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Gibson’s Bakery v. Oberlin College – Appeal Brief Filed – NAACP Supporting College

Gibson’s Bakery v. Oberlin College – Appeal Brief Filed – NAACP Supporting College

Oberlin College takes a kitchen-sink approach, while the NAACP tries to turn this into a case about race.

Oberlin College and Dean of Students Meredith Raimondo have filed their Appeal Brief (pdf.) in the Gibson’s Bakery case. The NAACP also has filed an Amicus Brief (pdf.) in support of the college. Full copies of both briefs are at the bottom of this post.

The Oberlin College Brief is redacted because some information was filed under seal (the information at issue in the various motions to unseal we previously covered). It’s not clear whether any Amicus Briefs will be filed supporting the Gibsons, to my knowledge no one is coming to their assistance.

Gibson’s Bakery has 20 days to respond, unless they get an extension of time.

Do you really need me to explain the case to you at this point? See here for a gazillion posts about the case.

NAACP Brief

The NAACP Amicus Brief is the easiest to deal with. It’s a political document, not a legal argument. It’s clearly meant to try to shame and/or bully the court into thinking this case has national implications for race relations.

The issues presented in this case are directly relevant to the work of the NAACP. The damages awarded to the plaintiffs in this case are based on a studentorganized boycott in protest of a Gibson’s bakery employee’s violent actions against an African-American student, the police department’s response to the incident, and the bakery’s historically discriminatory treatment of African-Americans. Not only are these issues at the core of the NAACP’s mission to eradicate racial injustice, the NAACP also has a longstanding commitment to defend its right and the rights of all people to engage in free speech.

Despite being drafted by the national law firm Jenner & Block, it bears almost no relationship to the actual facts of this case. It pretends that this is a case about Oberlin College being held liable for supporting a student boycott of the bakery. It then cites cases about how support for boycott activity is protected, and how government officials can’t sue people who protest against them. None of that has anything to do with the legal theories upon which the Gibsons recovered.

The Gibsons’ primary complaint is that Oberlin is associated with certain of its students that organized a boycott of the Gibsons’ bakery in protest of a bakery employee’s violent actions against an African-American student, the police department’s response to the incident, and the bakery’s historically discriminatory treatment of African-Americans.1 Even if Oberlin did provide support to its students—a point that was heavily contested—it cannot be held liable for a simple reason: boycotts like the one concerning the bakery that “vindicate rights of equality and of freedom” are a core First Amendment-protected activity.

***

In this case, the Plaintiffs were awarded damages from Oberlin for the college’s support or participation in a protest organized by its students. Plaintiffs also were awarded damages from Oberlin for the students’ creation and distribution of a flyer describing the assault of the student and the police response and referencing the bakery’s prior history of racial discrimination.

That is a complete misstatement of what the case is about. A shocking misstatement, but the point of the brief clearly is to make this a case about race, which it is not.

Oberlin College Brief

More serious is Oberlin College’s Brief, which takes a kitchen sink approach. In 29 pages of text they throw in dozens of alleged trial court errors. It reads like a 50-page brief squeezed into 29 pages, and indeed, the college tried to get the usual 35 page limit increased to 50 pages but were turned down by the court. The readability of the Brief suffers for that.

I don’t have time tonight to thoroughly analyze the Brief, but I can give some initial impressions (and readers can add to it in the comments) in no particular order:

• The college again portrays this as a case of being held liable for student speech. But that’s not what happened, as I’ve written (and the Gibsons have argued in court papers) dozens of times. This is not a “free speech” case, it’s a case about alleged libelous statements in flyers spread by the Dean of Students, and the facilitation of spreading libelous statement in a student senate resolution.

“This appeal arises out of a protest by Oberlin students of a well-known bakery bordering the campus on Tappan Square. Believing that Allyn Gibson Jr.’s public altercation with a black student—stemming from the bakery’s chase-and-detain policy—was racially motivated, the students called for a boycott. The bakery and its owners sued Oberlin, claiming it should have censored its students’ speech.”

• One of the main grounds for the appeal is that the trial court improperly denied summary judgment. That strikes me as an odd basis for an appeal. While appeals bring up everything for review, summary judgment is a procedure that requires a court to dismiss prior to trial claims as to which there are no material factual disputes and as to which a party is entitle to judgment as a matter of law. Oberlin College got many of the claims dismissed on summary judgment, but some survived for trial. What difference does the summary judgment ruling make now that we have a trial record with a lot more evidence presented in court than presented on summary judgment? It would be truly odd for an appeals court to say that summary judgment should have been granted dismissing the claims on a limited factual record when there is a full trial record supporting the verdict. Yet that is one of the main points in the Appeals Brief.

