Showing posts with label bullying. Show all posts
Showing posts with label bullying. Show all posts

Tuesday, June 29, 2021

UMass Lowell stands with First Amendment, for now, in row over student tied to neo-Nazi hate group

Weed Hall at UMass Lowell
(photo by Ktr101 CC BY-SA 3.0)
UMass Lowell seems, so far, to be taking a principled position in a controversy over a student tied to a neo-Nazi group.

According to Patch, the University of Massachusetts Lowell sent a letter to students and faculty last week saying that it could not suspend a student tied to a neo-Nazi, hate group simply because of the association.  At the same time, the university pledged to investigate specific threats, alleged crimes, or incidents of hate speech, and to enforce the Student Code of Conduct.

The student in question appeared on a live-stream posted on Telegram, and re-posted to Twitter by a watch group, with the founder of "NSC-131," an organization founded in opposition to Black Lives Matter and identified as a hate group by the Anti-Defamation League, Patch reported earlier this month.

A Change.org petition, with more than 11,000 signatures at the time of this writing, accuses UMass Lowell of being "blatantly permissive of not only racism and hate speech (which they state is protected under Freedom of Speech) but outright criminal activity and Neo-Nazism" in protecting the student.  The petition accuses the student, by name, of having violated already the Student Code of Conduct and, through alleged participation in the January 6 Capitol riot, the state vandalism lawPatch reported the appearance of NSC-131 at the Capitol riot, but no personal involvement by the student.

I appreciate the university's principled free speech stance—so far.  I hope the university does not cave to pressure and remains cognizant of the First Amendment's vital anti-majoritarian and "safety valve" functions.  It is crucial, especially in combating hate, that we refrain from prosecuting thoughtcrime, or its mere expression, else we are no better than the haters.

The problem with instruments such as the Student Code of Conduct is that they're easily applied unconstitutionally, regardless of whether they're facially constitutional.  The code in question, for example, calls on students to show "respect and protection for persons and property," and respect is defined as "acting to enhance the safety, well-being and freedom to allow all persons to pursue their legitimate aims," including all persons, i.e., "non-community members," 

The code stops short of defining a specific offense for lack of respect.  Rather, "interpersonal misconduct" includes

creat[ion of] an intimidating, hostile, or offensive working or academic environment. A single, unusually severe incident may constitute intimidation, threats, or bullying.  Any pattern of unwelcome conduct directed specifically at another person that threatens or endangers the physical or mental safety or property of that person (or a member of that person’s family or household) or creates a reasonable fear or intimidation of such a threat or action.

The code adds, "The University has special concern for incidents in which persons are subject to such conduct because of membership or perceived membership in a racial, ethnic, religious, gender, or sexual orientation group."

That definition comports with First Amendment restriction on anti-harassment law, as long as the definition is observed in its particulars.  The terms refer appropriately and essentially to a "specific[] ... []other person" and to a "reasonable" response.  Administrators do not always parse so finely.  The Change.org petition encourages all readers to "file a report with student conduct," offering a link, regardless, it seems, of whether the filer has had any contact at all with the student of concern.

I have personal experience with administrators' loose understanding of academic freedom.  The "Principles of Employee Conduct" for the UMass System call on UMass employees "to conduct themselves in ways that accord respect to themselves and others."  That might sound merely aspirational.  But I was once adjudged guilty of violating the policy for accusing staff of misfeasance.  There was no contention that I was wrong on the facts.  But I was threatened with firing, despite my tenure.  No punishment was imposed after I pledged to sue in my defense—not a bluff.

In 2017-18, I served as a faculty delegate on an ad hoc campus committee formed at the behest of the campus chancellor to create an "anti-bullying" policy.  We faculty delegates agreed that workplace bullying was already impermissible under existing policies and state law.  The university seemed interested in having specifically an "anti-bullying" policy principally just to say that it does.  So we drafted a proposal that was substantively duplicative of existing norms, mindful of the First Amendment and academic freedom, and added a detailed procedure that would protect faculty in the event of ill founded and opportunistic accusation by administrators.

That, apparently, was not the right answer, because our proposal was buried in the bureaucratic bog.  Now I've been asked to serve on a committee again, in the next academic year, to do the work over, for a new chancellor.  Maybe we'll get it "right" this time.

Tuesday, September 3, 2019

Lewinsky calls for online civility, will speak twice in South Coast Massachusetts this academic year

Goodman as Linda Tripp, Molly Shannon as Lewinsky, in
1998 (SNL). President Clinton's escapades were good business
for SNL, which released a Best Of collection in 1999.

