Punished For Refusing Exam “Leniency” For Black Students? UCLA Prof. Gordon Klein’s Case is Going To Trial
California Superior Court dismisses several counts, but key claims survive motions to dismiss and under the anti-SLAPP statute. Trial scheduled for April 2023.
Gordon Klein is a professor at UCLA’s Anderson School of Management. What happened to Klein, which is now the subject of a lawsuit, is among the most insane circumstances we have seen in the dozens of post-George Floyd academic cancel culture cases we have followed.
This was all part of the immediate post-George Floyd panic and purge in academia that consumed or almost consumed anyone who dissented from BLM and other radical orthodoxy (including yours truly). Students, administrators, and faculty were waiting to pounce on any thought infraction.
Suspension, Reinstatement, and Lawsuit Against Dean Bernardo And UCLA Regents
Our first post about Klein was on June 10, 2020, after Klein appeared on Tucker Carlson, UCLA Prof Living Under Police Protection for Refusing to Exempt Black Students From Exams:
After widespread backlash against UCLA, including a Change.org Petition supporting Klein signed by over 75,000 people, Klein was reinstated, as we reported on September 16, 2020, UCLA Reinstates Prof Suspended for Refusing to Change Exam or Grades for Black Students.
Klein was represented by the Foundation for Indivicual Rights in Education, which posted this blog entry at the time of reinstatement:
VICTORY: UCLA reinstates professor suspended for email on why he wouldn’t change exam, grading for black students
The University of California, Los Angeles, reinstated a professor who was put on mandatory leave for the tone of an email to a student who asked him to alter his grading policies for black students during the protests surrounding the killing of George Floyd.
The Foundation for Individual Rights in Education called on UCLA in June to reinstate lecturer Gordon Klein, citing the university’s academic freedom promises, as well as its obligations under the First Amendment. Klein faced public backlash for his email, including a petition for his firing signed by more than 20,000 people.
“We’re happy to confirm that Gordon Klein is teaching once again, and hope that in the future UCLA will consider its constitutional obligations before throwing educators out of the classroom,” said Katlyn Patton, author of FIRE’s June 10 letter to UCLA. “UCLA investigated his ‘tone’ in an attempt to quell public backlash. But regardless of how many people demand his firing, UCLA cannot justify using that anger to erode Gordon’s rights.”
Klein later filed a lawsuit against Dean Antonio Bernardo and the UCLA Board of Regents, which we covered on September 28, 2021, UCLA Prof. Gordon Klein Sues After Suspension and Smears For Refusing Preferential Exam Treatment For Black Students. In a post at the Bari Weiss Substack, Klein explained why he was suing:
Why I Am Suing UCLA
Recently, I was suspended from my job for refusing to treat my black students as lesser than their non-black peers.
Let me back up: I teach at UCLA’s Anderson School of Management, and I’ve been doing this for 40 years. I’ve taught 15 different courses, in finance, accounting and law. CNBC has had me on; I’ve been quoted in The Wall Street Journal.
My saga — which nearly led to my firing — began on the morning of June 2, 2020, when a non-black student in my class on tax principles and law emailed me to ask that I grade his black classmates with greater “leniency” than others in the class. “We are writing to express our tremendous concern about the impact that this final exam and project will have on the mental and physical health of our Black classmates,” the student wrote. (There was no project in this class, and it was unclear to me who the “we” in this case was. I suspected the student simply used a form letter he found online and neglected to change the subject.) “The unjust murders of Ahmaud Arbery, Breonna Taylor and George Floyd, the life-threatening actions of Amy Cooper and the violent conduct of the [University of California Police Department] have led to fear and anxiety which is further compounded by the disproportionate effect of COVID-19 on the Black community. As we approach finals week, we recognize that these conditions place Black students at an unfair academic disadvantage due to traumatic circumstances out of their control.”
The student then requested that the final be a “no harm” exam — meaning it should be counted only if it boosted one’s grade. “This is not a joint effort to get finals canceled for non-Black students, but rather an ask that you exercise compassion and leniency with Black students in our major.” (As I noted in my legal complaint, the student clarified, in a subsequent conversation with a university investigator, that he “intended that the requested adjustments apply to Black students and not the class generally.”)
The Complaint focused heavily on communications from Dean Antonio Bernardo about Klein. An Amended Complaint was filed, which did not materially change the nature of the claims, but added more details.
1. Plaintiff Gordon Klein (“Plaintiff”), a professor at the University of California, Los Angeles (“UCLA” or “University”), was severely punished by UCLA after he refused to implement a different grading policy solely for black students.