• This statement is a footnote was disputed. There was testimony that Raimondo was leading and directing the protest with a megaphone. She disputes that, but that factual dispute is for the jury. It serves no purpose on appeal to lose credibility by making it seem as if this is not disputed

“1 Raimondo did not join the students’ chants during the protests, or create or hold signs. Tr., Vol. III, 122. She used a megaphone to introduce herself, telling students she was there to make sure the protest remained safe and lawful and advising them where they could rest and get food and beverages. Id. at 126-127; Tr., Vol. XIII, 62-63.”

• Oberlin College filed under seal material it never attempted to introduce at trial documents regarding Allyn Gibson’s private Facebook entries. Allyn, the store clerk who stopped the shopifter, was not a party in the case and didn’t testify. Nonetheless, Oberlin College as part of its post-trial public relations campaign to smear the Gibson’s as really racist, references the material in its Brief. I don’t know what it says, because it’s redacted, but the appeals court judges will see it. This is a shady tactic, put before the appeals court judges inflammatory material you didn’t even bother to offer at trial regarding someone who wasn’t a party and didn’t testify.

Consider this post a work in progress. I’ll add to it over the weekend as I come up with more points. So keep checking back.

———————

Gibson’s Bakery v. Oberlin College – Appeal – Appellants’ Brief by Legal Insurrection on Scribd

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Gibson’s Bakery v. Oberlin College – Appeal – NAACP Amicus Brief by Legal Insurrection on Scribd

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Comments

healthguyfsu | June 5, 2020 at 9:37 pm

Oberlin seems determined to do two things:

1. Tie this up as long as humanly possible to inflict maximal vindictive damage.

2. Judge shop up the appeals circuit until they can find a sympathetic bench activist’s ear.

    notamemberofanyorganizedpolicital in reply to healthguyfsu. | June 5, 2020 at 10:01 pm

    Shame if Antifa torches Oberlin…..

    notamemberofanyorganizedpolicital in reply to healthguyfsu. | June 5, 2020 at 10:06 pm

    Methinks this the hill that NAACP….

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    I agree. Even though I have had my ears boxed about this* I am 100% convinced Oberlin is trying to get a “Resistance” Federal judge to swoop in and save them.

    (* Yeah, I know – the Federal courts are not involved in the appeals process. So what? Since when has the law or the Constitution stopped a lefty Federal goon-in-black-robes from doing exactly what they wanted? On the eve of the current Democrat-instigated race war we had the People’s Democratic Republic of California, John Roberts, the Democrat Justices, and 99% of the media solemnly inform us that peacefully assembling in a church to pray and worship constituted an existential threat to the Republic. Less that 24 hours later these same bozos held that left wing terrorists suddenly had the inalienable right to assemble by the thousands and commit rape, murder and mayhem.)

    OwenKellogg-Engineer in reply to healthguyfsu. | June 6, 2020 at 8:31 am

    Exactly. Introduce Allyn Gibson’s sealed Facebook posts, by way of Brief, showing the arguably ‘racist’ comments, and bring in the NAACP with a back-up Brief, and let the fishing commence….

Check out this article on Oberlin College. Looks like well deserved troubles are piling up for them:

https://www.insidehighered.com/news/2017/12/12/oberlin-faces-budget-crunch-due-missed-enrollment-targets

A smaller-than-expected freshman class is continuing to cause budget issues at the Ohio institution. Professors are tired of salary freeze.

Oberlin College has been showing signs of strain as leaders of the well-off liberal arts college in Ohio seek to close a multimillion-dollar budget deficit driven by lower-than-expected enrollment this year.
The strain became evident most recently when The Oberlin Review, the college’s student newspaper, obtained and published a letter written this summer by two faculty members objecting to a salary freeze. The letter, which the student newspaper published Friday as Oberlin’s Board of Trustees was scheduled to meet, said it is “inadequate and depressing that neither the board nor the administration has the leadership or imagination to address this crisis in any way other than by eliminating raises for faculty and staff.”
But the publication of the faculty letter was just the latest in a string of moves by a college grappling with a structural budget deficit. A group of trustees tasked with examining Oberlin’s financial model recently found that the institution — which includes both a college of arts and sciences and a prestigious conservatory — relies too heavily on cash from gifts. It does not draw enough of its cash from charging students for tuition, room and board, according to a letter publicly posted in October by Chris Canavan, the chair of the Oberlin Board of Trustees.

