Trustee Milchiker announced that her mom was “taking opera” through the Emeritus Program. Trustee Lang congratulated Lee Haggerty, Saddleback teacher of the year, and IVC’s Bill Hewitt, whose program has achieved “national recognition.”

I noticed that Cedric looked pale and drawn. Earlier that day, in Los Angeles, a federal judge decided that Cedric had indeed violated the Constitutional rights of a certain IVC philosophy professor. El Ced looked bad then, too.

Trustee Wagner was in finger-wagging mode. The Senate’s resolution, said he with utter confidence, was “factually inaccurate.” The board, he proclaimed, is not acting “out of its jurisdiction” at all. It gets to decide about programs.

Referring to the senate, he acknowledged that “the board does not see things the way they do.”

That, of course, was plain.

You’ll recall that Wagner and Padberg, both right-winged foes of teachers unions, were elected in ‘98 thanks to (1) big moneyed support from the Old Guard-controlled faculty union (the rank and file watched in horror) and (2) an absurd Wagberg promise to be the battling anti-airport trustees. Of course, trustees have absolutely no say on the airport. On this night, Mr. Wagner dumped another bucket of this hogwash on everyone, for he asked the Chancellor whether the district has secured an “associate membership” in the anti-airport organization.

Not one to be out-NIMBYed by this upstart, Trustee Frogue reminded everyone in TV land that he, yes he, sponsored a board resolution opposing the airport way back in ’96! He went on to explain that he has been spending part of his Thursday’s at IVC. Hinting at conspiracies, he noted that, during his last visit there, an ASG event “just happened to be cancelled that day.” Oooooh.

He said he bought a pumpkin. He also purchased a hotdog from the Humanitarian Club. (Evidently, the club’s humanitarianism doesn’t extend to animals.) And he visited with the Christian Club. No word on what he bought from them.

Affecting a pained expression, the Froguester noted how hard it was to talk and be heard in front of SSC, what with the loud amplified music. There oughta be an “investigation” into whether that infernal racket disrupts classes, he said. I can’t be sure, but I believe that, at that moment, Steve began to think about that damn pumpkin and what might be inside it. He scribbled a note to himself.

Trustee Padberg spoke of a trustees’ convention she attended in Atlanta. CNN’s Judy Woodruff was there, she said.

Trustee Fortune noted trustee Williams’ “excellent” op-ed piece in the Times. Seconds later, the chancellor echoed the sentiment.

I wondered what [district PR flack] Pam Zanelli was thinking.

In his report, IVC President Raghu “90%” [faculty “no confidence”] Mathur noted that the forensics team had won big again. He talked of sports and the new theatrical production, “Good News.” Naturally, he joined the others in praising the loathsome Williams for his shitty op-ed piece.

Saddleback President Dixie Bullock yammered. She said she was “disappointed” with the Saddleback Academic Senate and its danged resolution.

Next, Saddleback ASG officers busily prepared a production number designed to report on their budget. The Bumptious One started to worry; suddenly, she spat that “the report will not exceed 15 minutes unless it’s very very interesting.” People laughed and Dot looked surprised.

At some point, she declared that item 32—discussion of the speech and advocacy policy—was pulled. Damn! That’s what I had come for!

…I left.

Thornage:

I shoulda stayed. It turns out that Saddleback Academic Senate President Anne “Thorny” Cox clashed big time with the Dotted and Besotted One. Luckily, they’re videotaping these meetings, and so I viewed the whole thing in the comfort of my home. I made popcorn.

Here’s the transcript. It starts with Anne’s Senate report, which objected to the board’s decision, based on Sampson’s alleged “Brown Act” worries, to pull the plug on a long-awaited Saddleback board forum:

COX: The Academic Senate at Saddleback College appears to be a thorn in the side of the board this evening, and I regret that I will continue in that role. [She holds up a document, which she has just distributed among trustees.] This is a memo from the Senate, which I’ve written on their behalf to members of the board of trustees and chancellor Cedric [devilishly pronounced See-drik] Sampson regarding the Board Forum. [She reads:]

On behalf of the Academic Senate, I feel I must convey to you the deep regret and perplexity caused by the decision of the trustees on the recommendation of the chancellor to not participate in the board forum which was to have taken place last Thursday, Oct. 21st. The notion of renewing this long-established practice of an open meeting between faculty, staff, administration and trustees seems particularly urgent in the current climate of the district and the two colleges and has been discussed at some length with several of the trustees since last spring. Indeed, the idea was received most enthusiastically by trustees Padberg and Wagner when I first suggested it last March. Since then, there’s been a great deal of discussion [and] coordination of dates and preferences. For example, trustee Fortune prefers that the forum be limited to Saddleback faculty and staff rather than a district-wide meeting. [Zing!]

But in all of this discussion, the concern of violating the Brown Act was never mentioned by anyone. Indeed, the so-called Brown Act is more accurately called the California Open Meeting Act, and the whole point of a forum is that it is an open, public meeting—completely consistent with the spirit of the Brown Act.

In the report of the Accrediting team that has resulted in the continuation of a warning status of this once-respected college [D’ough!], the direction was very clear. Representatives of all the formally recognize constituent groups—that is, trustees, chief executive officers, administrators, faculty senate and union, classified senate and union, and student government—must come together soon. Their task should be to determine how they will reduce the hostility, mistrust, cynicism, and despair which plague the institution currently, adding that this recommendation requires special emphasis and immediate action.

The report goes on to say that “the team found that there has been minimal contact between the entire board of trustees or chancellor and the college faculty, staff, and mid-managers.” It adds [that] it was especially disconcerting that, following the commission’s action, so many people in leadership positions expended energy denying any responsibility for the situation and blaming the outcome on others.

