After the Gibson’s Verdict: What Is at Stake

The jury’s massive $44 million award in the lawsuit filed by Gibson’s Bakery and the Gibsons against Oberlin College (reduced by the judge to $25 million and likely to rise again as lawyers’ fees are tacked on) continues to generate national attention as well as negative editorials slamming the College. I am dismayed, to say the least, by the media’s portrayal of Oberlin as a college that delights in bullying local merchants, condones thievery, and promotes what one editorial writer labeled as “cruel, malicious, and vicious mob tactics.”

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Students protesting in front of Gibsons, November 2016

Having lived in the town and worked at the college for more than three decades, I know Oberlin as an institution that tries to take its local responsibilities seriously. College administrators, faculty, and staff are certainly aware of the ways, large and small, that its nearly 3,000 undergraduates can irritate the residents of this small town. Students wander across the streets seemingly oblivious to on-coming traffic, ride bicycles on downtown sidewalks, walk shoeless in December snows, and, yes, shoplift. This is not a defense of those actions, certainly not of shoplifting which, as I wrote earlier, is an infuriating example of class privilege as performed by some students. College administrators have never excused stealing even if they lack the means of putting an end to it.

But the outrage generated against student protesters who sparked the events at Gibson’s in November 2016 (“Jacobin mobs,” one person called them) seems extreme even in an age of extremes. Where, for example, were commensurate displays of anger when University of Michigan frat boys at a drunken ski party caused over $400,000 in damages, or when their counterparts at the University of Maryland trashed a villa in the Poconos?

 

Ohio State Students Riot

Ohio State students in full riot mode. Photo: Toledo Blade.

Western civilization didn’t teeter at the cliff’s edge when an estimated 10,000 Kentucky students swarmed the streets of Lexington, overturning cars and setting fires after its basketball team stuffed Louisville. And yet the 125 Oberlin students protesting peacefully, if vocally, against what they saw as the racist actions of a local merchants – a Lorain County jury would come to a different conclusion as to the merchant’s intentions – are labeled a “PC mob.” One writer even equated the events at Oberlin with the “China syndrome,” the point reached during a nuclear accident “where chain reactions become impossible to stop or control.” (One might want to compare the above two photos at this point.)

Once again, just as the events which ultimately led to the jury’s immense award to Gibson’s were stand-ins for larger national angers, it seems clear that the resentments erupting in the aftermath of the verdict indicate that more is at stake than the harm done to a local merchant, as serious as that might be.

This should not be surprising, since it was an intended outcome of the trial. In his closing arguments to the Gibson’s jurors, the plaintiff’s lead attorney explicitly asked them to deliver a political message with their verdict. Indeed, lawyer Lee Plakas urged jurors to see themselves as combatants in a monumental battle, seemingly channeling Henry V’s rousing call to arms before the Battle of Agincourt. “You forevermore in this case,” he exhorted them, “will know that you executed, I hope, the power that helps our entire country, students everywhere. Forevermore,” he continued with Shakespearean gusto, “depending upon your verdict, you will be known as the Gibson Bakery jury or a Gibson Bakery juror. … To have that badge, to have that mantle — that is fate.”

The Bard aside, the national significance of the case was not lost on conservative commentators. As David French, a senior writer at the National Review put it, “the Oberlin trial is a blueprint for fighting back.” And so we must ask: Against whom or what are they “fighting back”? What lessons are to be learned that will help “students everywhere”?

Mr. Plakas pointed to the answer by arguing that higher education institutions must do a better job providing “discipline and guidance” to their students, adding that colleges like Oberlin are “not doing students any favors by letting them act like nursery-school students and threaten tantrums or throwing tantrums.” (I’ll resist the temptation to take the lawyer’s bait, only observing that in equating social justice protests to a toddler’s temper tantrums, the conservatives’ true target is clearly revealed.) But his remarks, as well as those of dozens of editorial writers, signal that regardless of the specific facts pertaining to this case alone, the future for students’ free speech rights is not bright; beyond the specific issues involved in the Gibson’s lawsuit, the verdict in the case will be used to target not only activist students, but also colleges that take seriously issues of equity, inclusion, social justice, and democratic engagement.