..

    jb4 in reply to ConradCA. | June 5, 2020 at 10:26 pm

    That was dated December 2017, although between the publicity around the Gibson’s matter and Covid concerns poor enrollment may also be the situation this Fall. However, they might be able to manage this for some years by just becoming less selective and taking a bigger percentage of applicants. But, fewer and fewer families may be willing to pay $75K list prices for that.

      JimWoo in reply to jb4. | June 5, 2020 at 10:47 pm

      Only crazy people would go there now. I sure wouldn’t pay top dollar for what has been shown to be a liberal nuthouse run by inept buffoons. They may not exist in 4 years.

        jb4 in reply to JimWoo. | June 5, 2020 at 11:11 pm

        With roughly a billion endowment, I think there is no chance of failure in anything like that time frame. However, it is possible that a trend downward becomes apparent that makes eventual failure a reasonable possibility.

          stevewhitemd in reply to jb4. | June 6, 2020 at 12:17 am

          Gentle reminder: a billion dollar endowment does not mean that the College can tap a billion dollars. For almost all universities and colleges, much of an endowment’s funds are restricted.

          For example: Jane Doe gives a college $10 million as a restricted gift to fund a Women’s Center. Great, fine, but that $10 million can’t be spent on anything other than the Women’s Center.

          Another example: Joe Doe gives a College $100 million for a new engineering program. It’s done at $10 million a year for 10 years with specific performance metrics for each year (faculty hired, co-funds generated, etc.). The entire $100 mil goes on the books as part of the endowment, but if the college muffs the terms in year 2, they don’t get the rest of the money (theoretically; there’s a lot of give and slop in this sort of thing).

          So be careful in assessing a college’s endowment. There should be public reports but these are dense reading and frequently don’t tell you everything you’d want to know about that endowment.

        You just hit the nail on the head: only crazy people will there. And they will get degrees. And multiply.
        And join black fasist groups. And join Jew-hate groups.

Here I thought leftists were all about redistribution of wealth, but I guess that is only when it isn’t THEIR wealth being taken for such purpose.

The NAACP is like Sharptongue. Always looking for their pound of flesh whenever and wherever they can get it.

This bakery has been unfairly targeted over this incident. I hope this issue comes to a close in their favor soon. Justice delayed is justice denied. This is especially true in this case.

The Friendly Grizzly | June 5, 2020 at 9:59 pm

The NAACP sides with the college. I’m so shocked…

    The NAACP’s brief is so disconnected from the actual case that I don’t think they’re even trying to actually influence the case. I think they wrote this to impress some big donors, and possibly some big ones on the Oberlin Board. That frees them to to on some long virtue signaling, We Hate Racists! tour-de-force, while ignoring every actual finding in the case.

    As a legal document affecting this case, their brief is nonsense. As a political document meant to impress supporters and donors, it’s brilliant.

The faculty is upset with a salary freeze?

It appears that they teach the students nothing but left wing propaganda and racial hatred so whatever they are paid is way too much.

Surely there must be a list of wealthy alumus who are disgusted with this woke legal adventurism. The hallowed name of Oberlin is being squandered. Where is the Board of Trustees? The best thing to do in a situation like this is for a wealthy alumnus to demand being courted, dined and feted for a huge cash endowment and tie up as many administrators as possible, for as long as possible – and then walk away…..just in time for the next wealthy alumnus. Reverse Alinsky-ism, the right tool for the job

I at one time believed that once their board of trustees met and reviewed everything that happened in this case, the adults in the room would step forward to do what was needed to remediate this before this current president and whoever is advising her drove situation Oberlin over the cliff. There don’t appear to be any such adults, at least not in the majority.

    notamemberofanyorganizedpolicital in reply to maxmillion. | June 5, 2020 at 10:46 pm

    Colleges get to pick most of their board members (cronies).

      IIRC only about 6 of the 30 board members are elected by the alumni.

      In a way Oberlin dodged a bullet this Spring since another alumni class didn’t show up for their 25th reunion only to learn about Gibsons.

