Gordon Klein, Reinstated But Still Suing

The request sent to UCLA Anderson School of Management accounting lecturer Gordon Klein turned out to be a form email, one that was prepared by activist students to be sent to all instructors, and one that was intended as a prelude to either appreciation, if they acquiesced or destruction if they didn’t. Gordon Klein didn’t.

The request (which was not available at the time of the original post about Klein but is set forth here at paragraph 26) was to cut black students a break on their grades because of the trauma of the times. After Klein failed to acquiesce to the “no harm” request, and despite a conciliatory reply from the student who sent him the email, his reply went viral and the dean went public about it.

After Plaintiff’s email reply to the student was posted on social media, some furious individuals called Plaintiff “woefully racist” and organized an online campaign to attack Plaintiff and the UCLA Anderson School of Management (“Anderson School”), where Plaintiff teaches. The Anderson School hastily buckled under this pressure and sought permission from the University to impose disciplinary sanctions on Plaintiff, including terminating his employment. But, as noted below, the University rebuffed the Anderson School, warning that “the School may not take any action … at this time” against Plaintiff.

FIRE took up his cause. The UCLA Academic Freedom Committee found Klein was within his rights. Klein’s suspension was ended and he was reinstated despite the student activist petition demanding he be fired.

“We’re happy to confirm that Gordon Klein is teaching once again, and hope that in the future UCLA will consider its constitutional obligations before throwing educators out of the classroom,” said Katlyn Patton, author of FIRE’s June 10 letter to UCLA. “UCLA investigated his ‘tone’ in an attempt to quell public backlash. But regardless of how many people demand his firing, UCLA cannot justify using that anger to erode Gordon’s rights.”

Klein, however, was not satisfied with reinstatement, and has now sued the dean and university, alleging that condemning him, throwing him under the bus to pacify the students, has severely damaged his reputation and, consequently, future earnings capacity.

Indeed, the extraordinary nature of the Confidential Personnel Action itself, combined with Bernardo’s accusations about Plaintiff, created the public misperception that Plaintiff’s conduct must have inflicted severe harm on a student and been so egregious that it rose to being an abuse of power untethered from the core principles of the University. Therefore, Defendants’ public disclosure of the Confidential Personnel Action – in and of itself – has resulted in substantial harm to Plaintiff, as herein alleged. Moreover, in our modern world of instantaneous and far-reaching online communication, it was reasonably foreseeable by Defendants that their accusations against Plaintiff and their public disclosure of the Confidential Personnel Action would be widely circulated online, thereby dramatically multiplying Plaintiff’s reputational damage.

Whether Klein will lose millions in future earnings remains a matter to be proven at trial, but the arguments that myriad harms arose from the dean’s reactions, both in suspending him and publicly condemning him for the “tone” of his email, raise serious issues. This wasn’t a case where a prof said something publicly on social media of his own volition that gave rise to a viral reaction of outrage.

Klein wasn’t looking for a fight. He made no choice to court disaster on his own initiative, but fell for a trap by responding to the email of an ally to black students, prepared to catch the complicit who fail to capitulate with a cohort holding an invisible sword over his head. As far as Klein knew, he received a private email from a former student asking that he cut black students a break because something bad happened elsewhere in America which somehow made them unable to be treated like non-black students. It was not only against policy to hand out unearned grades like candy, but wrong on many rational levels.

To the extent Klein’s response was too snarky, a normative characterization, it was still between him and the student. The student, apparently, got the message from Klein’s rhetorical response and apologized for making a dumb ask.

But ultimately, it all worked out, right? FIRE called it a victory. Klein was reinstated. All’s well that ends well. Sure, he was suspended, but was the dean wrong to investigate the accusation raised by the student petition demanding he be fired for his “woefully racist” response? Even if he hadn’t been suspended, the viral attack would have happened and he would be tarred in perpetuity by the students and their enablers, but it’s their right to believe, and to assert publicly and as loudly as possible, that Klein was the bad guy here.

As the saying goes in criminal law, “you can beat the rap but you can’t beat the ride.” And given the current state of “conviction” by belief and “punishment” by exile from the public existence, does it matter that Klein was subsequently reinstated to his lecturer position when he has already been condemned as a pariah to be shunned?

An argument broke out on the twitters the other day with some academics arguing over a  white professor who used the “n-word” in the course of reading Martin Luther King’s letter from Birmingham jail, and a student complained. Part of that argument raised the student’s right to complain and the school’s responsibility to investigate, where the ride begins. Woke profs argued that this was at it should be, while others, myself included, argued that when a grievance is facially baseless, there is nothing to investigate. The facts weren’t in dispute. There was just no “there” there.

The woke profs argued this somehow denied the grieving student’s right to due process, reminding me that they have no clue what the concept of due process means, and further reflecting their refusal to grasp that it’s no longer just the outcome of official action that does the damage, but the mere accusation, the fact that it’s taken seriously enough to warrant official consideration, that gives rise to all the unduly passionate on social media needing to be absolutely certain that someone did something wrong.

Among the many problems of being in a world where extrajudicial crime and punishment leave no way out, the damage may be severely exacerbated by spineless administrators who will acquiesce to any student grievance rather than be the grownups on campus, but the damage has already been done. Klein has no place to go to get his reputation back. Whether he’ll get some money instead remains to be seen.

8 thoughts on “Gordon Klein, Reinstated But Still Suing

  1. El_Suerte

    The false light and tortious interference counts are giving me pause. They seem quite similar to the bad defamation suits that get featured by Popehat and others.

    I really hope his lawyers aren’t taking him for a ride, and he has to pay UCLA on top of everything else.

    1. SHG Post author

      When drafting a complaint, some lawyers tend to throw in everything that has any chance of either succeeding or telling the story the client wants to tell, even if it’s not likely to survive Iqbal/Twombly, as long as there is one cause of action that is sound and well-pleaded. My view is to stick with the legit counts and not throw everything against the wall to see what sticks. Others disagree.

  2. Eric B Rasmusen

    [Ed. Note: Deleted per rules. I’ve added the link to your Klein compendium to your name for anyone interested. It’s a good resource, even if links aren’t permitted in comments.]

    Why is the false light count weaker? It certainly is true that (a) the Dean said bad things about Klein, and (b) Klein lost considerable money as a result. Is it that the Dean’s allegations against Klein are just opinion? I would think it would be similar to a reference letter in which a boss said that an ex-employee had treated customers in a racist manner when (1) he hadn’t, and (2) the boss had heard it from a source hostile to the ex-employee and had refused to listen to the ex-employee’s side of the story.

  3. B. McLeod

    Fifty or sixty years back, “college graduate” jokes were popular. These tended to depict college graduates as generally useless, lacking practical skills, and beset with an over-inflated sense of self-importance. The way the universities are running, somebody is bound to start getting those out of the mothballs.

    One of my favorites:

    Father: Son, when you have a minute, will you sweep up the stock room?

    Son: But Dad, I’m a college graduate.

    Father: Of course. Bring me the broom, and I’ll show you.

  4. gahgantah

    This is such a poor piece of writing.
    It is so even if you were speaking to the court.
    Forget about the jargons and tortuous argument. Use plain English and simple sentences. Have you taken Freshman writing or first-year law writing at all?

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