The original recommendation calling for all segments, including the college and district leadership and the board of trustees, to work together to develop and implement a plan to improve the situation continues to be a high priority. [Time is called.]

COX: “I’ll ask for the same 30 seconds.” [She is referring to the extra 30 seconds that had been granted to trustees when they exceeded their 5 minute limit.]

FORTUNE: [Same] as what?

COX: As the trustees in their reports.

FORTUNE: As the trustees? At your same level? [Fortune snorts or laughs.]

[Anne continues:] The senate believes that a board forum would begin to address this serious and legitimate concern of the Accreditation Commission. The chancellor and the board evidently disagree. And since the answer to the Accreditation Commission is due one week from today, the Academic Senate is respectfully asking the chancellor and the board of trustees [this question:], where is your plan?

Thank you. [Anne takes her seat.]

FORTUNE: I know we would all love to say one thing or another, but I would like to have the 2nd president of the other Academic Senate from Irvine Valley College [speak]. Mr. Peter Morrison—please also take your [report] time.

MORRISON: [We won’t be having] a regular senate meeting this week. I just wanted to let you know that, instead, we are conducting a faculty-wide survey on issues related to the Accreditation reports, and we will be finishing that survey at the end of this week, [forwarding?] our report to the Accreditation Commission at that time. And of course we will be providing you with copies of the results of that survey when it is compiled and collated.

Thanks. [Peter takes his seat.]

FORTUNE: Trustee Williams?

Williams carps about Cox’s letter. “I don’t think,” he says, “that the Academic Senate is in the business of calling Board Forums….” He opines that the time is not yet right for a board forum. Maybe in January.

Trustee Milchiker disagrees; she requests the scheduling of a board forum as soon as possible. Trustee Padberg says that she supports a forum. Nevertheless, she insists that the district or the board has made “great strides” in increasing communication. Both campuses, she adds, are “still respected.”

Trustee Wagner says that he is “surprised” and “saddened” by Cox’s remarks. He complains that his meetings with the senate are now being used “against” him. Though he “seconds” Milchiker’s request to schedule a board forum, he insists that the board must follow “proper procedures.” Such procedures must be observed so no one sues the district or says, “there they go again.”

Next: DOT!

FORTUNE: I would just like to say that I’ve only been on the board three years, but I only remember one forum—which was supposedly to talk about reorganization [no, it wasn’t]—in 1997 in the summer. I know there was a meeting that the then-President of Saddleback College called to talk about the potential use of the baseball stadium or diamond for a pro team. That wasn’t a board forum.

We board members have been working—I would almost use the word “religiously”—for a year to go to division meetings, to speak to faculty. We’ve gone to Academic Senate meetings; we’ve met hours and hours and hours with Academic Senate officers; and you know it’s all true, with different members here, and so I think it is exceedingly unfair to present this kind of letter with very minimal subterfuge. It’s sort of blackmail. “The accreditation visit is coming in a week, and we don’t have a plan.”

Our plan has been ongoing for since last December to do all we could to have better communication with the people. For that to be turned on its head and for President Cox to attack our chancellor’s reading of what is a proper way to get people together—is just astounding to me.

COX: [calmly but insistently:] It’s not an attack…It’s not—

FORTUNE: Excuse me. You are out of order! [Fortune becomes louder as Cox tries to respond:] You, you, you are out of order! You, you are out of order! [She pounds her gavel as she bellows:] I will recess [boom] this [boom] meeting [boom]. Because you [boom] are [boom] out [boom] of OVER [sic]!

As Cox tries to respond [I can’t make out what she’s saying], Dot bellows:

FORTUNE: No, the process of deranging Accreditation is what you are interested in, and you are out of order!

COX: If my report—

FORTUNE: Would you, would you, would you—would you please [slam!]. Meeting is out—is going to RECESS, and if I have to, uh, we will take 5 minutes—and if you cannot contain yourself—

COX: [in an ordinary speaking voice:] I’m perfectly [contained]…

FORTUNE: [roaring:] If you cannot contain yourself, you will have to, you will have to leave the meeting. Right now we’re in recess for 5 minutes! [She gets up.] We’ve been talking with you folks, and… [The tape fades out.]

—A few minutes later, the meeting reconvenes. Soon, Sharon MacMillan, president of the faculty union, offers her report, engaging in the usual Old Guard ass-kissing.

She nearly sobs. The college still has a “good reputation,” she cries. Fighting tears, she thanks the board for supporting “our fine institution.”

LISA’S DEPOSITION: A “STRATEGY OF HARASSMENT”

From Dissent 35, 11/1/99 

Slightly updated, 7/10/06 

     On Tuesday, October 5, 1999, IVC English professor Lisa Alvarez was deposed in regard to Roy Bauer’s First Amendment lawsuit. She was represented by attorney Bob Myers, formerly City Attorney of Santa Monica. Also present were Bauer’s attorney, Carol Sobel, and the Chancellor’s attorney, David Larsen. 

     Essentially, Bauer’s lawsuit was a response to an action perceived by him as a first step toward termination. The district (Chancellor Sampson, the Board Majority, Raghu Mathur) was sick and tired of Bauer’s newsletter, which was highly critical of those in power and the ruthless unionists who put them there. And so Sampson and the board went after him. Bauer and his contributors’ satirical writings suddenly were labeled “violent” and “racist.” Bauer was told to cease his violence and discrimination and to seek anger management counseling. 

     Bauer refused to go to counseling or to change his publication. Instead, he and attorney Carol Sobel went to federal court. 

     From the beginning, things went Bauer’s way. Early on, a judge described the district’s action against Bauer as “Orwellian.” Later judges seemed to agree. 

     After much legal wrangling, Bauer prevailed. 

     The district appealed. Bauer prevailed again. 

     This took years. 

     In the course of the litigation, the district deposed several persons, including Bauer’s office mate, English professor Lisa Alvarez. Her deposition is presented below. 

