Wagner on Blackmun, RIP, FU

From DISSENT 23, March 23, 1999:
The Trouble with Harry: Mr. Wagner’s OC Reg Opinion Piece

.....Recently, an opinion piece by new trustee Donald Wagner appeared in the Orange County Register. Wagner commemorated the passing of Supreme Court Justice Harry Blackmun by calling him “muddle-headed.” How lovely.
.....Here’s Don’s piece:

Blackmun Defined Modern Judicial Activism (Thursday, March 11, 1999)

.....When Harry Blackmun, who passed away last week, was appointed to the Supreme Court by Richard Nixon, liberals expected the worst. They derisively called Blackmun one of the “Minnesota Twins” because he was considered an ideological twin of fellow Minnesota native and long-time friend, conservative Chief Justice Warren Burger.
.....But Blackmun surprised his liberal detractors and confounded his conservative supporters. In the end, he won praise from the media and pundits as a judge who “grew” while on the bench. But only judges who abandon conservative principles in favor of a powerful activist liberal judiciary are said to “grow.” The Supreme Court does not need such growth.
.....A true Blackmun retrospective obviously begins with Roe v. Wade.
.....In fact, his 24 years on the Supreme Court were so undistinguished that he is remembered for almost nothing else. And Roe demonstrates the severe limits of Blackmun’s jurisprudence. Regardless of what one thinks of the underlying abortion issue, virtually no legal scholar defends Roe’s legal rational. Playing doctor instead of judge, Blackmun broke pregnancy down into a trimester system. Then, playing super-legislator instead of judge, he decided as a matter of public policy that abortion could not be regulated by the states during the first trimester.
.....Finally, to add insult to the injury done to the principles of limited government and separation of powers, he told us that the Constitution of all things not only recognized his trimester scheme but compelled it.
.....The truth is very different. Our Constitution is simply silent on the subject of abortion or trimesters or what the states can do about either.
.....The Constitution is very clear, though, on the reach of the government. Activist liberal judges like Blackmun grossly exceed that reach when policy-making from the bench.
.....Although Roe is justifiably the best known Blackmun decision, many other examples exist of his thoroughly muddle-headed jurisprudence. For example, in Callins v. Collins, Blackmun penned an angst-filled dissenting opinion utterly disregarding the Constitution, informing America that he would no longer vote to affirm any death penalty regardless of the facts of the case, and displaying the intellectual bankruptcy of the activist judicial philosophy. Blackman waxed “optimistic” that his less enlightened peers would ultimately recognize the errors of their own views in death penalty cases and progress to his own far-sighted view. “I may not have to live to see that day,” he prophetically moaned, “but I have faith that eventually it will arrive.“ Again, that would be called growth.
.....Blackmun’s Callins dissent underscores all that is wrong with the judicial activist. The Constitution specifically permits capital punishment. There are four textual references in the Constitution to the death penalty, which is exactly four more references than to abortion. But Blackmun ignored this textual inconvenience with a bit of judicial sleight-of-hand. He claimed that the Supreme Court has recognized two requirements necessary for the constitutional imposition of capital punishment: “consistency and fairness.” However, he argued, these two Court created requirements have proven incapable of practical application. Thus, Blackmun proposed not abandonment of the Court’s confused death penalty jurisprudence leading to this problem, but rather abandonment of the inconvenient constitutional text. To Blackmun, the Court’s own tortured historical rulings trump unambiguous constitutional language to the contrary in order to achieve the desired outcome.
.....Unfortunately, outcome-oriented sleight-of-hand is not the only weapon in the arsenal of the liberal activist judge. Blackmun turned next to evolution. He claimed that the constitution no longer means what it says because “American standards of decency…have evolved over time.” To Blackmun, that meant American standards of decency no longer permit imposition of the death penalty.
.....But such populated and geographically diverse states as California, Texas, Florida, Washington, Illinois and New York permit the death penalty. How then could Blackmun seriously argue, other than through hubris or ignorance, that “American standards of decency” have evolved away from capital punishment and that he alone on the Court has discerned this evolution?
.....Curiously, Blackmun’s Callins dissent recognized this problem but ignored completely its fatal significance to his argument and the rule of law. He noted that “most of the public seems to desire, and the Constitution appears [only “appears”?] to permit, the penalty of death,” yet he still found that evolutionary forces of some sort, and to which he alone was attentive, thwart the will of the people and the text of the constitution.
.....Express and unambiguous constitutional language meant nothing to Blackmun solely because he thought decent people should reject that language. This is judicial activism at its worst. This was Harry Blackmun’s contribution to American law.