2. This dispute originated in June 2020 when a non-black student asked Plaintiff to grade his “Black classmates” differently than other students. Plaintiff rejected this request, knowing that his employment contract – and California law – required him to apply the same grading standards and requirements to all students. He also refused because his faculty supervisor recently had encouraged instructors to reject requests for special exam accommodations.
3. After Plaintiff’s email reply to the student was posted on social media, some furious individuals called Plaintiff “woefully racist” and organized an online campaign to attack Plaintiff and the UCLA Anderson School of Management (“Anderson School” or the “School”), where Plaintiff teaches. The Anderson School hastily buckled under this pressure and sought permission from the University to impose disciplinary sanctions on Plaintiff, including terminating his employment.1 But, as noted below, the University rebuffed the Anderson School, warning that “the School may not take any action . . . at this time” against Plaintiff.
4. Despite this firm directive, the Anderson School administration abruptly suspended Plaintiff from his teaching duties, banned him from its campus, and hired others to replace him in future scheduled courses. Moreover, the Dean of the Anderson School, Defendant Antonio Bernardo (“Bernardo”), disparaged Plaintiff to alumni and the general public based on the private communications between Plaintiff and the student who had requested preferential race-based grading policies (the “Student”). Dean Bernardo even went so far as to publicly disclose the adverse personnel action the School had improperly imposed on Plaintiff.
5. After examining the facts, the University eventually closed its investigation and reinstated Plaintiff.2 Later, the UCLA Senate Committee on Academic Freedom criticized the Anderson School administration, noting that it had violated Plaintiff’s rights and, more broadly, that such conduct “chills” instructors from expressing views that differ from prevailing campus orthodoxy.
6. Plaintiff brings this action not only to redress the wrongful conduct he has endured but also to protect academic freedom.
The Counts alleged were:
1. BREACH OF CONTRACT;
2. VIOLATION OF RIGHT TO PRIVACY BY PUBLIC DISCLOSURE OF PRIVATE FACTS;
3. VIOLATION OF RIGHT TO PRIVACY BY PLACING PLAINTIFF IN A FALSE LIGHT;
4. RETALIATORY DISCRIMINATION IN VIOLATION OF LABOR CODE § 1102.5(c);
5. COMMON LAW RETALIATION IN VIOLATION OF PUBLIC POLICY;
6. NEGLIGENT INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE; AND
7. BREACH OF EMPLOYER’S STATUTORY DUTY OF POLITICAL NEUTRALITY
The Request To Change Grading Policies
What started this ball rolling downhill was an alleged request to change grading policies in order to accommodate black students reacting to the George Floyd killing. In the Amended Complaint, Klein alleged (emphasis in original, underscoring added):
26. On June 2, 2020, Plaintiff received from one of his students (“Student”) the following “copy and paste” email mirroring the foregoing template:
We hope this email finds you well. As non-Black students, we are writing to express our tremendous concern about the impact that this final exam and project will have on the mental and physical health of our Black classmates. The unjust murders of Amhaud Arbery, Breonna Taylor, and George Floyd, the life-threatening actions of Amy Cooper, and the violent conduct of the UCPD in our own neighborhood have led to fear and anxiety which is further compounded by the disproportionate effect of COVID-19 on the Black community. As we approach finals week, we recognize that these conditions will place Black students at an unfair academic disadvantage due to traumatic circumstances out of their control.
We cannot begin to understand the pain that our Black classmates are going through. As we work to advocate in our communities and become better allies, we ask that you, as administration, do your part and prioritize equity in our learning environment. We implore you to mandate that our final exam is structured as no-harm, where they will only benefit students’ grades if taken. In addition, we urgently request shortened exams and extended deadlines for final assignments and projects.
Our Black classmates are directly facing the consequences of state-sanctioned violence and graphic content on social media that transcends from Minneapolis to our very own communities in our hometowns and in Westwood.
In light of these traumas, we have been placed in a position where we must choose between actively supporting our Black classmates or focusing on finishing up our Spring Quarter. We believe that remaining neutral in times of injustice brings power to the oppressor, and therefore, staying silent is not an option. This is not a joint effort to get finals canceled for non-Black students, but rather an ask that you exercise compassion and leniency with Black students in our major.