     Here are some facts to keep in mind. 

     Bauer did much of the writing of his newsletters (‘Vine & Dissent), but, in those publications, he also published pieces by colleagues, including Rebel Girl and Red Emma [and occasionally others]. These, of course, are pseudonyms. 

     I’m happy to report that these two individuals continue to write for Dissent, i.e., Dissent the Blog, under the same pseudonyms. 

     Six specific elements of the newsletters were cited, by Chancellor Sampson, as violating the district’s anti-discrimination and “workplace violence” policies. As I recall, two of them were actually authored by Red Emma, though I never disclosed who Red Emma was.

     I think you’ll find the deposition to be interesting.

 CONTENT: 

1. They want to know what she thinks: 

2. On Sampson’s “surprising” declaration: 

3. The clock tower incident: 

4. The Accrediting Team’s report: 

5. Anger, faculty assemblies, raised voices: 

6. Shit list: 

7. Mr. Goo: 

8. “Going postal” deconstructed: 

9. The infamous “MAIM” remark: 

9b. That would be a beheading 

10. Unabauer: 

11. Shared governance and the school chair: 

12. Discomfort, threats, passion: 

13. Lookin’ for dirt: 

14. Civility, fear, petitions: 

15. A hostile work environment: 

1. They want to know what she thinks: 

Q Do you recall what [Mr. Bauer] said…about the excerpts [from Bauer’s newsletter that appeared in Sampson’s letter to Bauer in December of 1998]…? 

MR. MYERS: If you’re asking what Mr. Bauer told Ms. Alvarez, I think that’s an appropriate question. Any commentary that Ms. Alvarez may have made concerning her opinions drawn from reading a newspaper, I don’t think are within the scope of legitimate questioning at this deposition because it may relate to her political beliefs, opinions, and other matters. 

MR. LARSEN: Well— 

MR. MYERS: This is not a forum for the college to find out what other faculty members may think about their chancellor. ….. 

Q Do you recall anything else that Professor Bauer said about the deposition excerpts that were published in the newsletters? 

A Not in particular. 

Q What did you say with respect to those deposition excerpts? …..

MR. MYERS: [To Lisa:] If your comments were your expressions of opinions concerning the excerpts, I’ll object to the question on the basis that it violates the First Amendment of the State and Federal Constitution to inquire into her political commentaries and opinions. 

MR. LARSEN: Are you going to instruct her not to answer? 

MR. MYERS: If that’s the purpose of your question—…to inquire into her opinions about what she thought of the chancellor’s deposition—yes, I will instruct her not to answer. 

MR. LARSEN: Well, I think, Counsel, that I’m entitled—if she made expressions about testimony that’s been elicited in these proceedings, she’s commented on testimony that’s been elicited in these proceedings, I’m entitled to know what those comments on that testimony are. 

MS. SOBEL: Why? 

MR. MYERS: Why? 

MR. LARSEN: Why? Because she’s been designated as a witness. 

MS. SOBEL: To events that occurred long before Chancellor Sampson’s deposition was taken…David, if Chancellor Sampson at [his] deposition said he did not have any idea what the Christian Coalition was—which is I believe something he testified to, which I believe was excerpted in [Bauer’s] newsletter—what relevance does that have to anything—any information Professor Alvarez has that led to the district, now almost a year ago, issuing the disciplinary letters to Professor Bauer that they did? 

MR. LARSEN: Her commentary on evidence in this proceeding is very, very relevant, if nothing else, to show its bias, prejudice. I’m not going to argue with you. If [Mr. Myers is] going to instruct her not to answer, let’s [do] it and we may have a judge decide [the matter]. ….. 

MR. MYERS: It seems to me, Mr. Larsen, that the only point that you have is the bias to the extent she becomes a witness in the proceeding…[B]ut that doesn’t seem to justify some open-ended inquiries into what Professor Alvarez happens to think about the chancellor of the [district]. Maybe we can just agree that…she has disagreements with the chancellor without you using this as an opportunity to inquire into her political beliefs. 

MR. LARSEN: You know, my question is really simple, and I think everyone is trying to twist it, but I’ll ask it one more time. You can either instruct her not to answer or not. 

Q What comments did you make [to Mr. Bauer] about Dr. Sampson’s testimony [i.e., his deposition]? ….. 

2. On Sampson’s “surprising” declaration: 

A Among the comments I made, I said I was going to read the testimony, that I would find it interesting. 

Q Did you read the testimony? 

A Yes, I did. 

Q Okay. What other comments did you make to Mr. Bauer about the testimony? 

A I believe I indicated I was surprised. ….. 

Q Okay. Did you identify any of those statements that you were surprised about? 

A I know I indicated surprise about the chancellor’s professed ignorance about the Christian Coalition, a political action group. 

Q Any others that you expressed surprise at? 

A I believe I indicated surprise at the chancellor’s characterization of a college gathering that I…attended. 

Q Any other statements that you made to him about surprise? 

A I was surprised at the chancellor’s characterization of one of my colleagues, a bearded man [not Bauer]—his characterization of him as “menacing.” 

Q Any other statements that you— 

A None in particular. I think…that in general I was surprised at the sections of the deposition I read…I think that’s an honest, accurate assessment of my response and the comments I made about it. 

Q Did Mr. Bauer respond to your comments? 

A Nothing that I recall in particular. I mean he listened as office mates do. 

3. The clock tower incident: [The “clock tower” incident was a more-or-less impromptu response to rumors that President Mathur planned to transfer his secretary, owing to his unfounded suspicions of her. On the morning in question, two or three Humanities & Languages faculty—not Bauer—quickly organized this show of concern, which led to a discussion with the Chancellor. Bauer heard about the effort and witnessed it, but he was advised by his Brown Act attorney not to become directly involved. Though he helped inform a few people of the event, he also heeded the advice.] 

