Reed Cosper

I’m in a Proust moment. All the Brown undergraduates are back in town. And fully settled in. It is the end of the second week, after the first week’s overture to the academic year. Yesterday was first Saturday after the second week. The weather fantastic. First week of lectures over. Syllabi distributed. The reading, reading, reading begins in earnest. Exquisitely free.  From my passing car, I see an undergraduate dressed summer clothes carrying books in a backsac.  Instantly it is September 1964. I am at Oberlin, ingenuous, sincere, raw, wide-eyed, empty.  But I digress. I am actually writing about Gibson’s.
 
Stop blaming Oberlin, the administration, the trustees! (forgodssake), the student, the student body, everybody except perhaps ourselves.  If there is blame, blame the lawyers. And then, let us move on.  I am at this moment reading Bernie’s second book on the Neutrality Trap.  It resonates. I’m a lawyer who spent a career representing mostly incompetent people and negotiating on their behalf with the devil.  

I am also a lawyer who is a sometimes client.  I’ll begin with that.  I was getting divorced. I was very angry.  I hired a lawyer. He is the guy who does divorces at a firm that formerly employed me.  I was somadsomad that I spent a long time schooling him on the narrative of my failed marriage. I have a small gift for framing narrative, suffiicient to draw him in.  And, in error, he let me run my own divorce. It was a buzzsaw.  After flaying, I fired him and hired another guy. The new guy attended the first negotiation after disaster, and came back to me with almost exactly the same property-custody proposal I previously rejected. In a greatly humbled tone, I began to tell new guy what was unacceptable in the proposal. He interrupted me and said, “Sign your name.” And I did. And from that precise moment, I started “winning” the underlying war.  (Winning in this context can only go “inside” boxes.)

The experience led me to articulate what, over decades, I had been learning: A lawyer can be sympathetic, but not empathetic. Empathy is too close to subjectivity. What a client most needs from a lawyer is objectivity, always objectivity; sometimes sympathetic, sometimes blunt.  This is not easy to learn to learn. Bill Clinton’s lawyers would have done great service had they used blunt objectivity in analyzing the risk of defending a frivolous lawsuit brought by Paula Jones. Blunt objectivity is what Ralph Shapira did when he counseled a billionaire client.
  
From 1991 to 2012, my clients included people locked in intensive treatment units in mental hospitals. I had a statutory mandate to “secure and advance” the civil and special rights of people with mental illness.  It was a wonderful job.
 
Narrowly speaking, I occasionally assigned myself the to the “commitment calendar,” which happened every Friday in a courtroom closed to the public  (Typically I assigned it to junior staff.) This is a forum that can teach objectivity.  What a civil commitment client usually needs to hear from their lawyer is that they are diagnosed with a psychotic illness; that there is strong evidence to support the diagnosis; that a doctor will testify under oath to the diagnosis; that there is not a doctor within five hundred miles who would disagree with the diagnosis. And finally, the doctor will ask the court for permissions to involuntarily administer antipsychotic medication—Because the benefit of quelling psychotic thoughts outweighs the risk of taking a horrible tranquilizer. Intended to tranquilize your brain to the point where it amputates your personality. (Unlike side effects: dry mouth, akathisia, drooling, dyskinesia, the intent of the medicine is to tranquilize your ego in the direction of oblivion. So you can better organize your thoughts.)

I also told them precisely how to win their hearing: Acknowledge the medical diagnosis. Assert your full awareness of the risk and benefit of antipsychotic medication. Iinsist that your rational choice is to refuse medication and stay in the hospital until you stabilize without medication. Almost no one acted on that advice. Now, turning to Gibson’s.

It was the lawyers that failed.  Oberlin should sue them for malpractice.  The lawyers let the college sedduce them to see this as a free speech case. It was not.
  
It was a case of reckless participation in an economic boycott of a small business that does the best it can to survive in a college town. At the moment a $5M settlement was in reach, the lawyers should have said “sign your name or we quit.” "Sign your name or you have an irreconcilable conflict with your lawyer."  This is NOT a freedom of speech case; it never was.  What Oberlin did is a tort that should be settled at the lowest possible cost to Oberlin.  $5M is a bargain. Take it or change lawyers.  This is what should have happened. As Shakespeare said, “I blame . . .”