As of today, May 31st, a petition drafted yesterday by the Afrikan Student Union at UCLA to adjust final exams has received 10.5k signatures. Although we greatly appreciate the email we received from you about anti-racist resources, the voices of the student body demand action within our academic environment, and we should be grateful to hear from you regarding the ways our department will respond.
As quickly as Luskin came to support students for the COVID-19 pandemic, we ask that you do the same in supporting the community that is most vulnerable during this crisis. Thank you for your time, and we look forward to continuing this dialogue with you. [Emphasis in original.]
The email from the student to Klein at issue was also attached to a Declaration later filed by Klein (emphasis added):
Klein alleges in footnote 10 to the Amended Complaint:
12. On June 2, 2020, I received an email from one of my students (“Student”) requesting that I implement a “no-harm” grading structure for my final exam as a display of “compassion and leniency with Black students.” The Student had taken a course of mine in the previous academic quarter during which we developed a cordial relationship that included lively and robust in-person discussions after class. I understood the Student’s email to have been a request for unlawful racial preferences, and I responded with rhetorical questions aimed at educating the Student as to the impropriety of racial preferences. A true copy of my email exchange with the Student (“Email Exchange”) is attached hereto as Exhibit 6.
10 When asked by a University investigator to clarify his email’s objective, the Student stated that he “intended that the requested adjustments apply to Black students and not the class generally.”
According to the Amended Complaint (par. 27), Klein responded as follows:
Thanks for your suggestion in your email below that I give black students special treatment, given the tragedy in Minnesota.
Do you know the names of the classmates that are black? How can I identify them since we’ve been having online classes only?
Are there any students of mixed parentage, such as half black-half Asian? What do you suggest I do with respect to them? A full concession or just half?
Also, do you have any idea if any students are from Minneapolis? I assume that they probably are especially devastated as well. I am thinking that a white student from there might possibly be even more devastated by this, especially because some might think that they’re racist even if they are not. My TA is from Minneapolis, so if you don’t know, I can probably ask her.
Can you guide me on how I should achieve a “no-harm” outcome since our sole course grade is from a final exam only?
One last thing strikes me: Remember that MLK famously said that people should not be evaluated based on the “color of their skin.” Do you think that your request would run afoul of MLK’s admonition?
That response was shared on the internet, and well, the rest is history. It sparked protests and the administrative actions at issue in the lawsuit.
One thing that will be of interest in that in a Declaration filed with the Court, Bernardo denied the characterization that special treatment was requested for black students:
7. The content of Klein’s June 2, 2020 email response to Student X was outrageousand inexcusable and entirely unacceptable for a UCLA lecturer to engage in. During a time when students were seeking compassion and understanding, Klein’s remarks demonstrated a level of callousness and disrespect which I believe was harmful to our students. Contrary to Klein’s allegations, Student X’s letter was sent with the intent of requesting accommodations for all students, not just Black students. This is a point Student X clarifies in his follow up email to Klein. Exhibit A also contains the true and correct copy of Student X’s response to Klein….
18. I exercised my First Amendment right to publish statements to the Andersoncommunity denouncing the tone of Klein’s email, and affirming Anderson’s commitment to respect, equality, and inclusivity. This was imperative given that Klein’s email response was a public matter which affected UCLA and the Anderson community. The First Amendment protects the marketplace of ideas and I had a right to express my opinion as Klein had to express his.
19. I believe Klein misled the media, which accepted and spread, that he wassuspended “for refusing to treat [his] black students as lesser than their non-black peers.” This is an absolutely false and severely damaging narrative, which discredits the merits of Black students who worked and studied hard, and earned their grades, during a time of social and emotional turmoil for all. Klein either was, or should have been, fully aware that he was placed on leave due to the blatant disrespect he showed, not because of any alleged refusal to grant special requests for Black students. Klein retained The Foundation for Individual Rights in Education (“FIRE”) to represent his academic freedom interests. It is my understanding that UCLA responded to FIRE and made it clear that the real reason behind Klein’s leave was the disrespect he showed. Klein’s claims are meritless and indeed disingenuous, given that he either was aware, or should have been aware, of the actual and justified reason behind the leave. In his most recent media tour and this suit, Klein continues to promote the fiction that he was placed on leave for not providing unequal accommodations for Black students. Klein’s continuing to perpetuate the myth that he was placed on leave for refusing to provide accommodations for Black students is damaging to hardworking Black students, to me, UCLA, and the Anderson community.