Q Now, you say you were surprised at a characterization of a college gathering that you attended. What college gathering are you referring to? 

A It was a rather spontaneous gathering of faculty and staff in the A quad by the clock tower, and I’m trying to remember the date, but I cannot. My sense is it might have been last spring, but I’m not sure. 

Q Outside the president’s door/window? 

A Yes. 

Q A spontaneous gathering—How many faculty gathered? 

A I believe the student newspaper indicated it might have been 40 faculty and staff. 

Q This was spontaneous? Everybody just happened to be there at the same time? 

A Perhaps “spontaneous” is imprecise…I was not on campus last year. I was on sabbatical, so I don’t know the nature of communications around this particular event. I received a phone call at home. 

Q So somebody invited you to be there? 

A Yes. [They] suggested that something was happening. 

Q Okay. Who made the phone call? 

MR. MYERS: I object to that question. If you want to ask about comments [people made] about the deposition, that’s fine. Now, you’re inquiring into a political event on campus—who organized it, who was involved with it. And as a state institution, I don’t believe that your client can inquire into these political matters. This is getting pretty far afield. 

MS. SOBEL: I’m going to interpose an objection, too, on behalf of a third party who is not present, but because the First Amendment permits third-party protections to be raised by someone who is present in a proceeding such as this, I’m going to interpose a “First Amendment right of association” objection for whoever it was who telephoned Professor Alvarez. 

MR. LARSEN: Was it Roy Bauer? 

MR. MYERS: Objection to the question. 

MR. LARSEN: Are you going to instruct her not to answer? 

MR. MYERS: Yes. If you want to sit here and violate the constitutional rights of my client, we will object and instruct her not to answer. 

MR. LARSEN: You and I obviously have disagreement— 

MR. MYERS: Let the judge decide. 

MR. LARSEN: Okay. ….. 

Q What surprised you about the chancellor’s characterization of this gathering when you read his testimony? 

A His rather casual dismissal of the concerns of a large [group] of my colleagues. 

Q So you…disagreed with how he viewed the gathering? 

A. …[His] attitude…became obvious. 

Q Now, you said that you were surprised by the characterization of a colleague as “menacing”? 

A Yes. 

Q And what colleague were you referring to? 

A In the deposition, the chancellor mentioned a bearded man in his fifties, I believe. 

Q Okay. Who did you understand him to be referring to? ….. 

A At first, I assumed it was biology teacher and later I revised my…assumption to…the art history professor. 

Q Was Mr. Bauer involved in this gathering? 

A Mr. Bauer was in attendance at the gathering. 

Q And did Mr. Bauer say anything or do anything that you noticed? ….. 

MR. MYERS: What is the relevance of inquiring into people’s political activities at a political event? 

Q This was a public gathering, correct? 

A It…was a public gathering, political in nature. 

Q …Your understanding was the purpose of the gathering was to communicate something to the chancellor? 

A Not necessarily to the chancellor, no. I believe the chancellor happened to be in the college president’s office at the time. It is my recollection that people were surprised to have discovered that Dr. Sampson was in the college president’s office at the time we gathered at the clock tower. 

MS. SOBEL: Counsel, I’m going to object to inquiry about my client’s [i.e., Roy Bauer’s] political activities. I don’t believe this gathering is in any way the basis of any of the charges the district made against Professor Bauer regarding discrimination, harassment, or violent overtones in his writings. ….. 

Q Did Professor Bauer say anything at this gathering? 

MR. MYERS: Objection on the basis that you’re inquiring into areas that are clearly outside the scope of the litigation and designed to inquire into the political activities of a professor at Irvine Valley College. And it’s inappropriate and I instruct the witness not to answer. ….. 

MS. SOBEL: …the chancellor did not observe anything done by Roy Bauer at that event…the district has absolutely no contentions that…anything Professor Bauer did at that incident was in any way part of the charges against him. 

MR. LARSEN [to Lisa]: Well, are you going to refuse to answer the question? 

MR. MYERS: If you would like to ask a question that’s related to her observations of any conduct that might be within the scope of your lawsuit, I’m certainly going to allow her to respond to that question. But these open-ended questions that inquire into political beliefs don’t seem to be narrowly tailored to getting at the information that you need. Since the First Amendment is at stake, it seems to me that you have some duty to narrowly tailor your inquiries to get at the information you need without trampling [on] Professor Alvarez’s First Amendment rights. ….. 

Q What do you recall Professor Bauer doing at this gathering? 

A Standing around. 

Q Was he in any way close to the window? 

A Not to my recollection, no. 

Q Do you recall anything that he said at this gathering? 

A I believe I noticed he said nothing. 

MR. LARSEN: That wasn’t so bad, was it? 

MS. SOBEL: But it took you a long time to get to a direct question. 

MR. MYERS: [To Larsen:] If you ask the narrow questions, we’ll try to accommodate you. ….. 

4. The Accrediting Team’s report: 

Q Have you ever read the evaluation report [of the accrediting team or commission]? 

A I’ve read sections of the evaluation report…I recall reading the cover letter…. 

….. 

Q Did you agree with it? 

MR. MYERS: Hold on a second. What is the relevance of whether or not a faculty member agrees with the evaluation report of an outside entity to this litigation? 

MR. LARSEN: Well, Counsel, it’s an exhibit in these proceedings. She’s a witness—potential witness—in these proceedings. I’m entitled to know if she’s read [the Accrediting report]. Are you going to instruct her not to answer? 