Case settled. Fox News suspends its slur campaign.  Everybody moves on.
  
I for one am going to donate a thousand dollars of my meager estate in gratitude for four years at an institution that began with an idea: All people are created equal.  Thank you Oberlin for making us all into idealist cranks in the world beyond campus.  Next time hire lawyers who cannot be seduced by your idealism. And why not sue the ones you engaged?
 
Does anyone desire that I elaborate upon the bluntly objective analysis Bill Clinton’s lawyers failed to provide him? Just ask. 

Steve Kravitz

 Forrest Gump best summed up this sordid affair when he said, more than once:

"Stupid is as stupid does."

Moe, Larry and Curly would have done a better job.

What was afoot here?  What allowed supposedly intelligent college administrators to enthusiastically participate in the destruction of a venerable Oberlin business and the villifying of its owners without first learning the facts? This was nothing more than a lynch mob. "Shoot first and ask questions later."  Right out of Gunsmoke reruns.

Then, when offered a relatively inexpensive way out, they passed on it.  Even now they still think they were right.  Why can't they admit that they were wrong?  What is going on here?

Pursue a legal malpracice action?  I don't buy it.  Why do we, attorneys, always get blamed anyhow?  It's just a copout which will give the real villians a pass.  

Reed is right. The foundation of Oberlin is that all people are created equal.  Unfortunaely, that foundation is cracking. That's not how the administration and the students treated the Gibsons.

What to do?  Well, I think that we should insist on meeting with President Ambar and other administrators at our spring reunion. We should be given a full explanation of why this case was allowed to drag on so long, why the five million dollar settlement offer was rejected, what is being done to prevent another out-of-control frenzy from happening again, why they still think that they were right, and are any of the perpetrators of this mess still working at Oberlin. 

I also think that we should be given the opportunity to question the trustees to find out why they didn't put a stop to this when they had the chance. This could easily be done on-line. 

Oberlin means a lot to me. I met wonderful people. It pushed me to achieve more academically than I ever thought I could do. What happened was not my Oberlin. I don't want to ever see something like this happen again.

Steve Kravitz

Ralph Shapira

Reed:  Interesting post, both about Gibson’s and about yourself.

I liked your sympathy/empathy analysis.  I liked learning more about you.  Great to hear that you loved your work.  I’d like to hear your Paula Jones opinion.

Your “sue the lawyers” prescription doesn’t consider the possibility that Oberlin’s outside counsel gave good advice but the college rejected it, as your clients often rejected yours.  We just don’t know the facts.  And as one who has defended legal malpractice suits, the decision whether to accept a $5 million settlement proposal is a question of judgment.  $5 million is a lot of money.  Given the facts, I would have advised Oberlin to take the deal.  But even if the lawyers [stupidly] counseled rejection, I doubt that such advice could support a malpractice claim.  Competent counsel might reasonably have thought they could do better than that at trial.  A trial loss as catastrophic as Oberlin ultimately suffered, while of course theoretically always a risk, was not a reasonably forseeable outcome at the time Oberlin rejected the mediated settlement proposal.

Peter Griswold

I am appalled at the size of the settlement, and agree that Oberlin, in refusing to settle, greatly underestimated the weakness of their initial position, and the ungliness of some of the statements and e-mails that may have increased the size of the punitive damages.  I am confused confused.  I don't fully understand the contention that this case of Gibson's versus Oberlin was not about free speech.  No one appear to be claiming that the students' protest was illegal.  The students were exercising their right to free speech.  Why would Oberlin be held to account for supporting the students' right to exercise their right to free speech?