Many constitutional scholars have raised concerns as to what the verdict might portend for students’ free speech rights, warning that college administrators will be under tremendous pressure to “discipline” student activists lest they face the threat of massive lawsuits. In a widely quoted statement, Floyd Abrams, a First Amendment expert, saw in the jury’s verdict “a double-barreled threat to free speech on campus…The notion that uninhibited student speech can lead to vast financial liability for the universities at which it occurs threatens both the viability of educational institutions and ultimately the free speech of their students.” Avery Friedman, a constitutional law scholar at the Cleveland-Marshall College of Law, cautioned that, “Whatever misbehavior may have been involved with individuals, if the amount of a verdict is so staggering that it will chill speech and chill expression, then the First Amendment is diminished.”

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Image: Pittsburgh Post-Gazette (July 29, 2007)

Lynn Pasquerella, president of the Association of American Colleges and Universities (AAC&U), also found the judgment troubling. “Oberlin,” she argued, “was doing the very thing that the president [Trump] is now mandating — they were protecting the First Amendment rights of their students.” It is very unusual, she added, “for colleges and universities to be held responsible for the speech and actions of individual students, faculty and staff.” Even writers who felt that Oberlin College officials were culpable in the Gibson’s protest were concerned about the enticements embedded in plaintiffs’ huge payday. Conor Friedsdorf, a staff writer at the Atlantic who “celebrated” the Gibsons’ “happy ending,” worried that, “It would be a shame if jurors intent on vindicating the wrongly maligned wound up severely chilling protected speech too. This lawsuit,” he predicted, “may even inspire future litigation against colleges that chills protected speech, as plaintiffs seeking a similar payday attempt to target administrators for what students do on their own.”

One can already feel an approaching ice age. Rich Lowry, the National Review’s editor, called the verdict a “shot across the bow of well-heeled institutions tempted to join social-justice mobs.” Richard Epstein, a lawyer writing in the Hoover Institution’s “Defining Ideas” journal, warned that “the simple truth is that all forms of freedom, including speech, must be subject to needed constraints: no use or threat of force, and no use of lies to advance a political cause.” (One wonders if Mr. Epstein has wandered over to the Washington Post’s “Fact Checker” site lately. If so, he would have discovered the following headline from mid-June: “President Trump has made 10,796 false or misleading claims over 869 days.” No use of lies to advance a political cause?)


But there are even larger implications to the Gibson’s decision. As higher education has fallen victim to the national partisan divide, conservatives portray students who speak out on social concerns as “college mobs;” administrators who don’t crack down on them are chastised for “ceding control to a small group of activist students,” or for not “put[ting] an end to the out-of-control politically correct culture” at “these insulated left-wing incubators.”

Kevin Carey, director of the education-policy program at New America, is just one higher education analyst who has expressed a growing concern that outlets like Fox News and others “have turned difficult campus free-speech debates into a nightly drumbeat of manufactured outrage against colleges and universities…The anger builds, and soon the academy becomes the enemy and the other.”

The seemingly incommensurate temperature and volume of the anger reminded me of Joe Queenan’s 1992 humorous take-down of Dan Quayle (Imperial Caddy). “The way our society works is this,” he wrote. “The left gets Harvard, Oberlin, Twyla Tharp’s dance company and Madison, Wisconsin. The right gets Nasdaq, Boeing, General Motors, Apple, McDonnell Douglas, Washington, D.C., Citicorp, Texas, Coca-Cola, General Electric, Japan and outer space.” Were Queenan to update his book, perhaps now targeting Mike Pence, he could add to the conservative’s haul: the Supreme Court, the Senate, a chance to determine the makeup of every federal court for a generation, a free pass to gerrymander elections for political gain, Fox News, and the undermining of our very notion of truth. As for the left? We struggle to hold on to the little that remains, including colleges and universities that are not ashamed to see a concern for social justice and the betterment of the world as important subjects and outcomes of a demanding, intensive liberal arts education.

If you have doubts that colleges like Oberlin are being targeted by the right, read Richard Epstein’s previously cited commentary  to its final sentence: “Oberlin College may well go bankrupt,” he concluded, “perhaps it should.” Just to be clear: Epstein is not your crazy uncle ranting on the Internet. He is an Oxford and Yale trained, libertarian constitutional lawyer at the Stanford University’s Hoover Institution.