      In her State of the College address a few weeks ago twillie talked about the $10-15M deficit for this year, but no where in that discussion did she mention the $10-15M that the social justice adventurism has likely already cost the college in legal, PR, and bond fees. Of course, for all we know, an outside party may have already picked up these costs. As i stated from the get-go, this whole issue is about the ability of the Left to use accusations of racism as a weapon. Until this trial, there was never a downside to doing that. But already we have seen CNN cave in the case of the Sandmann trial, and you sure don’t see people being called out the way it used to happen. Those with deep pockets are very careful with their words these days, and will continue to be until Oberlin manages to squeek out a win. And if Oberlin doesn’t, well, then they will be persona non-grata in leftist circles for being the ones who “blew it.”

        notamemberofanyorganizedpolicital in reply to MajorWood. | June 6, 2020 at 1:46 am

        Wow I’ve never heard of a college have such a large number of board members – must be like the DEMS wanting 18 or 24 or so Supreme Court Judues…….

    At a minimum, if cooler heads did not prevail, I thought there might have been one or two who would have resigned in protest and made a public statement. Chris Canavan’s term as Chairman of the Board of Trustees runs out at the end of this month. He is an associate of George Soros. It will be interesting to see who replaces him in that position.

Morning Sunshine | June 5, 2020 at 10:58 pm

At the rate this case is going, plus the general dismal state of academic affairs in this country, the Gibsons will own an empty but beautiful college campus… I do not know that that will be a blessing for them.

It will be a great day for truth and justice when/if Oberlin deservedly losses on appeal. The college’s arrogance, manifest dishonesty and self-congratulatory sanctimony throughout this entire sage are appalling. But, what else do we expect from Dhimmi-crats?

That the NAACP has signed onto this farce should surprise no one. This once-laudable organization has long since descended into dishonest race agitation and fan-flaming.

lawyers gonna lawyer
billable hours matter

Diversity and exclusion, witch hunts, and warlock trials.

The NAACP has long become a political slave to Democratic Party causes, way over estimating its legal acumen. It is, and has been for years, using race as a scale tipper in legal argument. “I am a black attorney and therefore entitled to win” and variations. It does not argue equal rights..it argues grievance with no foundation. Being black does not make one right. Law does.

More race-hustler b.s.

Don’t dignify it.

notamemberofanyorganizedpolicital | June 6, 2020 at 2:27 am

Send this to everyone at Oberlin.

A message from our leader.

https://mobile.twitter.com/graysonk9966/status/1269002515946897408

HairyBuddah | June 6, 2020 at 3:24 am

I have tried to follow this case pretty closely. I have certainly read the fast majority of LI posts on the subject. So sorry if I just missed the obvious.

I don’t recall ever hearing specific examples of the bakery having committed acts of racial profiling and discrimination in the past. I would think that at some point during the trial that either the college or some students would have tried to prove that accusation. Maybe something like “In 1982 I applied for a job there and was denied the job because I was black” or “All throughout 1999 every time I went shopping there the white customers were always served first.” or “The little shop still sells aunt jemima syrup.”

I have seen lots of protest signs claiming racism but don’t recall every hearing examples of what Gibson’s actually did that was wrong? Did I just miss it all, or were no actual examples ever presented. Sure the young Gibson chased a black student thief out of the door. But the black student thief had actually stolen stuff. Were white kids allowed to shoplift with impunity?

    DirtyRich in reply to HairyBuddah. | June 6, 2020 at 7:46 am

    From what I remember from the LI coverage, their evidence of racism largely constituted of witnesses simply claiming that there was, but no actual identification of specific incidences.

    Oberlin tried to get the police to refer shoplifting incidents to the college for adjudication, with the implication that it was not rare. As to Gibson’s being racist, many, up to possibly even Ambar, seemed bigger on talking about “lived experience” than actual examples.

    PostLiberal in reply to HairyBuddah. | June 6, 2020 at 8:41 pm

    As my comment below points out, Ted Koppel asked President Ambar for “specific incidents.” President Ambar provided none, just “perception.”

I am disgusted by the harassment of this bakery by Oberlin. They have made a mountain of feces over what was, and should be viewed as a minor incident.
Thoroughly disgusted!

All the posts here so far ignore the point that Oberlin College is not being punished for the speech of its students, as President Ambar claims, but for managerial incompetence. The college, unlike virtually all other colleges, has no apparent policy for who can speak on behalf of the college and commit the college to an official position.