THE WRITER: Mr. Wagner, an attorney in Irvine, is immediate past president of the Federalist Society of Orange County, an organization of conservative and libertarian judges, lawyers and law professors, and a trustee of the South Orange County Community College District.

SEE ALSO:
• Don successfully micromanages institutional memberships

"ASK MISS FORTUNE" -- inauguration

"Ask Ms. Fortune" (or "Ask Miss Fortune") was one of our more popular features. "Miss Fortune" is, of course, a pun. "Misfortune" or "Miss Fortune"? The latter was a certain notoriously bumptious trustee, one who quit the Board amid rumors that she no longer resided in the county. Ah, a typical SOCCCD factoid! The feature was authored by the one and only Red Emma, starting March of 1999. Click on the image to make it larger.

AFTERWORDS:

This one (on three pages, from August 1999) features lots of graphics. (If you click on the image, it should become LARGER.) The first letter concerns Spencer Covert (yes, "Covert"), the district's "Brown Act" lawyer.

The first letter below concerns Mr. Wagner's obsession with Jane Fonda. In the second letter, Red alludes to the rise of Mr. Armando Ruiz to the ranks of administration. (Raghu desperately sought faculty who would play ball with him. Armando is all that he could scrape up.) As you know, the Ruiz saga ultimately flamed out in disgruntlement and infamy (see news stories about his "double dipping").

Below, Red alludes to Dean Howie's highly peculiar action of commanding that a painting be removed from the walls of A200 owing to its alleged potential for upsetting people. Judge for yourself. Nobody was ever upset by the painting--except, of course, for Howard. (A closeup follows.)

VARIOUS ICONS:

Andrew Tonkovich

Responding to Seymour's ruling, etc. (Times; Feb 1999)

1999: "Malfunction and misfortune": Accrediting Team Strongly Rebukes SOCCCD Leadership

Accrediting Team Strongly Rebukes Leadership at College District

By ROBERT OURLIAN - LA Times

JAN. 26, 1999

     Citing a “sad, sad state of affairs” at South Orange County Community College District, a national accrediting panel is demanding top-to-bottom reforms—especially within the board of trustees—before renewing accreditation for the district’s two colleges.
     In a pair of scathing reports, the Accrediting Commission for Community and Junior Colleges denounced the way Irvine Valley College and Saddleback College have been governed for the last two years.
     Bluntly rebuking trustees, the reports demanded that the board immediately begin stepping back from day-to-day operations.
     “Some members of the board of trustees do not understand the extent of the climate crisis in their colleges,” the team wrote.
     “Furthermore, they do not accept responsibility for their role in contributing to the situation. . . . Some trustees are in a state of denial in that they said they would not do anything differently if they had it to do all over again.”
     The reports stated that “Irvine Valley College and its district . . . are organizations in crisis—primarily a governance crisis. . . . A multiplicity of deep and bitter divisions characterize virtually all entities and relationships. . . . The district had become wracked by malfunction and misfortune.”
     Both campuses remain accredited for the moment, but district officials had hoped for reaffirmed accreditation, though with some conditions.
     The reports released Monday were “less than we wanted,” said Cedric A. Sampson, the district’s new chancellor, who took over last year and has the daunting task of dealing with the problems.
     Formal notification about actual accreditation status and terms for winning reaffirmation are expected any day, he said.
     College trustee David Lang said at Monday night’s board meeting, “I hope we will accept their input in a renewed spirit of cooperation and commitment.”
     He proposed that the seven trustees immediately begin putting some of the accreditation panel’s recommendations into effect. 