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Bird’s Eye View of the Town Oberlin, Lorain Co., Ohio, by Albert Ruger, 1868. Courtesy Oberlin College Archives

Oberlin is a strong institution, although we, like all but the wealthiest institutions of higher education, remain financially vulnerable. So, let’s just imagine that Mr. Epstein gets his wish and walk with me through the now college-less town of Oberlin, Ohio. The Gibson’s lawsuit, of course, was built on the premise that actions by the College and its employees triggered a loss of revenue (and reputation) for the bakery and store. Remove the college and the town’s merchants will see a drastic decline in the demand for the donuts and hardware and groceries and apartments and all the other goods and services they provide. How long would Gibson’s or other merchants remain viable? Remove the college from the town and you eliminate the free music lessons offered to young children in the area. Remove the college, and local high school students could no longer take free, credit-bearing courses in its classrooms. Remove the college and there would be vastly fewer concerts and lectures open to all. The local hospital would likely have to be shuttered, as would the town’s only movie theater (both of which were saved by the college). There would be no media literacy program, poetry classes, or Girls and Boys in Motion provided by college faculty and students to the public schools. No Northern Ohio Youth Orchestra. And how long before the century-old, world-class Allen Memorial Art Museum would have to close its doors? And, oh yes – gone would be the college that for nearly 200 years has produced Nobel Prize winners and MacArthur genius fellows, scientists of renown and musicians of exquisite talent, film directors and award-winning writers, teachers who bring their skills to K-12 programs across the country, professors who instruct at colleges and universities across the world, business executives, arts administrators, faith leaders, and tens of thousands of well-educated graduates who have worked, and continue working, to make the world a better place.

What Mr. Epstein and the conservative commentators who would just as soon see Oberlin vanish have forgotten is that the town depends on the college, and the college is made better by the town. This is a lesson we who live in Oberlin cannot forget even if those who don’t live here may choose to ignore it.


So, how do we, in Oberlin, respond to the challenges before us? I will leave it to the college’s attorneys, administrators and board of trustees to determine what, in their wisdom, is the best path forward on the legal front. But the rest of us, and particularly those who live in town and work at the college, need to roll up our sleeves, because there’s much work to be done. Many will have suggestions that we need to listen to. Here are my four ways to move forward:

  1. Start by using all the institutions, individuals, and opportunities available to help town and college engage in the conversations needed to begin the healing process.
  2. When the students return to class in the fall, help them understand the vital importance that free speech holds for them, and the dangers of chipping away at it by blocking the legitimate speech of those with whom they disagree. Students should not assume that the First Amendment will always be there to protect their speech, even less so if they act to undermine it. I have written previously (see here and here) on the challenges students face while attempting concurrently to protect free speech rights and shield vulnerable communities from provocateurs whose only purpose is to belittle them. This balancing act is not easily managed, nor will these challenges become any easier in the future. But strongly defending free speech at a time when others will challenge the students’ right to advance social justice issues will become even more important in the coming months and years.
  3. Faculty, above all, need to make students more aware of the ways that displays of privilege can damage their interactions with town residents. For students, this includes simple acts such as not assuming that they own the roads and sidewalks. But, most of all, it means not stealing from town merchants and calling out those who do. If their sense of morality doesn’t stop them, then their political conscience should. Shoplifting from local merchants is an obnoxious and offensive display of class privilege, and students need to be aware of how such acts impact others, as well as the college that has stood by them.
  4. This is the moment to embrace and enhance both our academic and artistic heritage of excellence and the fundamental importance of our social mission. We are, and have long been, a college and a conservatory that values a rigorous education, the importance of critical analysis, the ability to evaluate clearly and reflect deeply, and the importance of moving from theory to practice, from discerning to creating. Oberlin has long been motivated by it dual interests in locating its students in a demanding intellectual and creative community where they can learn and thrive, and with a desire to create democratic advocates and participants in broader communities who will use their talents to heal the world and address its injustices. Both approaches have made Oberlin an institution that so many are proud to be a part of. The best way to move forward is to recommit to both as we work with passion and intelligence to improve each.

14 thoughts on “After the Gibson’s Verdict: What Is at Stake

  1. I’ve been eagerly awaiting this post, and it did not disappoint. The sad irony is that the average conservative ‘townie’ like the kind you meet in the comments on Oberlin posts is being used as a pawn. Powerful interest groups like the Hoover Institution won’t be there when the town’s hospital is closing. They’ll be the ones closing it down. The Hoover Institution, the WSJ, and Dr. Jacobson’s legal blog – all hoping that their readers will keep cheering the destruction of “social justice warriors” until there’s nothing left but soulless corporatism. And then it’ll be too late.
    There won’t be any winners in these cultural proxy wars, but there will be a whole lot of losers. I hope that neither Oberlin College nor Oberlin town end up as one when this all shakes out.