MR. MYERS: You need to do a little better than that, Mr. Larsen…Professor Alvarez is not a party to this litigation. The college, I don’t believe, has a right to use this deposition as an opportunity to find out what faculty members believe about the organization that they work for. So can you do a little better in explaining what the purpose of this inquiry is?…We’re trying to be fair and reasonable here. This is a professor of a college institution. You are representing her employer. You cannot use a deposition as a fishing expedition into Ms. Alvarez’s beliefs about matters unrelated to the litigation…. 

….. 

MR. LARSEN: [I want to ask Ms. Alvarez about] the summary of the evaluation report, which happens to consist of three and a half pages, which she testified she read. My question is, was there anything in the summary that she disagreed with? 

MR. MYERS: The college has no right to know about her beliefs concerning the summary report. 

MR. LARSEN: Are you going to instruct her not to answer, Counsel? 

MR. MYERS: Yes, I am. 

Q [To Lisa:] Are you going to take the advice of your counsel? 

A Yes, I am. 

Q Going to page 4 of the document, [it says] “Though the team was aware of the trouble[d] times.” Did you agree [with the Accreditation team] that there are divisions between factions of the faculty? 

MR. MYERS: Objection…Until you provide a reasonable explanation as to why you want to subject a member of the college faculty to a general inquiry about her political beliefs and other opinions, …I will object. 

MR. LARSEN: Well, this has nothing to do with political beliefs. It has to do with the comment and impact of the comment on the college, and if you’re going to instruct her not to answer— 

MR. MYERS: Why don’t you take the deposition of the evaluation team if you’re interested about their opinions? [Lisa’s] opinions are irrelevant to this litigation. You couldn’t ask this in court. She’s not an expert witness. Ms. Sobel couldn’t ask her questions about this evaluation report. Nor can you, and particularly you can’t because [you represent] her employer. And to have her sit here and respond to these questions seems to be completely unreasonable and in violation of her constitutional rights. So why don’t you move forward in the areas that might be relevant? 

MR. LARSEN: I’ll ask more questions and we’ll let the judge decide [whether my questions are relevant]. 

MR. MYERS: Fine. 

Q The last paragraph talks about divisions paralyzing governance, shattering collegiality, and adversely affecting students. Both current and future. Do you agree with that? 

MR. MYERS: Once again, I object to the question. 

MR. LARSEN: Are you going to instruct her not to answer? 

MR. MYERS: She’s not going to be answering these questions. ….. 

Q Are you aware of any hate mail on the campus? 

A Yes. I received one. 

Q What’s your definition of “hate mail”? 

A I actually don’t have a definition that I carry around with me.

 ….. 

Q I’m going to direct your attention to page 25 of Exhibit 5. Under “Recommendations,” item number 3, it says, “The team feels strongly that all players need to cease their negativism and focus on constructive steps toward building a future.” Do you see that? 

A Uh-huh. 

Q Do you agree with that? 

MR. MYERS: Why is it relevant whether she agrees with it or not? Why do you need to know what her beliefs are concerning this report? 

MS. SOBEL: I would object to its inquiring into political beliefs about the negativism of Mathur…, Sampson, and other public officials in the district. 

MR. LARSEN: Well, Miss Alvarez, is there negativism at Irvine [Valley] College? 

MR. MYERS: Once again, why is her opinion relevant to this litigation? And you have to have a compelling showing of relevance to overcome her First Amendment interests that are at stake. I just don’t understand why you think you can have a deposition and call in a faculty member and start asking a faculty member about [her] opinions. If you want to ask about observations, statements made by Mr. Bauer, things that might be relevant to this litigation, please do so. But to use this as part of the college’s strategy to harass faculty members seems to me to be inappropriate. 

….. 

MS. SOBEL: We would disagree strongly that what you’ve asked are questions about what is at issue in these proceedings. What is at issue in these proceedings is a letter issued by the district in December delineating six writings and graphics in [Bauer’s] newsletter that the district contended evinced discrimination and harassment by Professor Bauer as well as a violation of the district’s policy on workplace violence. And what is at issue is whether the district then lawfully sought to discipline Professor Bauer and direct him to psychological counseling…That’s the scope of this lawsuit, whether they had a basis for doing that. Not whether any individual faculty member believes that there is negativism on the campus…It is not a field day for you to inquire about everyone Professor Bauer interacts with and what their views are of what’s going on [at] the campus based on your client’s narrow reading[]—the contention you’ve made to the court, which the courts have squarely objected [to], that Professor Bauer is single-handedly responsible for every problem identified in the accreditation review—which would, as I indicated earlier, include the financial irregularities of district officials, the factionalism of the board of trustees, the problems of the union at both campuses. …Professor Bauer would probably love to believe that his newsletter is so extraordinarily forceful, but since many of the issues raised in the accreditation review predates his newsletter by five to six years, it is highly unlikely he has any relevance [to these issues], and many of them have not been covered in his newsletter…If you’re going to get to the newsletters, that’s fine. That’s what we’ve said all along. But you’re not asking about that, Counsel. ….. 

5. Anger, faculty assemblies, raised voices: 

Q Ms. Alvarez, in the last two years, have you attended faculty assemblies with Roy Bauer? 

A Yes, I have. 

Q And at any of those, [was] Dr. Mathur present? 

A On occasion, yes. 

Q And have you witnessed any interchange between Dr. Mathur and Mr. Bauer? 

A Yes, I have. 

Q During any of that interchange, …did Mr. Bauer use a raised voice?…Have you ever seen him speak louder than was necessary to communicate? 

A Not in my opinion, no. 

Q Have you ever seen him become angry at the president? 

A Not really. I wouldn’t characterize it as anger. 

Q How would you characterize it? 

A Like many faculty, I believe he feels disappointed and sometimes frustrated with the president. 

Q Has he expressed that disappointment and frustration in faculty assemblies? 

A Yes. 

Q What has he said in that respect? 