     Specifically, Lang said, he hoped the board would relinquish control over executive hiring, delegate non-policy district matters to the chancellor and rededicate itself to “shared governance” with the two campuses’ faculty, staff and students.
     But trustee Steven J. Frogue took a less conciliatory tone.
     “I’m always led back to the question, ‘Who evaluates the evaluators?’ ” he said.
     The accreditation team’s reports said that trustees have taken actions that violated their own policies and procedures. It said also that some trustees may be in a “state of denial” regarding their responsibility for problems at the two colleges.
     “Although . . . these trustees think they are doing what is best for the colleges, they have failed to evaluate their performance and accurately assess the consequences of their behavior,” said the report on Saddleback College. “Our assessment is there is a need for immediate, extensive intervention and change.”
     The reports cite contention at all levels, including faculty groups vs. the faculty union and one college against another.
     But they focus more on the bloc of four—Board President Dorothy Fortune, former President John S. Williams, Frogue and former trustee Teddi Lorch—that has dominated the campuses for the past two years.
     That “high-profile, often controversial group of trustees felt obliged to involve itself actively in the day-to-day operations of the district and of the colleges far beyond the traditional roles for trustees,” the Irvine Valley report stated.
     The result was the development of two factions on the board—the one led by Fortune and Williams and another that unsuccessfully tried to block what it called “micromanaging.”
     The reports noted that Raghu Mathur was chosen president of Irvine Valley in 1997 on a 4-3 board vote after a stormy selection process run completely by the trustees. The accrediting team found the effects of split votes on that and on other issues to be unacceptable.
     “The board itself interviewed all 19 presidential applicants!” the team wrote.
     “This policy brings the board totally out of compliance” with standards, it said.
     While the team members did not question Mathur’s qualifications to be president, they wrote that the controversy over his appointment could threaten the college’s ability to comply with accreditation requirements.
     The reports also criticized a controversial 1997 administrative overhaul on both campuses.
     The commission is expected to give the district until June to show how it will comply with detailed recommendations—or face serious consequences for its accreditation status.
     Colleges need accreditation so students can transfer credits to other schools and to attract federal grants and foundation support.
     The release of the reports came a week after Orange County Superior Court Judge Tully H. Seymour slammed the trustees in a court ruling for “persistent and defiant misconduct” in disobeying the state’s Ralph M. Brown Act, which governs open meetings. The ruling was in response to a lawsuit against trustees filed by a faculty member at Irvine Valley.
     The presidents of the two colleges on Monday noted that the accrediting teams found the educational structures—classes, programs and facilities—to be in good shape.
     “They did talk about our excellent programs, which is gratifying,” said Dixie Bullock, president of Saddleback College.
     Mathur, of Irvine Valley, said the reports underscore the need for the campuses to pull together.
     “We have to focus on things that unite us, and that is: we are here to serve the students.”

SEE ALSO:

The board's "persistent and defiant misconduct" (according to Orange County Superior Court Judge Tully H. Seymour)

The board's "persistent and defiant misconduct" (according to Orange County Superior Court Judge Tully H. Seymour)

     A judge has ordered the South Orange County Community College District to tape-record its closed-door meetings for two years because of its “persistent and defiant misconduct” in violating state open-meeting laws. Orange County Superior Court Judge Tully H. Seymour also referred the case to the District Attorney’s Office for possible criminal prosecution, court records show. A prior finding of Brown Act violations against the district in 1997 also will be forwarded…”
     The (district) board engaged in a continuing course of conduct that appears to the court to reflect a total disregard for the requirements of the open-meeting law,” Seymour ruled. Terry Franke, director of the California First Amendment Coalition, said Seymour’s order might set a precedent. “This is extraordinary,” said Franke, who helped write the Brown Act. “This would be the first effective order for taping, and I have absolutely never heard of a judge in a civil (Brown Act) matter taking the initiative to alert the DA’s office.”

—From the OC Register, 1/21/99

"Defiant college trustees ordered to tape meetings"

"College board must seek unity"

The District accuses Roy "Dissent" Bauer of violence and discrimination

From Dissent 15, 1/14/99

ORIGINALLY ENTITLED:

A DISSENTER’S TALE 

by Big Bill [Roy Bauer]
[See also How to inspire administrators/trustees to go after you]

In Dissent XIV, I reported that I had received a letter from the Chancellor that said that I was causing a “hostile work environment” “as a result of statements written and distributed” by me—namely, “statements” (and graphics) that appeared in the ‘Vine and the Dissent. Astonishingly, the Chancellor takes the position that some elements that appeared in those newsletters—he cited, among other things, a goofy 50s sci-fi movie still depicting three miniature people scrambling atop a chair to aim an enormous gun at returning “downsizers”—constitute “threats of violence.” Further, the letter charged that one of the newsletters’ monikers for IVC president RAGHU P. MATHUR—Mr. Goo—is racist. Inexplicably, it also referred to “statements” allegedly made by me “which members of the Christian religion experience as interfering with their work environment.”

