Ruling Questions UC Davis’ Commitment to Civil Rights Protections and Use of Anti-SLAPP Legislation to Thwart Civil Rights Remedies –
One of the cases that we focused on was the case of Professor Branner, a 74-year-old African-American professor who in August of 2008 filed a lawsuit against the UC Regents and Vice Provost Horwitz, alleging that their actions violated his rights and protections under California law.
We have now learned that UC-Davis Professor George Richard (Rick) Branner, an African-American who began his tenure with the university in 1972, has been ordered to pay $30,000 in attorney fees for filing his suit.
Professor Branner was a professor of Electrical and Computer Engineering, and contends he has been routinely harassed, discriminated against and repeatedly passed over for promotion, despite his outstanding record of academic achievement.
“I thought the stories my Grandfather told me about standing on our front porch, shotgun in hand, as the Ku Klux Klan marched in front of our house were the scariest experiences I could imagine,” Professor Branner stated. Now he says his employment and recent experiences at the hand of UC Davis have become racial nightmares of their own.
Professor Branner, at 74-years–old, is currently the oldest tenured Professor in the department and holds the most seniority. Yet, despite an outstanding teaching record and a large number of well-received publications, Branner’s advancement in the department was slow, and at one point came to standstill.
In fact, Professor Branner once languished seventeen years between promotions. Meanwhile, his counterparts, less distinguished and experienced professors, and almost all white, were promoted ahead of him.
“I believe a lot of what is done to me is because of my race,” Professor Branner contends. “They have dealt with me in ways that they would not have with another professor.”
In early 2008, Professor Branner filed suit against the Regents of the University of California for race discrimination, harassment and retaliation.
Now he says he is fighting for his financial and professional life against UC Davis’s unlimited power, money and ability to unleash wholesale retribution against those who challenge it.
According to a release from his attorney at the Law Office of Mary-Alice Coleman in Davis, “On the recent 43rd anniversary of the murder of Martin Luther King, Jr., New UC Davis Chancellor Linda P.B. Katehi came out with an op-ed piece outlining the great efforts the university has taken to promote diversity and tolerance in light of the racially motivated incidents which occurred last year on the Davis campus.”
But “other actions by UC Davis raise questions about the university’s true commitment to racial equality.”
While Professor Branner and his attorneys allege racial discrimination, UC Davis sees a suit that was frivolous and the use of SLAPP was a mere tool to throw out the lawsuit.
Claudia Morain, Senior Public Information Representative from the UC Davis News Service, told the Vanguard last year, “By definition, a SLAPP lawsuit is one that is meritless. A plaintiff is provided the opportunity to show the court that their lawsuit is one with “minimal merit.” Only if a lawsuit is found to have no merit is it dismissed under the Anti-SLAPP statute.”
She argued that this is precisely what happened in this case. She told the Vanguard, “The court found that the claims by the plaintiffs were meritless, i.e. they fell within the definition of SLAPP. It is the responsibility of the plaintiffs’ attorneys to ensure that the lawsuit had minimal merit, and to advise their clients accordingly. Had that occurred in the lawsuits you reference, these situations would not have resulted.”
On the other hand, attorneys for Professor Branner argue, “The university countered Professor Branner’s lawsuit not with an olive branch but rather, with questionable legal maneuvers.”
According to Professor Branner’s attorney, the university’s most recent act of retribution against the professor is a March 18, 2011 legal notice in which UC Davis demanded the immediate payment of $30,000 from the professor.
According to the university, Professor Branner owes the money because he violated the university’s First Amendment rights when he filed the civil rights suit for race discrimination, harassment and retaliation after years of egregious mistreatment at their hands because of his race. In response to Professor Branner’s lawsuit, UC-Davis filed an “anti-SLAPP” motion in which it argues that it was, in fact, the university’s first amendment rights, not those of Professor Branner, which had been violated.
Thus far, Yolo County Superior Court has agreed with the university’s legal end-run and ordered Professor Branner to pay the UC Davis attorney’s fees, totaling nearly $30,000.
“What they have done,” states Professor Branner’s attorney Tom Gill, “is to use a statute enacted in order to protect individuals, to disallow a respected, African-American University of California Professor from bringing a race discrimination and harassment lawsuit. And now UC Davis is adding insult to injury and truly showing its true intolerance by trying to compel Professor Professor Branner to pay the University’s attorney fees.”