Monica Lewinsky has become a public figure in a whole new light in recent years, leaving behind the scandal that took her name, rather than his, mostly to differentiate scandals.  As Time put it, "Monica Lewinsky" was once the butt of a joke, many jokes.  John Goodman playing Linda Tripp (see WaPo reemergence in 2018) made for instant-classic Saturday Night Live bits (see Tripp's later perspective and a brief recollection with Goodman).

The world has changed, #MeToo, and Lewinsky figures into it differently today.  She has described herself as an original victim of cyber-bullying, before it was a thing.  Aptly, she's become an outspoken advocate against it, and a mite more effective in that capacity than the present First Lady.  Lewinsky broke her relative silence in Vanity Fair in 2014 and subsequently became a VF contributor and Twitter personality.  John Oliver interviewed her on Last Week Tonight in his excellent program on "public shaming" (below) (cf. Jon Ronson's definitive 2016 treatment of the subject in his book, So You've Been Publicly Shamed, featured here on The Savory Tort in 2017).


Apparently Lewinsky's "second act" is only getting going.  Among her many projects, she is contributing to the fall 2020 season of American Crime Story, on FX, The Hill reported, in which Sarah Paulson will play Linda Tripp decidedly more darkly than John Goodman did.  Meanwhile on stage, Lewinsky has become an advocate for online civility.  Building on her 2015 TED talk, The Price of Shame, she's booked into an aggressive public speaking agenda.


I can't help but find Lewinsky to be a compelling figure.  Aside from her curious, mostly involuntary role in American history, she embodies the mass media's power to destroy reputations with the impunity the First Amendment affords.  Yet her story unfolded in the highest of political arenas, the American executive office, in which First Amendment values are most urgently implicated, and First Amendment absolutism is most persuasively justified.  Whatever the merits of the case that shaped her perspective, she shares today a meritorious message: If the internet can be tamed, to do more good than harm, it will be by people and their choices, not by law and regulation.

Lewinsky is slated to speak in South Coast Massachusetts in fall and spring.  On October 17, 2019, Lewinsky will give an endowed lecture at Bridgewater College (more from WHSV).  On May 15, 2020, Lewinsky will speak in the New Bedford (Massachusetts) Lyceum at the Zeiterion Performing Arts Center ("the Z"); tickets are on sale now.


Friday, March 22, 2019

Roundup and other stories: Monsanto, Sandy Hook, Aaron Hernandez, Monica Lewinsky, Summer Zervos, and One Montana Statute

A number of stories have broken in the last couple weeks that, ordinarily, I would like to write about on this blog.  I've been traveling a good deal and unable to keep up, so here's a short, uh, roundup.  Hat tip to my Torts II class, which is ever vigilant.



Strict product liability—Roundup.  In phase one of a bifurcated trial proceeding, plaintiff Edward Hardeman succeeded in causally tracing his cancer to glyphosate, the active ingredient in Roundup herbicide.  (NYT, Mar. 19.)  Bayer, which purchased Roundup maker Monsanto, saw its stock price tumble on the German exchange, Fortune reported.  This finding follows the notorious $289m award (later reduced to $78m) entered in favor of Dewayne Johnson against Monsanto in California state court in August 2018 (Phys.org), now on appeal (Justice Pesticides).  Recap is tracking Hardeman v. Monsanto, 3:16-cv-00525, in federal court in the Northern District of California.





Gun liability—Sandy Hook.  The Connecticut Supreme Court issued its long awaited ruling in the Sandy Hook families' case against gun maker Remington, allowing the case to go forward on one theory of Connecticut consumer protection law.  (NYT, Mar. 14.)  The court delivered 4-3 upon the dubious conclusion that the U.S. Congress, in immunizing gun makers from liability upon a host of tort theories, did not mean to preempt remedies under state consumer protection statutes such as the Connecticut Unfair Trade Practices Act.  The dissent was unpersuaded.  Meanwhile many a pundit had commented on the gun regulatory response pending in New Zealand since the Christchurch attack, marking the contrast with U.S. legislative paralysis amid shootings here.  The case is Soto v. Bushmaster Firearms International, LLC, No. SC-19832.