A I recall once he asked the president when he was going to answer questions, because no time allotted to questions appeared on the agenda—or else we had run over time and the items that were removed from the agenda were the items devoted to questions. 

Q Did he do that in a raised voice? 

A As I indicated earlier, …we have over a hundred faculty at Irvine Valley College, and in such assemblies it is not uncommon when speaking from the floor to speak in a tone of voice that is louder than the voice one would use for normal discourse. 

Q Have you ever seen Mr. Bauer angry? 

A I have trouble with that adjective. It doesn’t seem accurate to me, so I would say no. I would say I haven’t really seen him angry. 

Q Have you ever seen Mr. Bauer distribute his publication? 

A Yes. 

Q How has he distributed them? 

A Informally. Sometimes when faculty or staff approach him for a copy, and at other times through…mailboxes. 

Q Have you ever seen him go from desk to desk and leave them— 

A No, I have not. 

….. 

6. Shit list: [In the November 2, 1998, Dissent, Bauer described a (trustee) candidates’ debate. At one point, he wrote: 

“Padberg also spoke…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.”]

Q …[Let’s go to the article that] talks about “two-ton slate of polished granite.” Did you ever discuss that with Mr. Bauer? ….. 

A I believe mention was made of it because it appeared in the…charges that the chancellor made [in his letter to Bauer of December, 1998]. 

Q So what did Mr. Bauer say about it in that discussion? 

A I believe he indicated surprise that this [remark] was considered a threat, a credible threat. 

Q Did you say anything to him about it? 

A I believe I concurred with his surprise. ….. 

Q Were you involved in the editing of this comment in any way?…Were you involved in the editing of this article? 

A No. 

Q Did Mr. Bauer ever tell you he had a permanent shit list? 

A No. 

Q Did he ever discuss with you people that—did he ever tell you or talk to you about having kind of a list of people? 

A No. 

Q Were you surprised to read that he has a permanent shit list? 

MS. SOBEL: I’m going to object. Assumes facts not in evidence. 

MR LARSEN: The document says he has one. 

MS. SOBEL: The document—as he’s testified to in his declarations and as the court found—suggests that this is rhetorical, political hyperbole, not that he has a shit list, permanent or temporary. [The document suggests]…that he wrote an article in which a sentence appeared, and I believe he has testified in his deposition as well [that] he has no such list. This was political hyperbole. [Note: as a matter of fact, I have never had any such list. --RB]

Q Are you aware of any list of names that he has of people that he doesn’t like? 

A No, I am not. 

….. 

7. Mr. Goo: 

Q …Has Professor Bauer ever told you that he hates anybody in connection with the South Orange County [Community] College District? 

A No, he has not. 

Q Did [he] ever tell you that he doesn’t like Dr. Mathur? 

A No. 

Q Has he ever told you he’d like to see Dr. Mathur removed? ….. 

A As college president? 

Q Yes. 

A Like 70 percent of our faculty…, I believe that Mr. Bauer does not approve of the policies instituted by the college president. And I believe…when we voted no confidence in the college president—that was an indication of our desire to see someone new in that office. 

Q Have you ever heard Mr. Bauer refer[] to the college president as “Goo”? 

A Verbally? 

Q Yes. 

A No. 

Q Have you ever seen him do it in writing? 

A As far as the Dissent goes, I know there’s occasional references. Using I think a longer term than that…with a title in front: “Mr.” 

Q Mr. Goo? 

A Yeah. 

Q Did Mr. Bauer ever tell you why he used that term? 

A I believe it came up in discussion in terms of the cartoon character Mr. Magoo. 

….. 

8. “Going postal” deconstructed: [The Nov. 9, 1998, Dissent included an account of election night. It included this somewhat humorous passage: 

  “Later in the evening, someone said that, as you look around the room, you see the very best people of the district: people known for their integrity and decency. I could not help imagining the party for the other side: Mr. McClendon discoursing on democracy and unionism; Lee Walker in the corner, trying to think of the name of the Governor; Ken Woodward hissing and sneering and alerting others of his “Ph.D. in economics”; a bepolyestered Sherry bitching and moaning about her unparalleled labors at the Xerox machine; some of the “Scandalous Boys” leering and choking and turning red; Frogue and Mathur trading paranoid fantasies. In a room like that, no decent person could resist the urge to go postal.”] 

Q Have you ever heard the term “going postal”? 

A Yes. 

Q What does it mean to you to go postal? 

A …It’s…a term in sort of popular usage now, I believe, which has its…original roots in certain episodes in post offices, but has grown I think [to be] very…common. My students use it often to indicate [despair], frustration. 

Q Does it have any connotation of violence to you? 

A I believe it depends on the context in which it’s used. When my students tell me they are going to go postal because I have given them yet another assignment to do, I don’t think that’s a threat of violence. I think it’s…an expression of frustration. …It has roots in specific incidents. And now it has metamorphosed into…a popular slang term. I think those roots were originally violent, yes. But I think…the way it’s used now, it doesn’t really carry that weight. 

….. 

Q …Did you ever discuss [the appearance of the phrase “going postal” in the newsletter] with Mr. Bauer? 

A …[W]e discussed this [phrase] because it appeared in a letter that Dr. Sampson wrote [to him]. 

Q Did Mr. Bauer share that letter with you? 

A I…can’t recall, but I was made aware of its existence. 

Q How did you become aware of it? 

A He mentioned it to me. 

Q What did he say about it? 

A I believe he indicated surprise at the contents of the letter. 

Q Did he indicate any concern with the letter? 

A He indicated concern that the procedures that we have in the district had been overlooked…I think he was concerned that the letter had been placed in [his] file without…allowing him an opportunity to respond, which I think is the policy in the district. 

Q Did he ever discuss with you a meeting that he had with Dr. Sampson to discuss the letter? 

A Yes. 

Q What did he say about that meeting? 

