Too often, a young black man will be accused of an offense by the misguided assumption that he’s more prone to crime, more prone to violence, and when this happens, it demands redress. But sometimes, the young black man did it, and the person who accused him is wrongly accused of being a racist. Welcome to Oberlin College.

A student tried to buy alcohol with a fake ID and shoplift from Allyn D. Gibson, David Gibson’s son. Allyn D. Gibson followed the student out of the store, and the two got into a physical altercation.

Two other students got involved, and police have said when they arrived the three students were hitting Allyn D. Gibson while he was on the ground.

Allyn D. Gibson is white and the students are black. The three students pleaded guilty in August 2017 to misdemeanor charges and read statements into the record acknowledging that Allyn D. Gibson was within his right to detain the shoplifter and that his actions were not racially motivated.

Shoplifting isn’t the biggest deal crime around. Nor is trying to use a fake ID. But it’s still a crime, and stealing, despite the views of some newly elected prosecutors, is still inherently wrong. Somewhere else, this scenario might have played out quietly, in the usual course of events, where the kid who stole got his hand slapped. But not at Oberlin College.

But in the two days immediately after the shoplifting incident, Oberlin College students protested in front of the bakery and passed out flyers urging people to boycott the bakery, alleging the bakery had a history of racial profiling. Oberlin College stopped ordering from the bakery after the protests but resumed in January 2017. The college once again stopped ordering from Gibson’s after the lawsuit was filed in November 2017.

Much as the “tough on crime” crowd takes a knee-jerk position that the black kid must have committed the crime, the Oberlin community did the same, but opposite. The white accuser must have been racist. Not just the students, but the professors and the dean of students as well.

The suit also said Oberlin Vice President and Dean of Students Meredith Raimondo and other college staff members “handed out hundreds of copies” of a flier to the community and the media stating that Gibson’s Bakery and its owners racially profiled and discriminated against the three students.

The court documents include a copy of the flier, which included the words “DON’T BUY.”

“This is a RACIST establishment with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION,” the flier read, according to the lawsuit.

The dean subsequently “explained” that she was facilitating free speech by the students. Isn’t free speech good, as the apologists for hate speech keep crying? Oberlin’s general counsel Donica Thomas Varner made the argument.

Neither Oberlin College nor Dean Meredith Raimondo defamed a local business or its owners, and they never endorsed statements made by others. Rather, the College and Dr. Raimondo worked to ensure that students’ freedom of speech was protected and that the student demonstrations were safe and lawful, and they attempted to help the plaintiffs repair any harm caused by the student’s protests.

Nothing about Varner’s argument served to ameliorate the harm done to Gibson’s Bakery or the members of the family.

In May testimony during the trial, David Gibson said the protests “devastated” the bakery’s revenue, which forced staffing cuts. The bakery went from 10 to 12 employees with six to seven of whom were full time to six to seven employees and only one working full time, David Gibson testified during the trial.

This also included several family members working without pay. David Gibson and Allyn Gibson told the court they haven’t collected pay since the protests occurred, nor have David’s wife, son and grandson. David Gibson’s brother, who lives in Canton, works 40 to 60 hours a week at the bakery without pay.

The harm was reflected in the jury’s verdict, totaling $11 million,* which may yet be trebled when the issue of punitive damages is determined.

Aren’t students and staff at Oberlin entitled to protest? Of course they are, and they should be. But that’s not remotely the question here. The college didn’t get slammed for protesting, but for defamation. Defamation is not protected speech, nor does it become protected speech because the students at Oberlin passionately believes that any accusation against a black student must be racist.

There is, of course, a perspective from which this verdict must be wrong, the Gibsons must be racist and the shoplifter must be forgiven, innocent, even if he did what he allocuted to doing. After all, aren’t all white people inherently racist? Aren’t all black people inherently oppressed? And as a member of an oppressed community, despite going to one very pricey college, isn’t the student entitled to steal things from white-owned businesses?

These may well be questions properly pondered in the confines of academia, although the hyper-racialization of criminal issues has served to skew consideration away from the more difficult issues posed by facts and circumstances into the broader philosophical questions that allow any delusion to serve as a substitute for what happened in any individual case.