Wrongful death, collateral estoppel—Aaron Hernandez.  The Massachusetts Supreme Judicial Court reinstated the conviction of former NFL player Aaron Hernandez in the June 2013 murder of Odin Lloyd.  Lower courts had thrown out the conviction after Hernandez hanged himself in prison in 2017.  Massachusetts law appeared to require that the conviction be vacated upon the common law doctrine of "abatement ab initio," because the defense appeal was not resolved when the defendant died.  Instead the Massachusetts high court held that the doctrine is antiquated, and the record should read "neither affirmed nor reversed."  In the case of Lloyd, the victim's mother had settled her civil claim.  But the Court recognized 
the potential impact abatement ab initio can have on collateral matters, including undermining the potential application of issue preclusion....  There are a host of potential other interests than can be affected by the outcome of that prosecution and, although we must be mindful not to let any one of those other interests override a defendant's rights, they are worthy of recognition when considering the best approach to follow when a defendant dies during the pendency of a direct appeal.
The case is Commonwealth v. Hernandez, No. SJC-12501 (Mass. Mar. 13, 2019).



Invasion of privacy, infliction of emotional distress—Monica Lewinsky.  John Oliver did a brilliant segment on, and interview with, Monica Lewinsky on his Last Week Tonight.  Looking back at comedians' crass jokes in the 1990s—Oliver includes himself, but it's Jay Leno who is cringeworthy—makes one uncomfortably aware of how far #MeToo has evolved our perception of power dynamics in the workplace.  The sum of the experience is newfound empathy and more than a little angst over online bullying. I now follow Lewinsky on Twitter, as she's a more effective anti-bullying spokesperson than Melania Trump.




Defamation, Supremacy Clause—Summer Zervos. The Appellate Division of the New York Supreme Court ruled that Summer Zervos's defamation suit against President Trump may go forward despite the President's constitutional objections.  Zervos alleges that Trump defamed her through his spiteful attacks on her credibility over claims of his sexual misconduct after she was a contestant on The Apprentice.  In Clinton v. Jones style, the President sought to have a stay in the action until his White House service concludes.  The U.S. Supreme Court rejected that claim in Clinton, ruling that the lower court could manage the case with deference to the demands of the presidency—a conclusion, incidentally, that might have been proved erroneous in light of subsequent events.  Anyway President Trump tweaked the tack, arguing that because this case arises in state law in state court, vertical federalism, as expressed in the Supremacy Clause, should not permit the arguably untenable subservience of a sitting President to the supervisory authority of the state court.  The Appellate Division concluded 3-2 that the problem can be managed; as in the past, for example, a President might testify via video.  Some court orders might violate supremacy, the court explained, such as a contempt ruling, but that mere possibility does not warrant stay of the action in its entirety.  The Appellate Division also ruled that the charge essentially of "liar" is not mere rhetorical hyperbole, but is capable of defamatory meaning.  The case is Zervos v. Trump, No. 150522/2017 (N.Y. App. Div. Mar. 14, 2019).



Criminal libel, First Amendment—Montana statute.  The U.S. District Court for the District of Montana struck down the state's criminal libel statute for want of an actual-malice-as-to-falsity standard of fault.  The case arose from an ugly dispute in election of a county district judge.  The statute came close to the actual malice standard, requiring knowledge of a statement's defamatory character, but making no mention of recklessness.  The federal court acknowledged that the state high court had read First Amendment standards into other state statutes.  But the criminal libel law had been applied without modification.  Moreover, although the law originated from 1962, before New York Times v. Sullivan and Garrison v. Louisiana in 1964, the legislature had amended the statute more than once, in fact once amending it to ensure truth as a defense, so had passed up chances to bring the statute into full constitutional conformity.  Recap is tracking Myers v. Fulbright, No. 9:17-cv-00059-DWM-JCL (D. Mont. Mar. 18, 2019).  Professor Eugene Volokh wrote about the case for Reason.

Tuesday, February 27, 2018

City not liable for bullying that resulted in child's quadriplegia, Mass. supreme court holds (and note on infantilization of faculty in higher ed)


The Massachusetts Supreme Judicial Court (SJC) affirmed application of the Massachusetts Torts Claims Act (MTCA) to protect the City of Lynn, north of Boston, from liability in a tragic bullying incident that resulted in the permanent paralysis of the victim, a fourth grader.  The case is Corimer v. Lynn, No. SJC-12323 (Feb. 27, 2018).

The boy's mother had reported bullying and harassment of her son on "multiple occasions" in the 2007-08 school year.  Ultimately bullies pushed the boy down stairs, resulting in damage to his spinal cord and in quadriplegia.

The 1978 MTCA waives sovereign immunity, but a public actor may be held liable for the tort or violence of a third party only if the public actor "originally caused" the "harmful consequences."  Mass. G. L. c. 258, § 10 (j).  The courts have struggled to interpret that language, but have, as the SJC restated the rule, looked for "an affirmative act that materially contributed to creating a condition or situation that resulted in [plaintiff's] injuries."  A failure to act is distinguished.