From the text of the student’s email request, a reasonable interpretation by a reader would be that special treatment (“leniency”) was requested for black students. While the requested “no harm” grading would apply to all students by the terms of the email, it was requested specifically for the purpose of protecting black students. The student allegedly told UCLA investigators he meant for the new policy only to apply to black students. So I don’t know if Bernardo’s explanation will hold water at trial.
KEY COUNTS SURVIVE ANTI-SLAPP AND DISMISSAL MOTIONS
Bernardo and UCLA Regents responded to the lawsuit by invoking invoking the California anti-SLAPP statute, claiming that Klein’s lawsuit was retaliation for the defendants exercising their own First Amendment rights to comment on matters of public importance. Defendants sought dismissal of the case pursuant to anti-SLAPP protections, which provides an expedited process for adjudication of whether the claims fall under the statute. Defendants also filed a Demurrer (motion to dismiss) the First Amended Complaint as legally insufficient apart from the anti-SLAPP statute.
Late last week, on March 30, 2022, the California Superior Court rendered it’s Decision on both motions. Procedurally, it’s very confusing to people who do not practice in California Superior Court. In California Superior Court a judge issues a Tentative Decision, then the parties can object to that Tentative Decision, and only when the Tentative Decision is adopted by the Court is it a final decision. So the adopted decisions still have the tile on them “Tentative Decision,” but I’m going to call the the Anti-SLAPP Decision and Demurer Decision.
Here, the additional confusing nature is the way in which the anti-SLAPP defenses were addressed in the Anti-SLAPP Decision– this is not the style of decision you (and I) are used to reviewing. Plaintiff’s Notice of Ruling, dated March 31, 2022, which recites, among other things that the court adopted both of its prior Tentative Decisions:
PLEASE TAKE NOTICE that on March 30, 2022, Defendants Antonio Bernardo and The Regents of the University of California’s (“Defendants,” collectively”) Anti-SLAPP motion and Demurrer to Plaintiff’s First Amended Complaint, and Plaintiff Gordon Klein’s (“Plaintiff”) Motion to Conduct Specified Discovery were heard in Dept. O of the above-captioned Court, the Hon. H. Jay Ford, III, presiding. The Court, having considered the moving, opposing, and reply papers of all parties, and having heard argument of counsel, took the matter under submission. Later, on March 30, 2022, the Court adopted its tentative rulings as to each motion, true and correct copies of which are attached hereto as Exhibit 1.
The Demurer Decision appears at page 4 of the pdf. and the Anti-SLAPP Decision appears starting at page 11 of the pdf. The short version is that several of Prof. Klein’s key claims survived, though several claims were dismissed.
Here’s the summary at the start of the Anti-SLAPP Decision (emphasis added):
Defendants The Regents of the University of California and Antonio Bernardo’s SLAPP Motion is GRANTED in part and DENIED in part. Defendant is to submit a proposed order consistent with the ruling that specifically identifies by page and line and quotes the allegations of protected conduct the Court orders stricken.
With the exception of the 2nd and 3rd causes of action for public disclosure and false light, Plaintiff’s causes of action are based on mixed protected and unprotected conduct. The only protected conduct successfully identified by Defendants for purposes of the 1st prong of SLAPP is the June 4, 2020 email by Bernardo and the Public Attacks alleged in the FAC.
Defendants’ SLAPP is GRANTED as to the allegations of the transmittal of the June 4, 2020 email and the “Public Attacks” (i.e. public disclosure of the Confidential Personal Action and “publicly attacking Plaintiff”) as alleged in the 2nd cause of action for public disclosure of private facts (only Bernardo named), 4th cause of action for retaliatory discrimination in violation of Labor Code §1102.5 as to both Defendants, 5th cause of action for common law retaliation as to both Defendants, 6th cause of action for negligent interference with prospective economic advantage as to Defendant Regents, the 6th cause of action for negligent interference against Bernardo to the extent based on the Public Attacks, 7th cause of action for breach of employer’s duty under Labor Code §1102 (only Regents named). Plaintiff failed to make a prima facie showing that these allegations would support a judgment in his favor arising from the June 4, 2020 email and Public Attacks as to each of these claims. The allegations regarding the June 4, 2020 email and the Public Attacks are stricken from these causes of action. Because the 2nd cause of action for public disclosure is based solely on the public disclosure of the Confidential Personnel Action in the June 4, 2020 email, that entire cause of action is dismissed per SLAPP.