According to the law, Californians are supposed to be free to assert their civil rights without fear of retribution or financial ruin.
Professor Branner says that the fact that he might now have to pay the very institution that discriminated against him is a “very bitter pill to swallow.” If forced to comply with the UC Davis demand to pay the $30,000 in full, the professor admits it might be difficult to proceed with his civil rights lawsuit, now moving toward trial.
What began as a request, by a long-tenured and accomplished professor, for a simple apology for the egregious way he has been treated at UC Davis now may result in his near financial ruin. After devoting his life and career to a university whose chancellor preaches diversity and tolerance, Professor Branner has found himself in an unconscionable situation because that same university has shown him anything but.
Last year the Vanguard had an extensive discussion on the misuse of SLAPP legislation.
Attorney Mary-Alice Coleman argued UC Davis is misusing the anti-SLAPP statute to thwart employees who claim civil rights violations.
According to Ms. Coleman, “The purpose of the anti-SLAPP law is to protect an individual’s constitutional activities of free speech and to petition the government. The law is designed to prevent citizens from suffering the wrath of litigation abuse and bullying by big corporations and big government in connection with ‘public’ issues.”
In contrast to the university’s view, Ms. Coleman argues, “This law has nothing to do with protecting persons who are performing their public duties.”
The original intent of anti-SLAPP legislation was to end a practice conducted at that time mainly by business enterprises, property developers and similar entities, private entities with a big stake in government action who would attempt to prevent citizens from speaking out against their businesses and projects at local city council and planning commission meetings.
According to Terry Francke, Excutive Director of Calaware, an organization that works to protect the right to free speech and open government, “Companies that had this practice took the view that this was just an intolerable interference with their business plan and so they would send these letters to people who stood up and spoke their mind and say that you are defaming us.”
“These letters,” he explained were strategic, “that’s where the word comes from, a strategic means of chilling speech, of shutting people. A very powerful and direct interference of first amendment rights.”
However, these lawsuits were also frivolous, they would not eventually stand up in court because people have the right to speak up at public meetings.
However, for the people involved, the actions were ruinous. “It would be ruinously expensive for them to put on a lawyer defense so that when they ‘win’ by getting the case dismissed, they have to sell their house.” He continued, “So it’s that practice, the combination of ruinously expensive litigation threats that became labeled as strategic lawsuits against public participation.”
Bill Lockyer, when he was in the legislature would end up carrying a bill that would provide an early shield against what seemed to be a SLAPP lawsuit.
Explained Mr. Francke, “The essence is as soon as you file an action, against someone based on what they have said, either about an issue in court or another issue of genuine public interest in a public forum about anything, as soon as you do that, then the defendant who is being sued can file a motion and get the court to force the plaintiff to put on the strong points of the case to show what they have and to do that without further delay, in most cases without discovery.”
He added, “This SLAPP suit procedure has all but wiped out the defamation lawsuit.”
Terry Francke told the Vanguard last year that UC Davis “misses the point which is not that public agency should not have the ability to file anti-SLAPP motions or to use them to dispose of cases that are really not going to go anywhere or will be costly.”
Such use of the law would have a chilling effect on the ability of individuals to bring forward actions that challenge government actors conduct. “I think that if the only people who are entitled safely to bring an action challenging civil rights are the government’s actors themselves, then that needs a lot less defense of civil rights than we’ve become accustomed to,” said Mr. Francke.
“You have to have private enforcement actions like civil rights violations, whistle blower violations, taxpayer challenges to government spending, and other areas where the government may intervene or take an enforcement role but by and large it’s left up to the injured parties or the taxpayers themselves to protect civic and civil rights in court,” he continued.
—David M. Greenwald reporting
This article shows a lack of understanding of how the university works. Let me try to explain:
1. Every professor periodically is evaluated for merit raises and promotions. Their record is carefully evaluated.
2. In almost all cases, professors who are denied advancement feel that they have been unfairly treated. Sometimes this is true, but in the overwhelming majority of cases the denial is justified. A good number of university professors are self-centered, egotistical whiners.