The school left the bullies in class in proximity to the plaintiff, and we may assume arguendo that the school was negligent in failing to protect the plaintiff.  Even so, those failures were "'too remote as a matter of law'" to represent material contribution to the plaintiff's injuries.  In essence, then the "originally caused" standard seems to effect a causation-at-law analysis heightened above even the stringent inquiry invoked upon an intervening criminal actor.  On the same basis, the court rejected ancillary plaintiff theories predicated on negligent hiring, supervision, and retention of school staff.

The SJC acknowledged "that bullying is a serious issue" comprising "the emotional pain of day-to-day harassment" and sometimes, as here, "horrific physical consequences."  "[T]he elementary school could have and should have done more to protect [the plaintiff]."  Nevertheless, the operation of the MTCA is textbook, furthering the "public policy [of] some reasonable limits to governmental liability in order for taxpayers to avoid a potentially catastrophic financial burden."

Allow me a tangential observation about bullying policy:  

Many workplace entities, private and public, and including my own, are busily about the business of formulating "anti-bullying" policies.  At least in the academic context, I find these efforts nothing less than an end-run of contract, tenure, and academic freedom, calculated to suppress dissent and vigorous debate.  This SJC case indirectly illustrates the problem.  

Bullying is a concept derived from the K12 environment.  In the adult workplaceespecially in the academic workplace, where the very job is the exercise of free expression—bullying is co-extensive with harassment, discrimination, tort, and crime.  All of those were present in Corimer, harassment even before the child was physically injured.  There is no need for a separate policy purportedly to enforce civility (as if such a thing even were possible) among adults.  Any effort to create such a policy is nothing more than an authoritarian perversion of modish terminology—on campus, the infantilization of the faculty—and a disservice to children who truly are bullied in school.

Tuesday, October 4, 2016

Mass. SJC refuses worker-union privilege in civil discovery



The Massachusetts Supreme Judicial Court refused to find a worker-union evidentiary privilege in a civil lawsuit by an educator against her school, affirming the Superior Court.

Nancy Chadwick, a Massachusetts teacher at Duxbury High School and former president of the Duxbury Teachers Association, alleged bullying and harassment by a direct supervisor, leading to her dismissal.  She sued for discrimination and retaliation in December 2014.  At issue in discovery were 92 emails sought by the defendant and alleged by the plaintiff to be protected by a union-union member privilege.

The SJC, per Justice Hines, refused to recognize the privilege under Massachusetts labor law or in common law.  The Court recognized that labor statutes at both the state and federal level, the latter per National Labor Relations Board precedent, can privilege communication by union members.  But looking to the apparent intent of the legislature in Mass. Gen. L. ch. 150E, the Court reasoned that the scope of that privilege is the protection of collective bargaining rights, not the furtherance of a civil lawsuit.

In the common law analysis, the Court admonished that its power to recognize privilege under Evidence Rule 501 to be “exercised sparingly.”  The Court observed that the Supreme Court of Alaska recognized a broad privilege under state statute in 2012.  But that is the minority position.  New Hampshire declined to find a privilege in grand jury proceedings in 2007.  And a California appellate court opined in 2003 that the authority to create such a privilege should rest with the legislature.

The SJC agreed that “the Legislature may be in a better position to decide whether to create a privilege and, if so, to weigh the considerations involved in defining its contours.”  McCormick on Evidence (3d ed. 1984) was quoted in a parenthetical: “It may be argued that legitimate claims to confidentiality are more equitably received by a branch of government not preeminently concerned with the factual results obtained in litigation, and that the legislatures provide an appropriate forum for the balancing of the competing social values necessary to sound decisions concerning privilege.”  Moreover, the SJC found “speculative” any harm that might result to the plaintiff for the court’s refusal to recognize the privilege.

In a footnote, the SJC clarified that its decision did not diminish inherent judicial powers to award protective order, as under civil procedure rule 26(c).

The decision is significant in part because Massachusetts is regarded as a state (or commonwealth) friendly to organized labor.  The SJC decision asserts a conservative view of separated powers such as to interpret statute and to evolve the common law under rule 501.  The latter especially has implications for other potential common law privileges, such as the journalist’s privilege.  Also, because the decision arises in the context of public employment, the lack of union privilege may have implications for construction of sunshine laws that incorporate common law and “other law” confidentiality by reference.

The case is Chadwick v. Duxbury Public Schools, no. SJC-12054 (Oct. 4, 2016) (PDF).