Ralph Shapira

Answering Peter:  The students were not sued, and no one at trial challenged the students' right to speak out against Gibson's.  It could have been otherwise.  There is no free speech right to make untrue, slanderous statements or circulate written falsehoods about another person or company if the target is injured as a result.  The First Amendment does NOT protect libelous speech.  So no, the students were not exercising their free speech rights.  If Gibson's HAD sued students who claimed it was racist and had a long history of racial animus, they might have won and gotten judgments against them; the students would not have been able to avoid liability by asserting First Amendment rights.  But Gibson's didn't go after the students, probably because it would have made them even more unpopular on campus and because the students wouldn't likely have had the money to pay any judgments against them.  Because libel isn't free speech, the college wasn't found liable for supporting the students' free speech.  What Oberlin was found liable for was its own dissemination of untrue statements about Gibson's [e.g., Dean Raimondo handing the students' libelous flyers to a reporter and distributing stacks of them to others], for wrongfully cancelling its business with Gibson's, and for aiding and abetting the students' defamatory conduct.

Ralph Shapira

One further clarification.  "Boycott Gibson's" is free speech.  "Gibson's is racist and has a long history of racial animus," if untrue, is not free speech -- it is actionable slander (if spoken) or libel (if written).  Slander and libel are the two kinds of "defamation."  The First Amendment does not protect defamation.

Ralph Shapira

Here's another clarification.  "The Gibsons are a bunch of jerks" is a statement of opinion, which cannot support a defamation claim.  Only a false statement of fact is actionable as defamation.   "The Gibsons are a bunch of jerks and you shouldn't shop there" is a combination of opinion and free speech -- again, not actionable.  I'm sure Oberlin argued that "Gibson's is racist" was a non-actionable statement of opinion, and in my mind that's a close call; the judge felt otherwise.  But "Gibson's is racist and has a long history of racist behavior" looks more like a statement of fact, which if untrue would (and did, in our case) support an actionable defamation claim.    

Robert Baker

I completely agree with these last three posts from Ralph. They explain the legal issues succinctly. What's unclear is what legal counsel advised the Board about the situation. Either the Board refused to follow legal advise, or that advise was incompetent. Only the Board knows which is true. 

Robert Baker

Actually, legal counsel also knows; but they are not allowed to divulge their advise without permission from the Board. 

Robert Baker

*advice. (In both posts)

John Barrer

Wow, thanks (Ralph, Ted, Robert, Reed, et. al) for the education on the Gibson case.  I didn't know of all the subtleties and facts.  Consequently, I had believed that the college was being penalized for merely sympathizing with the students whose actions were defamatory.  I knew about the $5M offer to settle and assumed (always dangerous) that because they didn't accept it that the college and its lawyers "knew" that they had a very strong defense.

I am just so disappointed in Oberlin.  In the 60's students were protesting national issues, such as the Vietnam war, racial discrimination, and women's rights.   In this instance, protesting the assumed racism of a mom-and-pop grocer doesn’t seem to be in the same universe of causes.  I watched one of the videos of the protesting students chanting in front of Gibson’s one evening.  It just struck me as being similar to the mob scene from the original Frankenstein movie, minus the pitchforks and torches.  It wasn’t a call to end racism, it was a call for revenge.

My son graduated from Oberlin in 2021 in Politics and just finished a master’s in political science from Columbia this Summer.  Even as a Politics major at Oberlin, he didn't feel like he fit in the with the extreme views and intolerance that seemed to be the norm.  There was a widespread atmosphere of intolerance at Oberlin at a time when educated people should be advocating for rational discussions of issues and tolerance of diverse opinions.  His experience at Columbia was in sharp contrast to the misery he felt at Oberlin.

I hope that Oberlin can recover its values and reputation as a place that trains people to be insightful and tolerant leaders in their fields.

Dick Hobby

1   Robert Dickinson makes great recommendations for how Oberlin College should respond to the Gibsons.  The board and the administration seem unlikely to follow his advice.  The board and the administration should be replaced

2   Ralph Shapira makes great point after great point about the Gibson affair as well as about free speech in general.  Bravo Ralph!

3    The lawyers are not the problem.  The problem is Oberlin College.  It suppoted the allegations that the Gibsons were racist and as Ralph points out, without evidence to support this, this is slander.

4    I personally do not think $35M is excessive.  Given what the Gibson family has gone through emotionally and financially $35M seems reasonable to me.  And it should send a message to the College that arrogance and slander are not good things.