Moreover, there has been no effort by the college to date to state that the 8% or so of the protesting student body was not speaking officially for the college but was speaking for itself. I have emphasized this point repeatedly in earlier posts on https://oberlinchaos.com.

So an amicus brief is nothing but a suggestion to the judge based on anything the “amicus” decides is important. Other than keeping a “brief” brief by limiting it to 35 pages, are their any legal standards that could be actionable should a corrupt judge disregard the established findings? How could a judge allow a trial to proceed to final judgment by jury were the facts presented so far removed from the truth as the brief argues? Wouldn’t there be grounds for a judge to be disbarred were he/she to allow this brief to change the jury’s ruling?

Also, is it mandatory for judges to allow amicus briefs at all? If so, how many? Forever?

Obviously, this is a very important case for some very big interests far beyond just a small college. Oberlin is being bankrupted for a “higher” cause. It would be useful to know if Oberlin is getting financial help and who that would be.

What a show. I’m on the way to Sams Club to buy their bags of popcorn. Somebody else can handle ticketing.
.

Convicted by soundbite of allegation. Stir up the crowd,convicted, you are now a racist forever. Same as we are seeing in the protests now. Any protester that media asks cannot articulate an actual change needed. “Systemic racism” and we are all guilty just because they say so.

>> and the bakery’s historically discriminatory treatment of African-Americans. <<

OK, not a lawyer, but did the NAACP just set themselves up for a defamation lawsuit by Gibson's.

Of are they going off the same "feelings" as Twillie so eloquently expressed in the Koeppel interview?

danvillemom | June 6, 2020 at 12:04 pm

I am looking forward to visiting Gibson’s Bakery on our road tour of the Upper Midwest of USA in August. Thank you for providing the information on this case.

Further evidence that the NAACP is now a racist organization.

I really don’t think the bankruptcy court will be interested in any of this

blacksburger | June 6, 2020 at 6:09 pm

“I have seen lots of protest signs claiming racism but don’t recall every hearing examples of what Gibson’s actually did that was wrong?”

I have heard one accusation. There are chairs and tables on the sidewalk in front of Gibson’s for the use of its patrons. One day some black students sat there, and were told that those chairs were reserved for customers. They said, “Racists” and walked off.

    MajorWood in reply to blacksburger. | June 7, 2020 at 12:27 am

    Are you kidding? Five generations of stable heterosexual patriarchy. They are monsters, I tell you, MONSTERS! /s, and only needed for those new to LI, obviously. 😉

PostLiberal | June 6, 2020 at 8:19 pm

NAACP brief:

The issues presented in this case are directly relevant to the work of the NAACP. The damages awarded to the plaintiffs in this case are based on a studentorganized boycott in protest of a Gibson’s bakery employee’s violent actions against an African-American student, the police department’s response to the incident, and the bakery’s historically discriminatory treatment of African-Americans.

In Ted Koppel’s interview of President Ambar, he asked for “specific incidents” regarding Gibson’s “discriminatory treatment of African-Americans.” She could not provide any such “specific incidents” -only “perceptions.”
Ted Koppel: Despite verdict, Oberlin College President still “makes allusions to a pattern of racist behavior” by Gibson’s Bakery.

KOPPEL: …. But to this day, the president of Oberlin makes allusions to a pattern of racist behavior, if not the specific incident that set things off three years ago.
AMBAR Well, the students pled guilty to the shoplifting. Um, there has been some debate about whether it was shoplifting or false ID.
KOPPEL: It was both..

President Ambar should have known that the incident involved BOTH shoplifting and false ID. Anyone who had been reading LI knew that. The nonsense continues:

AMBAR: Right. Well, I think that, that one of the things that the college has always said is that the college has not, doesn’t condone shoplifting, doesn’t condone bad behavior by its students in any way, shape or form. But what led up to the protest, and I think that’s sort of kind of the core issue here, was some series of things that happened before. Some perspectives about people’s experiences in the store.
KOPPEL: Tell me about, tell me about those then. And be specific. What specific incidents are you referring to that happened before?
AMBAR: Right, well, I think that the specific incidents would be, the perception by faculty and students and staff and other people in the town that there had been disparate treatment with respect to people of color in the store. The way I would phrase it, kind of different lived experiences.

If President Ambar can’t provide any such “specific incidents,” but only “perception.” what is the NAACP using to prove “the bakery’s historically discriminatory treatment of African-Americans?”

Inquiring minds want to know.

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