Defendants’ SLAPP is DENIED as to the June 4, 2020 email and the Public Attacks as alleged in the 1st cause of action for breach of contract (alleged against Regents only), the 3rd cause of action for false light (against Bernardo only), and the 6th cause of action for negligent interference against Bernardo as to the June 4, 2020 email. Plaintiff makes a prima facie showing that would support judgment in his favor as to each of these claims. Defendants fail to establish that any of these causes of action are barred as an issue of law by the plethora of affirmative defenses raised.
The breakdown on the Demurer Decision tracked the Anti-SLAPP Decision (emphasis added):
(1) MOOT as to the 2nd cause of action for public disclosure;
(2) SUSTAINED WITHOUT LEAVE TO AMEND as to the 5th cause of action for common law retaliation (against Bernardo and Regents) and 7th cause of action for breach of duty of neutrality under Labor Code §1102 (against Regents only);
(3) OVERRULED as to the entirety of the 1st cause of action for breach of contract (against Regents only) and 3rd cause of action for false light (against Bernardo only);
(4) OVERRULED as to the 4th cause of action for retaliation in violation of Labor Code §1102.5(c) as to Regents;
(5) SUSTAINED WITHOUT LEAVE as to the 4th cause of action for retaliation in violation of Labor Code §1102.5(c) as to Defendant Bernardo;
(6) SUSTAINED WITHOUT LEAVE as to the 6th cause of action for negligent interference as to Regents;
(7) OVERRULED as to the 6th cause of action for negligent interference as to Bernardo.
So the case moves forward, if I have parsed this confusing recitation correctly, with the Breach of Contract (against Regents only), False Light (against Bernardo only), Negligent Interference (against Bernardo only), and Retaliation In Violation of Labor Code (against Regents only).
KEY DAMAGE CLAIM SURVIVES – TRIAL SET FOR APRIL 23, 2023
According to the Notice of Ruling:
PLEASE TAKE FURTHER NOTICE that on March 30, 2022, a Case Management Conference was held, and the Court set a date for trial and other pre-trial hearings. Specifically, a Jury trial is scheduled for April 17, 2023, at 10:00 am in Dept. O of the above-referenced Court.
Will it get to trial? A normal court procedure would be for there to be a motion for summary judgment asserting that the material facts are undisputed and the law requires dismissal. The anti-SLAPP process, however, provides an expedited review of whether there is enough evidence to support the claims, at least whether they fall under the anti-SLAPP statute. While I don’t think that precludes later motions practice, there already has been a review of evidence by the court and the court found that the claims are legally cognizable. So it’s unclear to me what the path would be to get the remaining parts of the case dismissed prior to trial.
That could be important because a substantial nature of Klein’s alleged damages covered by the remaining claims is that his expert witness business has been seriously damaged:
65. Plaintiff also has suffered substantial loss of income as a proximate result of defendants’ public disclosure of the Confidential Personnel Action and other unlawful conduct herein alleged. Since approximately 2008, Plaintiff has maintained a highly successful private consulting practice as an expert witness (“Expert Witness Practice”). The Expert Witness Practice – of which Defendants were well aware at the time of their actions and the events alleged herein – has served as Plaintiff’s principal source of income and is conducted independently from his University commitments.
66. As a proximate result of Defendants’ unlawful conduct herein alleged, Plaintiff began losing clients of the Expert Witness Practice immediately following media reports in June 2020 of these actions and events. Media reports intensified after Defendants publicized the Confidential Personnel Action and undertook public attacks against Plaintiff. For example, on or about June 3, 2020, Plaintiff was interviewed for an expert witness engagement by lawyers from one of the premier law firm clients of the Expert Witness Practice, following which the attorney and client immediately agreed to retain Plaintiff. That day, an intermediary who arranged for the interview emailed Plaintiff stating: “Gordon, good news! [The attorney and client] would like to retain you for the  case.” A few days later, however, after Defendants’ unlawful public disclosure of the Confidential Personnel Action had been widely reported by the media, Plaintiff’s engagement on the case was terminated. Plaintiff has not received any further work from this premier client. In addition, the intermediary with whom Plaintiff had a longstanding business relationship modified its website to eliminate any mention of its association with Plaintiff, and its marketing head has ceased all communications with Plaintiff.
67. Similarly, also on or about June 3, 2020, another longstanding elite law firm client of the Expert Witness Practice suddenly terminated Plaintiff’s existing engagement on a major antitrust case. This client even refused to pay an invoice that Plaintiff previously had transmitted for past services rendered regarding this ongoing case.
68. Simply put, the Expert Witness Practice largely dried up as a proximate result of Defendants’ unlawful conduct herein alleged.
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