3. There are many avenues for appeal of unfair decisions within the university system.
4. The real problem with the university is that many undeserving faculty get promoted, not vice-versa.
5. Areas such as engineering have very clear criteria for promotion – much more so than the humanities.
6. If we want to keep the cost of the university affordable to low income and middle class Californians, we can’t afford to overpay incompetent faculty or to pay for numerous lawyers and frivolous lawsuits.
So I say, three cheers for this action by the University and let’s celebrate that frivolous lawsuits now carry a cost.
J.R., really?
This particular professor once went seventeen years between promotions while his counterparts, and almost all white, were promoted ahead of him. He was called the “affirmative action” hire by a superior.
I say you are either drinking the university kool-aid or work for their legal department. Which is it?
J.W.
To dmg: Now let me see if I am reading this correctly. Are you advocating that the university should entertain frivolous lawsuits, just because it was an INDIVIDUAL who brought the frivolous lawsuit against the university? Are you saying that universities should not be able to file anti-SLAPP motions, even though they have every legal right to do so? If you are saying universities should not be able to file anti-SLAPP motions, under what authority are you saying a university does not have that right? Who else does not have the right to file anti-SLAPP motions, according to your world view? What’s good for the goose is good for the gander – frivolous lawsuits are frivolous lawsuits, no matter who files them. The professor should have had all his ducks in a row (evidence to back his assertions of discrimination) BEFORE FILING SUIT…
“I say you are either drinking the university kool-aid or work for their legal department. Which is it? “
I notice that you failed to address any of my points.
Did you bother to look at this professor’s academic record and compare it to the record of his colleagues? That is what I assume the court did. It’s not that hard. You can often get a rough idea of an academic’s record by looking at web pages, and I suggest you try that before leaping to conclusions that agree with your (possibly biased?) viewpoints.
Elaine: SLAPP legislation was designed specifically to protect an individual exercising their first amendment rights to speech who was sued by wealth companies with vast resources leaving individual financially crippled or otherwise unable to defend themselves.
I would argue this is near an opposite situation than the one in this case.
There are other ways to deal with frivolous suits.
“That is what I assume the court did.”
Well that’s not what the court would have done at this stage.
To dmg: You didn’t answer my questions:
1) Are you advocating that the university should entertain frivolous lawsuits, just because it was an INDIVIDUAL who brought the frivolous lawsuit against the university?
2) Are you saying that universities should not be able to file anti-SLAPP motions, even though they have every legal right to do so?
3) If you are saying universities should not be able to file anti-SLAPP motions, under what authority are you saying a university does not have that right?
4) Who else does not have the right to file anti-SLAPP motions, according to your world view?
If you are not going to permit the university to bring anti-SLAPP motions, then you have to a) cite what authority there is to prevent it; b) explain precisely who would have the right to bring anti-SLAPP motions in your world view if the university does not have that right. If you can do neither of these things, then what you have is the unintended consequences of a tinkering w the legal system 🙂
Also, are you saying the courts got it wrong, that this was not a frivolous lawsuit?
Elaine:
1. No
2. Yes and I don’t believe they have the legal right to do so because that was not the intent of the legislation – at the very least I advocate tightening up anti-SLAPP legislation to preclude such a use.
3. see No.2
4. I submit on the original intent of the law
5. Correct
David, just what standards do you try to apply when you discuss the law? California’s anti-SLAPP law is nearly 20 years old. It’s been applied and interpreted in more than 300 published opinions. We’re long past the point where you can reasonably respond to Elaine’s obviously rhetorical questions with comments like “they don’t have the legal right” when they [u]do[/u] have the right–established by the law itself and two decades of testing.
And it’s WAY too late to justify your legal analysis by claiming the law must be illegal because somebody’s “original intent” didn’t adequately get incorporated for you, originally or since.
I reviewed your earlier stories, which seem almost word-for-word identical to the newest one. But the most apparent repetition is Elaine’s constant effort to educate you on one of the main foundation supports of our legal system, our laws. The conversation never advances because you constantly ignore her points until pressed, at which time you toss out cavalier responses like these and ignore reality.
None of your stories provides any reporting of or insight into the judge’s decision. When you rely almost completely on the side you favor and their attorneys–and ignore the judge’s rationale and the other side’s opinions–you’re bound to end up so incredibly “flexible” about established law means. You certainly act like the cheerleader for the side with the meritless case.
