Sunday, June 16, 2019

Gibson's v. Oberlin College: A Woke Case Gone Bad

Oberlin College in Oberlin, Ohio has historically been a consistently progressive college in America. It was coed and interracial from its founding in 1833 and was part of the Underground railway before the Civil War. Gibson's Bakery has been family run since 1885 near the campus. It had an exemplary record serving Oberlin and its students until an incident on November 9, 2016, the day after election day. The election of Donald Trump put many progressives on edge, which may be a partial justification for Oberlin’s crazy, stupid, expensive explosiveness. An Oberlin student, Jonathan Aladin, entered Gibson’s with the intent of stealing two bottles of wine. He also had a phony ID. Allyn D. Gibson, son of Gibson’s two co-owners, his father and grandfather, saw the attempted theft. He took out his phone to take Aladin’s picture, whereupon Aladin slapped the phone in Allyn’s face. Allyn chased Aladin out of the store. The two exchanged blows outside the store. The police arrived shortly and witnessed Aladin, and two friends who were with him, punching and kicking Allyn, who was lying on his back. The police body cams captured the beating. A flyer was circulated shortly after the arrests. The flyer listed 10 competitors of Gibson’s to patronize. Roughly 300 Oberlin students demonstrated outside Gibson’s. Oberlin may or may not have suspended classes to let students attend the demonstration. Oberlin’s legal problem is that Dean Raimondo copied the flyer for the students on Oberlin’s copy machines and then disseminated them at the demonstration. She also used a bullhorn at the demonstration to direct the students. Oberlin’s Comparative American Studies Department posted on Facebook: “Very Very proud of our students! Gibson’s has been bad for decades, their dislike of black people palpable, their food is rotten and they profile Black students. No More!” Oberlin continues to argue, even after the jury findings of fact, that it had no part in the demonstration or student actions. Oberlin quickly terminated Gibson’s century old relationship with the college by supplying donuts and bagels to Oberlin. Gibson’s technically contracted with Bon Apetit Management Company, Oberlin’s food service contractor. Dean Raimondo ordered Bon Apetit on November 14, 2016 to terminate Gibson’s. The Gibsons met with the President of Oberlin, Dean Raimondo, and the President’s assistant a week after the incident. The Gibsons wanted an apology from the College. The response was Oberlin’s request that Gibson’s forgive every shoplifter for a first offense and contact Dean Raimondo rather than calling the police. Gibson’s would be committing economic suicide if it agreed to that offer. Aladin and his two friends Cecelia Whittston and Enida J. Lawrence, subsequently pled guilty to various offenses. Aladin’s written statement said “On November 9, 2016, I entered Gibson’s Market in Oberlin Ohio and attempted to purchase alcohol with a fake ID. When the clerk recognized the fake ID, I struggled with the clerk to recover the fake ID. The clerk was within his legal rights to detain me, and I regret presenting a fake ID in an attempt to obtain alcohol. This unfortunate incident was triggered by my attempt to purchase alcohol. I believe the employees of Gibson’s were not racially motivated. They were merely attempting to prevent an underage sale.” Ms. Whittston and Ms. Lawrence wrote similar statements. The Oberlin Police investigated the claims that Gibson’s had a history of racial discrimination. The police reported that 40 shoplifting arrests were made at Gibson’s from January 2011 through November 2016. Only 6 of the arrestees were African Americans. 33 were Oberlin students. Tray James. An African American employee of Gibson’s, said racism did not play a role in the arrest. He said “If you’re caught shoplifting, you’re going to get arrested.” Gibson’s filed suit against Oberlin and Dean Raimondo with counts of libel, slander, tortious interference with business relationships, tortious interference with contracts, deceptive trade practices, intentional infliction of emotional distress, negligent hiring, retention, supervision, and trespass. Oberlin said Gibson’s brought the controversy unto itself by chasing Aladin out of the store and tangling with him. Ohio, like the vast majority of states has a shopkeeper’s privilege statute, which allows a merchant to detain for investigation a suspected shoplifter for a reasonable time in a reasonable manner upon reasonable grounds for investigation. Allyn had reasonable grounds to suspect Jonathan was shoplifting. Being progressive should not mean being blind. The Gibson family and bakery just won a judgement for $11.2 million compensatory with another $33 million tacked on by the jury. The complaint’s allegations are eye-opening. “Racist” is one of the most loaded, inflammatory, vicious comment you can make of someone today. Oberlin kept it going for a year. The university continued to prominently display in the Wilder Hall Student Union statements that “Gibson’s has a history of racial profiling and discriminatory treatment of students and residents alike.” Oberlin student tour guides told the parents and prospective students to boycott the racist Gibson’s. Vice President and Dean of Students Meredith Raimondo is a social justice warrior. Our campuses have many social justice warriors in the administration, faculty, and student body. The youth have traditionally been liberal. I was once much more liberal than I am today. As Winston Churchill is quoted as saying: “If you’re not a liberal when you’re 25, you have no heart. If you’re not a conservative by the time you’re 35, you have no brain.” It’s a great Churchill quote even if he never uttered