Huh?

Most ominously, perhaps, the letter “strongly urged” me to seek counseling to assist me in dealing with my “feelings of anger.”

The letter, dated Dec. 2 and received by me on Dec. 8, was the first I had heard about any such complaints. Nevertheless, as I later learned, the document was immediately placed in my personnel file. Observe that the Ed Code specifies that any disciplinary action taken against an instructor must refer to items already in his or her file.

Naturally, I took the letter to be the first step in a process designed to result in my dismissal. I spoke to my lawyer, Bill Shaeffer—he helped in the Brown Act lawsuits—who told Sampson that he would be attending the meeting with me that the Chancellor had demanded in the letter. We arranged to meet in Sampson’s office on the 18th of December, a Friday.

* * * * *

The meeting started at about 11:10. Shaeffer, Sampson, and I were joined by Robina Husting, the Chancellor’s assistant and our note-taker, VP of Human Resources Georgiana Sizelove, and her replacement, Harry Parmer.

As we seated ourselves, Sampson looked at me and asked whether I was taping the meeting. “Taping?”, I asked. Yes taping—you know, with a tape recorder. I assured him that I wasn’t. I pointed to my pen and said, in jest, that that was the only recording device I needed.

Sternly and somewhat cantankerously, the Chancellor proceeded to explain the purpose of the letter and the meeting. As he spoke, he used the first person plural: “we.”

I politely interrupted him. “Who’s ‘we’?”, I asked.

“‘We’ refers to the district, to the Trustees,” said Sampson.

“Have the trustees been informed of the existence of the letter that was sent to me?”, I asked. Sampson seemed flustered. “No,” he admitted. I said: “So the trustees—and you—are taking this action against me, but they haven’t even heard about it yet. Is that right?”

Sampson looked annoyed.

At some point, Shaeffer noted that, as far as Sampson knew, I was not the author or the sole author of the elements of the newsletters that were at issue. Shouldn’t an effort be made to determine whether I am the author before these extreme steps are taken?

Sampson explained that “everyone knows” that Roy Bauer is the author and publisher of the ‘Vine and Dissent, that he is responsible for their elements. Then he turned to me and asked, “Are you?” He had never bothered to ask the question before. No one had. I refused to answer. Shaeffer referred to the 1st Amendment.

* * * * *

Eventually, the Chancellor got to the heart of the matter, insofar as it had a heart. Administration Regulation AR-4000.3, section 7, lists 15 “early warning signs of the potential for violence in the workplace.” Oddly enough, I had read through that list only two hours earlier. I remember telling Shaeffer that none of these “signs” applied to me, although I expected Sampson to claim that maybe one of them did.

Boy was I wrong. Sampson proceeded to go down the list, declaring in eight instances that the “sign” in question applied to me.

But not “warning sign” A, which is “any history of violent behavior.” Sampson turned to me and rudely barked, “Do you have a history of violent behavior?” “Of course not,” I said. We moved on.

“Warning sign” B describes

An extreme interest in or obsession with weapons; e.g., paramilitary training, weapons collections (often including semiautomatic weapons), and compulsive reading and collecting of gun magazines.

That’s me, said “doctor” Sampson: I’m obsessed with that stuff. Clearly.

Shaeffer and I looked at each other. Then we looked back at Sampson and asked: “And how does that one apply?” Answer: the newsletters have images of military aircraft, etc.

Now, in fact, literally hundreds of images have appeared in the ‘Vine and the Dissent, but only a handful have depicted weaponry. (I checked.) True, during the last days of the recall effort, a Dissent graphic placed Mr. Frogue in the pilot seat of a crashing W.W.II Nazi warplane. And for the December 7 issue, Mr. Frogue was depicted piloting a Japanese Zero. (Dec. 7 is Pearl Harbor day—and it is also the date of a board meeting in which many of us expected the trustees to “drop a bomb” on Pauline Merry, which they did.) These images have obvious meanings relative to the issues of the district, and those meanings fully explain the images; no reasonable person would cite the “warplane” graphics as evidence that their creators have an “obsession” with weaponry.