Richard Zitrin

Catching up from abroad. As a long-time trial lawyer, I agree with everything Ralph said. I also agree with Bob B. Sometimes, clients (here Oberlin's administration) do stupid things and certainly things that the lawyers don't support. But - here as a longtime ethics prof - it would clearly be a breach of confidentiality and loyalty for the lawyers to even intimate that the college went against their advice. Unless the college took action against the lawyers to complain (which is not gonna happen), the lawyers must and will remain silent.

And to underscore Ralph's point, he has nailed it about the distinction between "I hate Gibson's" and "Gibson's espoused racism."

Rich

Peter Griswold

Ralph, thanks for the explanation about the distinction between actionable slander and libel versus opinion.  Appreciate your clearing up what was confusing to me.

Elizabeth Sherman (Elvy)

I was horrified to read Mrs. Gibson's side of the story. That woman and her family were wronged--first by petty pilfering by privileged students who should know better; next by slander and libel and an unjust boycot; next by breaking the wonderful relation that Gibson's Bakery has always had with Oberlin College. The monetary penalty for the College's unkind and unjust acts is indeed excessive--but so is the suffering College employees and students have caused the Gibson family. Now the College should pay up with grace and an apology to the last remaining Gibson. And the next time Oberlin students act badly, we should all keep our traps shut until the facts or known, keeping in mind that the law needs to treat everybody--whether it is Oberlin students or Donald Trump--the same. 

Robert Dickinson

I wonder if anyone in the current administration or members of the Board of Trustees have access to, or bother to read the messages that are posted to our Message Forum?  I think it would be valuable to our College President Ms Carmen Ambar, and the rest of the administration, and the Board of Trustees to know the opinions and the attitudes of a number of the Alumni.  I believe most of the postings in regard to the Gibson affair have been insightful and reasonable and are based on the facts as we know them and are not resentful or hateful towards the current administration.  They need to know that by and large we are not sympathetic to the College's cause and we have mostly expressed a position about further donations and contribution to the school without changes being made.  I do not know the Board members or the administration, but for me, until they make a concerted effort to make amends with the Gibson Family and their business, I will not have any respect for, or confidence in, either the Administration or the Board. 

Frances Hagberg (Graham)

FI want to thank all of you deeply who posted comments about this matter over the last few years and especially since the decision. I responded to Reed Cosper but didn't post my comment in the forum as it was focused on the challenges, if you will, of lawyering. I would comment that the culmination of this case with the GIbsons, demands, in my opinion, some sort of formal exploratory event or series of events such as a period of serious self-examination such as a Truth and Reconcilation Commission with the exploration eventually published and publicly available.  There needs to be a "Warren Commission" report that listens and listens, then deliberates and documents what happened back before the "incident" up through the end of the lawsuit. Probably made up of people from outside the orbit of Oberlin altogether as well as some who are or were part of the college. Not to punish but to reflect and set about exploring on a factual basis what in the world has evolved into a failure of character and statesmanship.

Oberlin is not alone in this failure, but having been caught in a very public way creates an opportunity that would not otherwise exist for the common good. It would require some sort of seed funding.  The commission should include a relevant but separate focus on the development of the committees that were set up to "investigate" allegations of sexual harassment and the damaging way those inquiries have been carried out. Again, to explore how good people get it wrong. How emotion overtakes process. How lives have been harmed. We are all left with a sense of disaappointment, even despair, at our sense of what the historic and (I hope) living purpose of our institution must aspire to but shows little recent sign of demonstrating. I would rather support something that was an affirmation of what I have learned in my life in and out of Oberlin than participate in protest.