But when the assumptions of critical race theory manifest on the campus of a college, destroying a legitimate business and its owners, and its owners’ family, by tarring them with blind societal assumptions as racists when the facts ultimately show them to be nothing more than the victim of the petty offense of shoplifting, it’s got nothing to do with social justice. It’s just a wrongful attack based on false assumptions. And when it comes to a campus where the lie is prone to flourish, few places are more likely than Oberlin College.

The assumption that a young black man is likely to be a criminal is racist. The assumption that any accusation of a young black man committing a crime is false is similarly racist. Sometimes, the crime happened and defaming the accuser without regard to the facts is the wrong in need of redress, even if there’s no room in your worldview for facts and the possibility that the white guy isn’t the bad guy and this time, the black kid did it.

The jury heard the facts and Oberlin didn’t merely lose, but suffered a crushing damages verdict that will strain a college in dubious financial position, impact the tuition of future students who played no role in this delusion and likely change no passionate mind on one of the most progressive campuses in America, certain that it must have been racism because that explains everything.

That’s what happened at Oberlin College.

*”The jury awarded $5.8 million for David, $3 million for Allyn and $2.2 million for the bakery, with a further determination to be made of whether to award treble punitive damages. I defer to the jury on the appropriateness of the amounts awarded.

Whenever I return home from dinner with my oldest and dearest friend, Donald, Dr. SJ asks me how his kids are doing. I tell her they’re doing great, whereupon Dr. SJ gives me the stink eye. She knows me too well. She then says, “You didn’t even ask, did you?” It’s not true. I ask.

How are the kids?
They’re doing  great. How about yours?
They’re doing great too.

And then we talk about other things, like work and current events, or perhaps a humorous reminiscence about our old high school buddy, Spencer. You know what we never talk about? Continue reading →

About five years ago, a mind-numbingly moronic “response” was written to one of my posts about questioning the untethering of the word “rape” from any cognizable definition with the simplistic admonition that if one didn’t want to be accused of rape, “don’t rape.”

It was written by a young lawyer. Not a bright one, but a lawyer. The subtext was quite surprising to me, as it was hard for me to fathom any lawyer being so vacuous as to not be capable of grasping that not doing something required that something to be objectively defined. I was so naive back then.

I suppose there were plenty of lawyers who shared this depth of intellectual incapacity, but they were pressured by norms of intelligence to keep it to themselves and not reveal to the world they were, well, dumb. For the sake of law students, remember that they all passed the bar exam, which conclusively proves anyone can pass the bar exam and it’s not worth stressing over. It’s not hard. Continue reading →

As the Texas Tornado replied, “NOBODY COULD HAVE PREDICTED THAT CALLS FOR CENSORSHIP MIGHT BACKFIRE,” because, of course, he did, I did, many people did. It’s not that we’re prescient, though we may be, but because it was so obvious that there was essentially no chance that censorship wouldn’t result in Youtube overshooting even its own mark.

YouTube’s campaign against hateful and racist videos is claiming some unintended victims: researchers and advocates working to expose racist hatemongers.

A video published by the Southern Poverty Law Center was among those taken down after the company announced plans Wednesday to remove more videos and channels that advocate white supremacy.

Putting aside the irony that “unintended victim” was published by SPLC, the nature of the video was opposite of what the purge intended to remove. Continue reading →

What are the chances that a former Harvard lawprof, criminal defense lawyer, raging liberal, whose time had come and gone, would be relevant again? Not bad, as long as you’re willing to sling the crazy on behalf of the the president who makes Nixon look trustworthy and George W. look smart.

On the one hand, Alan Dershowitz challenges many of the wacky excesses of the “resistance,” which has shown no reluctance to resort to TrumpLaw, irresponsible reversals of law and logic specifically directed at a president for whom law and logic would mean nothing if he were aware of them and capable of grasping them. But on the other hand, persisting in the defense of the absurd has put Dersh in the position of having to push the envelope ever farther. When it comes to impeachment, Dersh pushed it over the edge.

President Trump has suggested periodically that the Supreme Court would intervene to block a hypothetical impeachment and trial since (he argues) he has not committed a high crime or misdemeanor. Of course, Trump does not just make this stuff up. He has actual lawyers advising him who tell him these things—among them, Rudy Giuliani, who recently tweeted that the “Supreme Court could overrule an unconstitutional impeachment.” Giuliani, in turn, was amplifying an argument that Alan Dershowitz has been making for a while, most recently at The Hill. But Dershowitz is wrong.

