Wrongly portraying itself as the victimized defender of student free speech reflects an administration ill prepared to handle an existential crisis of confidence and credibility.

Oberlin College President Carmen Twillie Ambar has staked out an aggressive posture in reaction to the massive $11 million compensatory and $33 million punitive damage verdicts awarded Gibson’s Bakery and its owners against Oberlin College and its Dean of Students, Meredith Raimondo.

Those verdicts likely will be reduced under Ohio’s tort reform law, but still likely will be in the 8-figure range, how high in the 8-figures will be one of the major post-trial fights.

As previously covered, immediately after the $33 million punitive damages verdict, Ambar issued a statement via blast email vowing to fight Gibson’s Bakery Verdict:

“Let me be absolutely clear: This is not the final outcome. This is, in fact, just one step along the way of what may turn out to be a lengthy and complex legal process.”

Ambar continued that aggressive approach in another blast email accompanying a Frequently Asked Questions document. Those FAQs repeated the prior false claim that Oberlin College was held liable for student speech.

The claim that Oberlin College was held liable for student speech was the main focus of an NPR Interview today with Ambar. Here is a partial transcription, listen to the whole thing below:

Q. What are your concerns about this judgment? Ambar: Really, that this is a First Amendment case about whether whether an institution can be held liable for the speech of its students. And the actions of its students. And I think it’s important whether you’re a progressive or a conservative. Whether you are a small business owner or a large employer about whether you can be held responsible for the speech of people who either work for you or are part of your community. So that’s really what this case is about and I think it’s important for us to talk about it in that way even as we can get into some of the disputed facts around this issue.

Ambar went on to claim, as was claimed at trial, that Dean of Students Meredith Raimondo was at the protest only to help ensure the peace, as required by Oberlin College policy. A listener to the interview who was not familiar with the facts would not know that there was testimony by witnesses that Raimondo orchestrated the protest and the handed out of the defamatory flyers. The jury heard conflicting testimony and apparently did not believe Raimondo.

(if player doesn’t load, listen here)

It is clear that Oberlin College has settled on the claim that it is the defender of student free speech as a crisis management theme.

We have explored many times why the assertion that the college was held liable for the speech of students is false. Oberlin College was held liable for the actions of its administrators, including the Senior Vice President and Dean of Students, in spreading the defamatory statements. The college may dispute the facts, but the legal theory of liability cannot be disputed.

There is a separate legal issue as to whether the accusations against Gibson’s were defamatory or constitutionally protected opinion, but that has nothing to do with the erroneous vicarious liability narrative.

Here is what the judge wrote in denying the defendants’ summary judgment motion, and allowing the libel claim to proceed to trial (Order here):

Defendants argue that Plaintiffs have presented no evidence that either Oberlin College or Meredith Raimondo published the flyer. Under Ohio law, publication constitutes “[a]ny act by which the defamatory matter is communicated to a third party […].” Gilbert, at 743 (quoting Hecht v. Levin, 66 Ohio St.3d 458, 460 (Ohio 1993)). “As a general rule, all persons who cause or participate in the publication of libelous or slanderous matter are responsible for such publication. Hence, one who requests, procures, or aids or abets, another to publish defamatory matter is liable as well as the publisher.” Cooke v. United Dairy Farmers, Inc., 2003-0hio-3118, K 25 (Ohio Ct. App. 10th Dist.) (citing Scott v. Huff (1970), 22 Ohio App.2d 141, 144, 259 N.E.2d 160 and 53 Corpus Juris Secundum 231, Libel and Slander, Section 148). “Thus, liability to respond in damages for the publication of defamation must be predicated on a positive act.” Id. “Nonfeasance, on the other hand, is not a predicate for liability. Mere knowledge of the acts of another is insufficient to support liability.” Id. Here, it is undisputed that Meredith Raimondo presented at least one individual, Jason Hawk, with a copy of the protest flyer. The remaining evidence surrounding the distribution of the flyer, and the explanations for doing so, are in dispute. But Plaintiffs have presented testimony from individuals who say they observed Raimondo and other Oberlin College employees handing out flyers at the protest. Further, Plaintiffs offered evidence that Defendants permitted the protesters to make copies of the flyer on the Oberlin College Conservatory’s Office’s copy machine during the protests and provided protesters with refreshments and gloves for use during the protests. Weighing all of this evidence in Plaintiffs’ favor, the Court finds there are genuine issues of material fact regarding whether Defendants published the flyer.

It’s clear that the theory of liability was not vicarious based on student or even faculty speech but was based on the actions of Raimondo and other administrators.

There is nothing novel in a corporation being held liable for the actions of its employees, particularly senior employees and officers, acting within the scope of their employment. It’s not even clear the college raised this as a defense—it may have, I haven’t reviewed all the hundreds of papers filed, but it wasn’t addressed by the judge when the college sought summary judgment dismissing the case.

The crisis management strategy of falsely claiming Oberlin College was held libel for student speech is another indication that the current college administration is ill-prepared to salvage Oberlin College from becoming the next Antioch College, as the Editorial Board of the Pittsburgh Post-Gazette warned, Oberlin run amok: After student crimes, college attacks the victims:

Oberlin is at a crossroads. It must take stock and correct course — no more political correctness for the sake of appearances or image, no more defense of student misbehavior. The college must admit that it erred and that the owners of the bakery acted as any business owners would under similar circumstances. More shenanigans like this could put Oberlin out of business at a time when so many liberal-arts schools are struggling to fill their classrooms. That’s what happened to Antioch College, also once a distinguished Ohio liberal arts school. It was overcome with unthinking and fashionable leftist radicalism and it made itself a joke. Now it is a pale shadow of its former self. Is this the route Oberlin would like to go?

For Oberlin College, “sorry” seems to be the hardest word.

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