What’s the news here? That Professor Branner has refused to pay off the court’s judgement that he cover attorneys’ fees in all this time since the court ordered it? That, therefore, the winning attorneys found it necessary to follow up with “a March 18, 2011 legal notice in which UC Davis demanded the immediate payment of $30,000 from the professor”?
“According to the university, Professor Branner owes the money because he violated the university’s First Amendment rights when he filed the civil rights suit for race discrimination, harassment and retaliation [u]after years of egregious mistreatment at their hands because of his race[/u].” Are you really attributing this confession of discrimination to the university?
It looks as though–in some loose, backhanded way–you’re disagreeing with the University’s contention that:[quote]”The court found that the claims by the plaintiffs were meritless, i.e. they fell within the definition of SLAPP. It is the responsibility of the plaintiffs’ attorneys to ensure that the lawsuit had minimal merit, and to advise their clients accordingly.”[/quote]
[quote]”If forced to comply with the UC Davis demand to pay the $30,000 in full, the professor admits it might be difficult to proceed with his civil rights lawsuit, now moving toward trial….Yolo County Superior Court has agreed with the university’s legal end-run and ordered Professor Branner to pay the UC Davis attorney’s fees, totaling nearly $30,000.”[/quote] So, the “chilling effect” blows in. [quote]”Now he says he is fighting for his financial and professional life against UC Davis’s unlimited power, money and ability to unleash wholesale retribution against those who challenge it….What began as a request, by a long-tenured and accomplished professor, for a simple apology for the egregious way he has been treated at UC Davis now may result in his near financial ruin.”[/quote] Are you even trying to be serious at all here? An accomplished professor with 50 years of tenure here faces “financial ruin” if he pays off the judge’s mandatory decision–granting attorneys $30,000 in costs incurred while defending against his invalid, abusive lawsuit? Give me a break.
Question: Is Professor Branner’s legal team working pro bono or on a contingency basis? Will they treat him so shabbily now that he’s near destitution that his own legal fees will put him into bankruptcy? Will you celebrate his attorney–who obviously has provided him very poor advice to this point–when the bills come pouring in?
JS:
I refer you back to the comments from Terry Franke – an attorney who specializes in first amendment law.
He said, UC Davis “misses the point which is not that public agency should not have the ability to file anti-SLAPP motions or to use them to dispose of cases that are really not going to go anywhere or will be costly.”
Such use of the law would have a chilling effect on the ability of individuals to bring forward actions that challenge government actors conduct. “I think that if the only people who are entitled safely to bring an action challenging civil rights are the government’s actors themselves, then that means a lot less defense of civil rights than we’ve become accustomed to,” said Mr. Francke.
That is the view I ascribe to. You can argue he is wrong, or that you disagree with him, but that’s my view. These laws were designed to protect individuals from having their right to speak up at public meetings violated.
I’m not sure I agree that these anti-slapp laws have been applied in this manner for 20 years. I’d be interested in seeing citations for that.
“Are you really attributing this confession of discrimination to the university? “
No, that’s a quote from the attorneys for Prof. Branner.
I disagree that the lawsuit is meritless.
“An accomplished professor with 50 years of tenure here faces “financial ruin” if he pays off the judge’s mandatory decision–granting attorneys $30,000 in costs incurred while defending against his invalid, abusive lawsuit? Give me a break. “
So I assume you could pay out $30,000 without financial ruin.
I don’t have the answers to your other questions, perhaps you should ask them.
JustSaying has made some very acute observations. Bottom line, dmg, is that you alone don’t get to decide what the law is. If the courts awarded the University a $30K judgment, I think it is fair to say the University was legally permitted to file an anti-SLAPP motion. The professor in question is free to appeal that judgment, but I don’t see anything in your description that indicates he plans to. As I have explained before, it is not uncommon for “newly” (and this isn’t even new law) enacted laws to have unintended consequences. If you don’t like the unintended consequences, take it up w the Legislature…
[i]”Is Professor Branner’s legal team working pro bono or on a contingency basis?”[/i]
That is a very good question.
At a critical time (I thought) in my career, I was passed up for an expected promotion. I looked for some protected victims’ group I could join. I contact the ACLU to see if they would represent me. Unfortunately as a WASP male, there were no group protections. The UCLU just laughed at me.