it, However, VP Raimondo will not let the facts get in the way of the narrative. The narrative is that white males have consistently discriminated against African American, especially young males, with slavery, Jim Crow, and now the criminal justice system. Unfortunately for VP Raimondo and Oberlin College, the facts are the facts here. Professor Raimondo joined the Oberlin faculty in 2003 in the newly created Department of Comparative American Studies. She explained in 2003 the department role is studying how diversity affects Americans at home and abroad, looking at the role of America in a global context. Her views approximated those of President and Michelle Obama, who viewed America as an oppressor nation both domestically and globally. Her courses covered gender and sexuality, race and ethnic studies, social justice, and HIV/AIDS. The professor was one of six receiving an Excellence in Teaching Award. She was appointed Special Assistant to the President for Equity, Inclusion, and Diversity as well as Title VII Coordinator in July 2014. Her role was to ensure Title VII compliance, to “further enhance institutional planning on diversity and inclusion,” and to support victims of sexual abuse and misconduct. Parties can insult the intelligence of jurors. Oberlin certainly accomplished that feat. Oberlin made two insulting arguments against punitive damages and one dumb mistake. The first was that they were not as bad they were seen, which went against the jury’s determination. In other words, the jurors were wrong. The second argument was that Oberlin was poor and couldn’t afford the judgment. Oberlin’s President testified that “We’ve created deficits … and over the next ten years, if this continues, that is unsustainable and we will not exist. He added to maintain diversity the college awards $60 million in grants annually while only 10% of the students pay full tuition. Cross examination was devastating. Plaintiff’s counsel presented the Oberlin 990 form, an annual, detailed financial form that non-profit institutions must file with the IRS. It is then made public. The 2017 990, the most recently available, reported Oberlin had” cash- non-interest-bearing” of $7,223,563 and savings and temporary cash investments of $85,876,658. 18 administrators earned over $100,000 annually while the President and Chief Financial Officer made over $500,000. These figures are not unusual in higher education, but help explain why tuition is so high. Oberlin’s endowment was $877 million. Oberlin’s financial statements report 301,560,000 is unrestricted. It can be used to pay the judgment. Apparently the worth of Gibson Bakery is $35,000. I can see the jurors’ eyes bulging at these figures. David with good lawyers can defeat Goliath with poor lawyering. The mistake was the response to the compensatory damages. Scott Wargo, speaking for Oberlin, said the college had no response at the time. Donica Thomas Varner, Oberlin’s Vice President, General Counsel and Secretary, made a mistake after the initial $11 million judgment in an email. She believes “the Constitution is a living document that should reflect our times, our norms, and what matters to us as everyday citizens.” Both Vice Presidents Raimondo and Varner fit the Oberlin ethos. Oberlin may be highly progressive, but much of Ohio is conservative. I know, having taught at Ohio Northern for three years in rural Ohio, that these hard working, America loving citizens in Lorain County are what Hillary Clinton referred to as “deplorables” and whom Senator Obama said “cling to their guns and religion.” Town and Gown don’t mix when Gown is trying to destroy Town. Vice President Varner sent an email to alums after the verdict She said Oberlin “was disappointed with the verdict and regret that the jury did not agree with the clear evidence our team presented.” Juries are the finders of fact. I teach students that there are two sides to every case. They may not be equal, but without two sides, you wouldn’t have lawsuits. However, once the jury decides the facts, then only one operative set of facts exists. Period! Dean Raimondo testified at trial that the witnesses for Gibson’s had lied, misrepresented, or misunderstood the occurrence. The jury obviously did not believe her. Discovery is great. Dean Raimondo said of a Oberlin professor who spoke out against the boycott of Gibson’s: “Fuck him, I’d say unleash the students if I wasn’t convinced this needs to be put behind us.” Oberlin continues to claim that it has no control over the students and that the involvement of Dean Raimondo was to ensure no violence occurred. Dean Varner added “The college and Dr. Raimondo worked to ensure that students’ freedom of speech was protected and that the student demonstrations were safe and lawful.” The $44 million sends a message to all colleges about social justice. Don’t defame and try to destroy an innocent party on grounds of racism. The jury award for compensatory damages was $5.8 million to the father, $3 million to the grandfather, and $2.2 million for the eatery. It held the college and Dean Raimondo were liable, but said damages would only be assessed against the college. The $44 million will be reduced. As I read Ohio Revised Code§2315-21(C)(5), punitive damages are limited to twice the compensatory. $11 billion will thus be cut off the verdict. The trial judge or appellate tribunal may do a remittitur on the compensatory, and cut them and the resulting punitives. The best advice for Oberlin once the trial judge makes his final decision: SETTLE. The publicity is not good. Look at Missouri and Evergreen. You could lose the 10% paying full tuition. The lawyers on Oberlin’s Board should intervene with both common and legal sense. Settle with a full apology.

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