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  2. Mr. Volk, your case is compelling, but are you not omitting what I gather is the fact that two Oberlin administrators were complicit in the actions against the Gibsons and crossed the line(s)? My understanding from the reading that I have done is that their actions had a great deal to do with the student ones and with the large judgments. Am I wrong?

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    • That’s what the jury found, but I will say from personal experience of over 30 years that the idea that Oberlin students would do something because an administrator tells them to do it is nothing short of ludicrous. What a jury finds and what may be the truth of the issue are different things. But it n any case, my argument has always been that more is going on than the actual facts before the jury, otherwise it’s impossible to understand the huge judgment.

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      • I’m certainly not the least bit conservative; however, my take is this. When the college decided to quit ordering baked goods from Gibsons, it essentially gave its tacit approval to the boycott. This boycott was based on the false and hurtful premise that the Gibsons were racists. The idea of free speech should never be meant to support spurious and untrue charges against any individual or business.

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      • Richard, I totally agree with you and would add that even if the Gibson’s had (at least mildly) racist views, the protest seems unwise because of the facts related to the shoplifting. And the College failed to stay neutral.

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  3. I was not there and can’t comment on the role of College personnel at the demonstration but the College appears to have made a huge error terminating it’s contract with Gibson’s. If I were a juror, I would totally read that as the College taking sides. The amount of the award is at least ten times what seems deserved, but still, what were they thinking? The other thing I haven’t read about is what reliable information was there that Gibson’s employees had a pattern of treating Black patrons unfairly? But even if true, choosing to protest the facts of this incident—chasing a shoplifter—this is a bad fact pattern to protest in the opinion of almost everyone. I absolutely don’t understand the students involved. Yes they have First Amendment rights but some wisdom is needed too. Steve Volk is surely correct about the true motivation of the College’s enemies but we don’t have to make it so easy for them.

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    • Hindsight is 20/20, but I will only add what I know. The college cut off its order from Gibson’s (donuts and bagels) because the students said they simply wouldn’t eat them, and would, in fact, trash them. That’s a mark against the students, perhaps, but not necessarily the College. The other thing to keep in mind is that the majority of the time the order was suspended — something like 6 weeks — students were on Winter break, and not even on campus, so there wouldn’t have been any order in any kind. The jury took the suspension of the bakery order as evidence of complicity; not every jury in every town would have seen it that way. This one did.

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      • Your posts here are disingenuous in the extreme. You and Oberlin seem to think they are above the law. Nice try. Tell your alma mater to pay up before the interest starts accruing.

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  4. An extremely important and articulate response to the multiple ways the case has been politicized in wider society. Without more information, I cannot exonerate the actions of administrators or college counsel, but Professor Volk makes the compelling case for defending campus free speech and defending higher education against the well-funded right-wing and corporatist assault.

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    • There is certainly free speech, but there is no immunity from the civil penalties that attach to defamation. You can whine as much as you want about “defending higher education against the well-funded right wing and corporatist assault,” but this was a textbook libel case. Maybe Oberlin needs to brush up on that law, which has not changed in any fundamental way for more than 50 years.

      You seem to think that “progressives” somehow deserve a free pass. Well, a jury just told you otherwise. If Oberlin is stupid and arrogant enough to keep pursuing this, let’s hope for their sake that they don’t repeat the libel and set themselves up for another spanking.

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  5. It doesn’t matter what conservatives or liberals think. What matters is that a jury found Oberlin guilty of defamation and tortious interference with the Gibson family business. You have cherry-picked the trial record, and are attempting to whitewash the college’s role. Neither you nor Oberlin has learned a single thing.

    Oberlin and its culture of theft have been exposed, and their defamation has been punished in the manner prescribed by law: a hit to the wallet. The college will pay the judgment — sooner rather than later unless they are determined to continue their incomprehensible idiocy — and suffer the loss of several millions dollars a year in endowment income.

    But that won’t be the end of it. Small liberal arts colleges have aggressively overpriced themselves, and Oberlin was already feeling the pinch before that mini-riot. It will now get worse, as parents wonder whether they should dig deep to fund an “education” like the one that Oberlin has been supplying.

    You can whine to your worried heart’s content about all of this, and do the usual “progressive” chant about the “chill,” but the die is cast. How bad this will ultimately get is going to be partly a function of just when Oberlin and its “friends” decide that it just might be time to quit digging that hole even deeper. Couldn’t happen to a more deserving bunch.

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  6. By the way, if the Gibsons were such “racists,” why did Oberlin do business with them for so long? Maybe they were just fine with the “racism” all along, then?

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