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I was spurred to write a post this morning by two op-eds in the New York Times, one by Roxane Gay and the other by Michelle Goldberg. After doing so, I decided not to post it. The crux of their world is misery, everything is horrible and they want everyone to wallow in misery just like them. In response, I wrote what I would call a “Pollyanna Post,” that the world is filled with joy, love and happiness.

After claiming that students turn to her for assurance that everything will be okay, a claim I find utterly full of shit since who would ever turn to someone as utterly miserable as Gay for anything, Gay writes:

I don’t traffic in hope. Realism is more my ministry than is unbridled optimism.

Continue reading →

There’s a bit of a trick lurking beneath the surface that you might miss if you’re unfamiliar with how such things happen when someone, say Ava DuVernay, produces a Netflix show about a highly, and rightly, volatile case like the Central Park Five.

In an interview with The Daily Beast, Ms. DuVernay said she reached out to Ms. Fairstein before she wrote the script. She said she asked if they could have a conversation so Ms. DuVernay would have Ms. Fairstein’s perspective in her head. According to Ms. DuVernay, Ms. Fairstein said she would sit down only if certain conditions were met, including approval over the script. Ms. DuVernay said no, and the conversation didn’t happen.

For someone as media savvy as Linda Fairstein to ask for script approval sounds ridiculous. There was no way she would get it, though there is good cause for concern given that the script for the new Netflix four-part series “When They See Us” was not only going to be a “dramatization,” but one that would certainly place the blame on Fairstein, who has gone from law enforcement hero as chief of Sex Crimes in the Manhattan DA’s office for 25 years to adored mystery writer to . . . the racist primarily responsible for convicting five young black men against whom there were no evidence save their botched false confessions. Continue reading →

The word “civility” is a zombie, returning to life after being brutally murdered over and over. Most people, judges in particular, use it incorrectly, in lieu of some vague expectation that people will address each other kindly, gently and with respectful appreciation of each other’s opinion, disagreement notwithstanding. The definition of “civility” is much simpler: politeness. It means using the formal norms of polite society in discourse and behavior.

The problem is that civility is used as a dodge. Remember UNC prawf Bernie Burk’s polemic against the group Law School Transparency in 2013 because, he cried, of their “toxic tone“? Only moderated rhetoric that meets the listener’s approval for “measured and thoughtful” compels a substantive response. If they’re not sufficiently civil, as per the respondent’s sensibilities, he is relieved of any duty to take the substance seriously and can rely on their incivility as reason enough to reject them.

While the heated and angry rhetoric that pervades online discourse offends many, one might think it has become sufficiently ubiquitous that we’ve gotten past the cries for civility. Sure, it’s nicer, but norms of politeness have broken down on all sides, and more importantly, isn’t it more important to get things right than get things nice? Continue reading →

Some people just don’t get how Twitter works. And some of those people get paid to teach.

Teacher Georgia Clark told Fort Worth school district officials she didn’t realize her comments about illegal immigration were public when she reached out to President Donald Trump on Twitter.

How else would one have a private, personal chat with the President of the United States if not on Twitter?

Clark, an English teacher at Carter-Riverside High School, was placed on administrative leave with pay last week after a series of posts caused a backlash on social media. She urged Trump to pay attention to illegal immigration and specifically called out her campus.

“Mr. President, Fort Worth Independent School District is loaded with illegal students from Mexico,” read one of the posts linked to her account. “Carter-Riverside High School has been taken over by them.”

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No one takes a job as a public defender because they’re in it for the money. Some do it because they believe in the social utility of the job, a critical cog in the grinding wheels of justice. Some for the experience, to get thrown into the deep end of the well and start being a lawyer on Day 1. No one, however, takes the job for the big bucks, and they understand going in that this is going to be a financial struggle.

So why should it come as a surprise that lawyers at the Legal Aid Society moonlight as Uber drivers and bartenders?

Ms. Boms and many of her Legal Aid colleagues are lawyers by day, representing those who most need, but can least afford, legal services. Then, out of financial necessity, they become bartenders, dog walkers or Uber drivers by night. Continue reading →