Only this week I visited the campus of St. John's University in Collegeville, MN, which houses a world class and irreplaceable treasury of religious (all or nearly all religions) digitized documents through the ages. The Benedictines have long gone and go tromping into war torn areas (such as Cameroon) and often ancient documents and volumes that are at risk of being destroyed. (One recent trip was devoted to visiting a family that was hiding very old Islamic texts in Africa somewhere). The campus rests in the area that the Native Americans designated long ago as the "sacred space" because it is where the woodlands and prairie meet up. There is a Marcel Breuer 1953 church on site worthy of a visit in and of itself. And there was the creation of a 20th century handscripted and decorated Bible that is maintained there (it took many years to complete) on parchment that can be viewed. There are statues and monuments on campus recognizing the Native tribes that used to live in the area and acknowledging the repression and harm that Europeans have done. On one rectangle of grass there were as many miniature flags as martyrs on 9/11/2001, in remembrance of that day 21 years ago.  The campus is bordered by a small lake and there is a 2 mile hike to a small chapel where friends of mine married about 40 years ago before going off to the Peace Corps in Honduras. Thus I wanted to see the place.

The college is located in Stearns County which has always shown itself as the seat of old fashioned hard-core descendants of mainly German immigrants and it has a reputation that contrasts with the multifaceted Twin Cities. If a Catholic university hidden away in the middle of Minnesota, in a conservative section of the state, can offer itself as a candle to the world of today, then Oberlin College needs to demonstrate the capability to approach the world in an ecumenical way, reflective of a broad capacity to embrace its wrongs and somehow cross the river of reproach into a different mindset. Since we are at a crossroads as a country there is something small-minded about the college that seeps into the statements we've seen so far. 

If we do not clean up, become transparent, show the world and ourselves what we have done well and have not done well, how can we expect respect and how can we endure?

Most sincerely, Frankie Hagberg Graham

Dick Hobby

I think Robert Dickinson has come up with a splendid suggestion:  let's share our comments about the Gibson affair with President Ambar and the Trustees.

What would be the mechanism for doing this?

Reed Cosper

Frankie: Terrific ideas. Had to say that now. I'll  cogitate amp attempt to add ideas your comment generated.

Ted Gest

As our class' only representative on the Alumni Leadership Council, I'm glad
to convey the thoughts on this forum to the college administration but I doubt
that they would read through them all, so what is the succinct message?

That many people in our class are unhappy and some don't want to give
further donations until the college details the mistakes made in the 
Gibson's affair?

That sounds like a reasonable request, but will it get us anywhere? Remember
that all major people involved in the affair, including the lawyers, are gone,
so the current administration likely would find some way to blame it on them.
The trustees responsible are still there and are culpable.

I would hope that the trustees and current administrators have learned
from this, but we need to hear that.

The council is meeting at Oberlin in early October and is sure to
learn more about this. Any other suggestions?

Edward McKelvey

Ted, the current administration may well blame those who have gone, but Carmen is starting her sixth year as Oberlin's president.  While she was not part of the Oberlin community at the time of the original event she had the opportunity to put this behind the College when she acceded to the position and possibly many other times as well.  As for the Trustees, Chris Canavan has been president of the Board even longer.  So I while they may choose to blame others long gone, this administration and this board bear significant responsibility in managing this case.

Frances Hagberg (Graham)

Ted, I made suggestions for Truth and Reconcilation. See above. Frankie

Dick Hobby

Ted:   A summary is OK but I really think it would be more effective to send all the comments in full to Ambar and to each member of the board.  Then they will get the full force of our ideas and criticism.

Dick

Edward McKelvey

Outside all the foregoing points about legalities and how lawyers could and should have handled this situation, on which I have no basis to comment, I am struck by how badly the College misread its chances of avoiding both an adverse verdict and probably a large award to boot given the community's views and attitudes about the College.  Yes, the College has some good community programs, including free tuition for qualifying graduates of the local high school.  But you don't have to spend much time living in Oberlin before you realize how negatively the College is viewed by those not connected with it, and I understand from talking to employees who live elsewhere in Lorain County that these views are not strictly town/gown.  This is the pool from which the jury was drawn, and while I think the case was decided correctly on what I understand the facts to be, decisions on the size of the award may well have been influenced by these attitudes.

Edward McKelvey

Regarding how to communicate our views to the administration and trustees, I'd make a few quick points: first, I doubt the key decision makers will have the time or patience to read through all of these comments; second, in my view passing them on requires explicit permission from each and every one of us; third, only a small fraction of the class has weighed in on the Gibson's case.  This may be the easiest justification for ignoring them.