Happily for me, I eventually got over the sting of rejection, analyzed my true strengths and weaknesses, and realized that there were valid reasons why I was passed up. I resolved to work on my weaknesses, switched jobs, and never looked back.
Note that I am still very good friends with my old boss… the one that promoted one of my employees over me. I am also still very good friends with that old employee. In fact, he is now a business consultant and I hire him periodically.
I think it is laughable that this professor is accusing one of the main bastions of political correctness for race discrimination. I don’t know this professor, but I would ask him why he stayed working for an organization that obviously did not value his skills and abilities over other candidates. My guess is that he was/is blind to, or in denial of, some of the things that would be considered his professional deficiencies and/or growth and development opportunities. If I were him… at this late date in our civil rights movement… in this state… at a university… I would have greater faith in the natural tendencies of bosses to pursue their self interest of promoting people that are the best fit for a job despite the color of their skin. Considering this would maybe allow him to gain some introspection that would be the first step in his self-improvement to help his career advancement opportunities. I would also advise him to consider that sometimes advancing a career means extracting oneself from a chair and finding another job.
Tenure is, and always has been, a stupid idea. Maybe he should file a lawsuit against tenure.
I don’t know enough about the situation since this article is only one sided; but I have had employees owning a great inability to accept constructive criticism and quick to pull a race, gender or age card. The existence of the perceived extra protections was their worst career enemy, because they used the fear of employment lawsuit as a personal defense mechanism. It gave them some dysfunctional sense of power and entitlement. They wielded it combatively. It caused all their managers to minimize or avoid having the type of direct conversations that they, as employees, needed for their growth and development. Consequently their template of discrimination became a self-fulfilling prophesy… and the cycle continued.
At some point the concept of race discrimination becomes a blinding self-destructive excuse. Maybe the good professor should consider filing a lawsuit against political correctness.
Elaine: You’re right I don’t get to say what the law is. My word carries no weight in that regard. I do get to opine about the law, criticize the application of the law, and criticize the actions of public entities who choose to use or misuse a law. If others agree, may be it carries weight, if not, then it does not.
[i]”In fact, Professor Branner once languished seventeen years between promotions. Meanwhile, his counterparts, less distinguished and experienced professors, and almost all white, were promoted ahead of him.”[/i]
David, what evidence do you have that his counterparts who ‘were promoted ahead of him’ were less distinguished?
Although this does not contradict your claims*, it’s worth noting that the faculty employed by the Department of Electrical and Computer Engineering are racially and ethnically quite diverse.
There are 31 people listed as “departmental faculty,” one of whom is G. Rick Branner. Of those 31 (based on their photos), it appears that 17 of them (including Chancellor Katehi) are of white, European heritage. The other 14 include a number of Arabs, South Asians and East Asian Orientals.
There are also 4 listed as adjunct professors: two whites, two East Asians.
Finally there is a diverse group of 16 emeritus profs, many of whom were the fathers of some of the smartest kids I grew up with. No wonder Roland Soohoo and Lilly Hsia were so damned smart.
*I am not challenging the professor’s claims. I have no basis for doing so, other than the court believed his claims were without merit. I mean to challenge your claims where you opine that those promoted ahead of Prof. Branner were less qualified for promotion and seem to presume he was bypassed because there was a prejudice against him by his white colleagues on the basis of his race, all the while other non-whites were treated fairly.
I’m working on a follow up that will hopefully answer some of my questions.
[i]”The other 14 include a number of Arabs, South Asians and East Asian Orientals.”[/i]
Not that it matters–especially given the fact that race is ultimately a cultural fiction–but do Arabs with Caucasian features count as white or as something else? Is the ultimate distinction simply how much melanin they have, so a lighter skinned Arab counts as white but one with a strong suntan does not?
Here, for example, is Prof. Khaled Abdel-Ghaffar, who is on the UCD ECE faculty:
[img]http://www.ece.ucdavis.edu/images/profiles/abdel.jpg[/img]
Another member of that faculty is Hussain Al-Asaad:
[img]http://www.ece.ucdavis.edu/images/profiles/alasaad.jpg[/img]
I wonder if they are deemed ‘white,’ they are guilty of holding back Prof. Branner?