A I think in general he was disappointed and frustrated. 

Q What did he say? 

A I couldn’t recall exactly…I believe he anticipated an opportunity…for serious discussion with the chancellor, and he…felt he did not have that opportunity. 

Q Did he tell you whether or not the chancellor asked him any questions? 

A None that I can recall…I recall [that Roy] indicated that the chancellor suggested that he had an obsession with military hardware and guns, which struck both of us as surprising. 

Q Did he laugh about the meeting? Did he laugh about that assertion? 

A He did not laugh about the meeting, no. I think he found that assertion sort of absurd and very sad.

….. 

9. The infamous “MAIM” remark: [I won’t go into the details again. Suffice it to say that, in a piece entitled “A modest proposal,” Red Emma humorously compared Mathur to Milosevic, using the acronym “MAIM.” Red was implying, of course, that Mathur is ruthless; no reasonable person could infer that he was expressing the intention to injure Mathur or anyone else. [Larsen attempts to determine who authored the “offending” article. Note: neither Lisa nor I authored it.] 

Q Did you discuss that article “Modest Proposal” with Mr. Bauer prior to its being printed? 

A I actually don’t recall. I don’t recall if I did or not. 

Q Did you edit the article? 

A No, I did not. 

Q Do you know whether Mr. Bauer edited the article in any way? 

A No, I don’t. 

Q Do you know whether Mr. Bauer wrote the article? 

A I know Mr. Bauer did not write the article. 

Q How do you know that? 

MR. MYERS: Objection. Calls for information that’s privileged and protected by the First Amendment. 

Q Did you write the article? 

MR. MYERS: Objection. Calls for information that’s protected by the First Amendment. 

Q Are you going to refuse to answer? 

A Yes, I am. 

Q What does the term “maim” mean to you? 

….. 

A To wound in a particular way. 

Q In what way to wound? 

A …I’m trying to do better here with my definition— 

MS. SOBEL: You can only do as well as you can do, Lisa. 

A Well, I’m an English teacher. I have certain standards…It’s when…you’re wounded and you lose a certain portion of your body, I suppose—a limb or something to that effect…. 

Q So it’s a term of violence? 

A Term of violence? It could be. It’s not always, you know. 

The original source of the image in question, I believe. -rb

9b. That would be a beheading: 

Q …You see the cartoon in the upper right-hand corner? [Larsen is referring to the “Backdoor Gooster” graphic, which accompanied an article about Mathur’s “enemies list.” The graphic shows a fiend holding the head of his victim.] 

A Yes, I do. 

Q Do you consider that a violent depiction? 

A I consider it a comic depiction of…something that is, I suppose, literally violent, the same way a Superman comic is violent or a Fantastic Four [comic] is violent. ….. 

Q Would you consider the depiction in the upper right-hand corner as being one of maiming? 

A Actually, I would think the only body part that you could [lose] and not have it be considered maiming would be your head. I would offer that that would be a beheading. I’m sorry, I am this English teacher, okay? So I am amending my earlier definition of “maim.” Now, I…believe this is a depiction of a beheading, not a maiming. 

Q Now, right underneath…the picture is a phrase, “a slimy and duplicitous rat-bastard.” [Actually, the phrase occurs in this context: “Unfortunately for the Gooster, Larios (to whom Raghu had offered the enemies list) was not a slimy and duplicitous rat-bastard….”] 

A Yes. 

Q Did you ever discuss that with Mr. Bauer? ….. 

A No, never. 

Q Did you ever discuss this particular cartoon with Mr. Bauer? 

A I believe the cartoon was one of the ones indicated, again, in the chancellor’s letter to Mr. Bauer. 

Q What was said in your discussion with Mr. Bauer about this cartoon? 

A I think I pointed out that I was surprised that [the graphic] was perceived as a threat, since my understanding of the cartoon was that it indicated that the people being threatened were the faculty by the college president. ….. 

10. Unabauer: 

Q do you know when [Bauer] first started using [UnaBauer@aol.com] as an e-mail address? 

A I believe he started using it after a high-profile piece appeared in the Orange County Register where the…then-president of the board of trustees of the college district, John Williams, compared Mr. Bauer to Ted Kozinski, the Unabomber. I believe he…said that the newsletters were similar to the writings of Ted Kozinski. 

Q Did you ever discuss with Mr. Bauer why he used that as his e-mail address? 

A I think he was—we did discuss it, yes. 

Q What did he say? 

A I think he thought [Williams’ “Unabomber” comparison] was an absurd comparison and…he needed an e-mail address…. 

….. 

Q In this discussion about the letter from the chancellor, did he say anything about, “Gee, maybe I’ve been misunderstood.” 

A Nothing that I would characterize as “Gee, maybe I’ve been misunderstood.” 

Q What—did he say anything to that effect or anything similar? 

A I believe he expressed disbelief that…his writings were seen as threats of violence, credible threats of violence. He expressed surprise. We discussed Jonathan Swift and the role of satire and rhetoric and hyperbole and irony. 

11. Shared governance and the school chair: [Since the summer of ’97, it has been clear that the IVC “Chair” model is gone forever. Nevertheless, Bauer’s critics have insisted, absurdly, that he is motivated by a desire to become chair again. Bauer had been chair for two months. He has never sought administrative positions.] 

Q Did [Bauer] ever discuss with you…his feelings about the elimination of the school chair position? 

A Yes. 

Q Did he tell you he was upset about that? 

A He thought it wasn’t a very good policy to remove the school chairs. 

Q Did he ever tell you that he was upset that he was no longer a school chair? 

A He expressed disappointment that our school chair model had been abolished. I know personally he was not looking forward to his term of service as school chair, but was willing to serve, so he did not express…personal disappointment that he was not a school chair. He expressed disappointment, again, about [the abandonment of] this model of administration that we had enjoyed at the college. 