And consider: I own no guns and have never purchased a gun publication; I display no images of guns or weaponry at school or at home; and no one will say that I am in the habit of discussing weaponry in class or in any other setting.

Sampson’s “diagnosis”—that I am obsessed with weapons—is ludicrous.

It would be tedious to go through Sampson’s entire list of “warning signs” supposedly applicable to me. Suffice it to say that, according to “doctor” Sampson, I make threats, intimidate employees, have “failed” or “strained” relationships, hold grudges, am fascinated with incidents of workplace violence, disregard the safety of co-employees, and am under great stress.

(In tagging me with “sign” F—failed relationships, etc.—Sampson implied that my personal life is somehow extremely troubled. “What do you know about my personal life?”, I asked. “Well, you went through a divorce, didn’t you?” —Oh.)

* * * * *

At the end of the “warning signs” portion of our little meeting, Sampson declared that “referal to counseling is indicated.”

In his letter, Sampson had “urged” me to seek counseling. Now, without explanation, Sampson was upping the ante: he announced that I am “directed” to seek counseling. “‘Directed’ means ‘ordered,’” suggested Shaeffer. Sampson gestured affirmatively. Wow.

I was also “directed” to cease and desist in making “violent threats” and discriminating on the basis of race by referring to President Mathur as Mr. Goo.

How, we asked, is using the phrase Mr. Goo to refer to Raghu an instance of racial discrimination? Well, explained Sampson, Goo sounds like “gook,” and “gook” is a term of disparagement for Asians. “President Mathur,” explained Sampson, “is an Asian.”

I responded by noting that never—I mean never—had I associated the phrase Mr. Goo with the term “gook.” I said that I intended the term Mr. Goo as an allusion to “Mr. Magoo” and perhaps to, well, goo, the sticky substance. Besides, isn’t the term “gook” usually associated with Vietnam and the North Vietnamese?

“No no!”, said Sampson. “The term was used in World War II against Asians in general!” Sizelove nodded in solemn agreement: “Yes, it is applied to Indians, too,” she pronounced. Shaeffer guffawed. “But,” I said, “it isn’t World War II. It’s 1998, and nobody associates the term ‘gook’ with people born in India.”

Sampson made clear that he rejected my account of the term Mr. Goo. When he first encountered the moniker, he said, the first thing he thought of was “gook.” His reasoning seemed to be: “Goo is three-quarters of the way to ‘gook,’ and that clinches it! RACIST!”

Gee. I gave Sampson a collection of ‘Vines and Dissents in August, and I’ve been supplying him with new issues ever since—and he has happily taken them. They’re filled with references to Mr. Goo. If Sampson thought from the very beginning that our use of the phrase Mr. Goo is racist or offensive, why did he wait until now to say something about it?

* * * * *

Shaeffer then asked an important question: is the letter in Professor Bauer’s personnel file? “Yes.” He asked when it was placed there. Sampson referred to the date on the letter: Dec. 2. He said that the letter was placed in my file on Dec. 2 “or soon thereafter.”

Now, in fact, I did not receive the letter until about a week later. That means, Perry, that the letter was placed in my file before I knew of its existence—before, therefore, I had any chance to contest its assertions.

It is worth mentioning, I suppose, that section 4 of AR-4000.3 refers to the rights of the “accused”:

The supervisor in consultation with Human Resources and the college police should decide how to approach the accused. Fairness and due process require that the perpetrator’s side of the story be told.

No opportunity to tell my side of “the story” was provided before the accusatory letter was placed in my file. Further, during the meeting, Sampson did not ask me for my side of anything. Clearly, the point of the meeting was to explain what I had “done” and what I needed to do about that.

Shaeffer asked if Sampson knew who the author is of the various elements of the newsletters. Sampson said he “assumed” that I am the author. Shaeffer asked whether he had considered the possibility that there are multiple authors, editors, and distributors. Sampson said that I am “seen by everybody” to be the distributor of the newsletters and that it is “assumed” that I am the author of their elements.

A quick perusal of the newsletters quickly reveals, however, that at least one frequent contributor to the Dissent is a part-timer (I am not a part-timer) and that at least one other frequent contributor is a woman (I am not a woman). Further, obviously, that Sampson and others see me distributing the newsletters (I do indeed hand him a copy each week—and he always pleasantly thanks me) establishes neither that I am the sole distributor nor that I am the sole author or editor. Finally, that people commonly assume—if they do—that I am solely responsible for the newsletters hardly constitutes evidence for that belief. I have never made that assertion, nor am I inclined to make it.

Shaeffer suggested that, in truth, this whole “hostile work environment” business is just a way to get around the 1st Amendment. In reality, the Chancellor—and perhaps a certain trustee who gives him his orders each morning—are trying to stifle dissent, and charging a ‘Vine/Dissent contributor with “violent threats” and “racial discrimination” will serve that purpose. Or so they hope.

Sampson explained that I am threatening to people, and that, if the district does not take steps, it will later be held liable. “Look at it from our point of view,” he said. “People will say: ‘you had all these warning signs, and you ignored them.’”

Shaeffer suggested that no reasonable person would interpret the contents of the newsletters as violent or threatening. Sampson said, “Oh, yeah. Well, I’m not a reasonble person!” –Well, no.

Shaeffer asked what Sampson envisioned “counseling” to be. Answer: I am to seek a counselor through the Employee Assistance Program. I am to lay out for the counselor what I think my problem is, and I am to show him the letter.

“Why would he do that?”, asked Shaeffer.

It is an “opportunity,” said Sampson, to show that I have examined my “hatred and anger and resentment” concerning Mr. Mathur. Sampson added that, if I choose not to do these things, then that will be part of the record.

Shaeffer asked if this would be a district-wide policy. After all, perhaps dozens or even hundreds of employees are upset and frustrated these days. So will all these employees be ordered to seek counseling? “Blah blah blah,” said Sampson.

* * * * *

Things were winding down, but I really wanted to know what that “interfering with Christians” stuff was all about. I had no clue whatsoever. I pointed to the relevant section of his letter and asked the Chancellor to shed some light on the charge. “Surely, if I am going to be accused of such things, it is not unreasonable for me to ask what the accusation refers to,” said I.

Sampson thought about the matter a moment and then said he “didn’t know.”

“You don’t know?”, I said. “You put this accusation in the letter—a letter that is now placed in my personnel file—but you don’t know what it’s about?”

I honestly don’t remember how Sampson responded. At no point did he explain the nature of the accusation. He did explain that my accusers shall remain “anonymous.”

* * * * *

After the meeting, Shaeffer and I talked. We decided that Sampson had blown chunks.

Later in the day, I heard the following rumors from a friend: that (1) the district had already hired a law firm to deal with me—a request would be made for retroactive approval of the hire at the January 25 meeting—and (2) the district’s plan was to use my acceding to the counseling order—my going to a counselor to deal with my “anger” and “hatred”—as evidence that I am indeed disturbed—and the evidence would form the basis, or part of the basis, for my dismissal. “On no account,” said the friend, “should you accede to the order.”

Of course, if I don’t accede, they’ll try to dismiss me on the grounds that I’m insubordinate.

On the following Monday, I received another letter from the Chancellor, dated Dec. 18. It reiterated the “direction” I received the previous Friday. I am to see a counselor, it said, “for the purpose of addressing the anger and hate so openly displayed against the President of Irvine Valley College and other employees.”

I’ll keep you posted.

* * * * *

Like everyone, I am capable of flashes of anger and stupidity. But I hate no one. I suppose that’s true of a lot of people.

Though I can be unpleasantly and even boorishly direct, I have never been violent and am in fact gentle by nature. I don’t hate Raghu P. Mathur and I never have; and I certainly don’t mean him any harm. Am I opposed to his presidency? Yes. Do I oppose his conduct? Absolutely.

But opposition, even rude opposition, is not hatred. Neither is it violence. —BB


[AT ABOUT THE TIME I WROTE THE ABOVE ACCOUNT, I SECURED THE SERVICES OF ATTORNEY CAROL SOBEL OF SANTA MONICA.

I REFUSED TO GO TO COUNSELING.

I SUED THE DISTRICT. I WON. THE DISTRICT APPEALED. I WON THE APPEAL.]