Q Did he tell you why he was not looking forward to serve? 

A It’s a lot of work…I don’t know…any faculty member who looks forward to their term as school chair. People do it because they’re committed to the institution and to their colleagues and to the idea of self-governance.

 ….. 

12. Discomfort, threats, passion: 

Q Have any…employees ever expressed to you any discomfort as a result of any of Mr. Bauer’s publications? 

A Not to my recollection, no. 

Q Are you aware of any faculty members that have sent any e-mail or any other threats to Raghu Mathur?  

MS. SOBEL: I’m going to object to the question as assuming facts that are not in evidence at all in this case. And “e-mail or other threats” makes it sound like there were e-mail threats, and I don’t believe that there is any documentation of such threats. And I’m also going to object to the extent that it suggests that Professor Bauer has ever sent a threat of any type to Raghu Mathur. 

MR. MYERS: Miss Alvarez will be happy to respond to the question as interpreted as…is she aware of any threats being sent to Raghu Mathur by e-mail. 

A Okay…Am I aware of any faculty members…having sent threats by e-mail to President Mathur[?] No. 

Q Are you aware of anyone having sent any written threats? 

A No. 

Q Have you ever heard Mr. Bauer make any threats about Raghu Mathur which you would consider to be threats? 

MS. SOBEL: I’m going to object to the question as vague and ambiguous. Threats of what? Threats to bring a Brown Act action? He did that. Threats to challenge other actions and question the college president in meetings? He’s done that. What do you mean by “threats”? ….. 

Q Have you ever heard Mr. Bauer threaten Raghu Mathur? 

A I have never heard Mr. Bauer make physical threats or threats of violence toward President Mathur. 

Q Have you ever heard him make any other types of threats toward President Mathur? 

A I have heard Mr. Bauer passionately oppose some of the policies instituted by Mr. Mathur and suggest that he will oppose those policies, those measures. 

Q Describe what you mean by “passionately oppose.” 

A I believe Mr. Bauer, like many of the faculty, [is] outraged, for instance, about the abolition of shared governance on the campus. Many, including Mr. Bauer, are quite passionate about it. 

Q By “shared governance,” you’re including the school chair model? 

A Shared governance is sort of a broad term that…indicates the areas where faculty are required by law to participate in governance of the campus, curriculum, hiring, et cetera. And yes, the school chair model…is a result of shared governance, but the process by which it was abolished struck many as…outrageous. 

Q You would include Mr. Bauer as one of those that was outraged by that; is that correct? 

A Yes. 

13. Lookin’ for dirt: 

Q Did Mr. Bauer ever discuss with you any directive from the chancellor that he seek some kind of professional counseling? 

A Yes, I believe it was part of the letter that the chancellor placed in his file. 

Q What did he say about that? 

A Again, he was surprised and disappointed that…the chancellor saw the situation [as he did]. 

Q Did Mr. Bauer ever tell you that he participated in any way previously in any type of counseling? ….. 

A I…seem to recall some sort of mention of…a counseling session in the past, but it had to do with…Mr. Bauer’s wife, I believe, but, again, this…is years ago…. 

….. 

Q Has Mr. Bauer ever indicated any type of anger with respect to his marital dissolution? 

MS. SOBEL: I’m going [to] object to the question on the grounds of privacy. ….. 

A No. 

Q Frustration? 

A No. 

14. Civility, fear, petitions: 

Q In your opinion, is civility important on a college campus? ….. 

A …I expect civility in my classroom. I hope for civility in other places, but it’s the nature of the academic institution that…discourse becomes…contentious sometimes. ….. 

Q Has anyone, any…employee of the college…district told you that they’re fearful of Mr. Bauer? 

A No. ….. 

[Larsen seizes upon an OC Weekly profile on Bauer.] 

Q Are you familiar with this article [from the OC Weekly]? 

A Yes, I am. ….. 

Q Did you have any involvement in getting this article published? 

A No, I did not. ….. 

Q Last sentence of the first partial paragraph says, “But most faculty won’t even sign a fucking petition.” Do you see that? 

A Uh-huh. 

Q Do you know what petition he’s referring to there? 

A It could have been the petition that was being circulated [for] the recall of Mr. Frogue. I know some faculty expressed concern to me that if they signed the recall petition, they would be subject to reprimand by administration. But this is also some time after the…recall, so it could also have to do with another petition. I know that there was a petition being circulated…and finally given to…President Mathur about his recognition of faculty accomplishments. I think there was also another petition. ….. 

15. A hostile work environment: 

Q If staff members were to testify that, in their view, Mr. Bauer’s publications create a hostile work environment for them, would you disagree with that? ….. 

A I would hesitate to disagree with people’s perceptions, but I would point out that I think Mr. Bauer’s publications respond to a hostile work environment. I don’t think they create it…. 

Q So you think the working environment at Irvine Valley College is a hostile working environment? 

A On occasion, yes. 

Q And from your perspective, in what way is it hostile? 

A I’ll give you an example. I write for local publications. My work has appeared in the LA Times and the OC Metro. And on occasions I have been in meetings with the college president where he has asked people not to talk to the press, where he has suggested that this is an inappropriate way for faculty to communicate. I was disturbed by that. [I]n some ways I’m a member of the freelance press. I thought it was an inappropriate comment for him to make, to say that we should not speak to the press as faculty members about the situation on campus. I think it’s a hostile work environment when policies are not followed on campus in terms of hiring, in terms of reprimand, and such. It creates a climate where the rules are broken and people are afraid such as the example I used earlier, with people being afraid to exercise their rights to sign a recall petition because they were afraid of retribution by their employers.

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.”

Bauer's initial 1st Amendment victory: transcriptions

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.
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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.
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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.
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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.

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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.