After Campus Protests Against a Local Bakery, Here’s Why a Jury Said Oberlin Must Pay $44 Million

Oberlin College wanted to support a black student who said he had been racially profiled by a local bakery. But the college’s handling of the aftermath of the incident led a jury this month to slap it with a $44-million defamation judgment.

While some experts have raised concerns that the verdict holds a college responsible for the actions of its students, The Chronicle spoke with free-speech experts, not connected to the case, who say Oberlin made a series of missteps that exposed it to the eye-popping judgment.

Officials of the liberal-arts institution in Ohio declined an interview request but released a statement on Friday from its president, Carmen Twillie Ambar. “Let me be absolutely clear: This is not the final outcome,” she said. “This is, in fact, just one step along the way of what may turn out to be a lengthy and complex legal process.”

Ambar added: “I am confident that when we resolve this matter, it will look substantially different than it looks today.”

The free-speech experts said administrators and faculty members at Oberlin, where just 5 percent of students are African-American, may have had the best of intentions in providing support when one of them felt mistreated.

But the case offers a cautionary tale for other colleges at a time when racial sensitivities on campuses are heightened, and student protests are ubiquitous. A line exists between supporting students and being complicit in defamation. According to the experts The Chronicle spoke with, as well as the jury, Oberlin crossed it.

Peter F. Lake, a professor of law at Stetson University, called the litigation “the McDonald’s-coffee-cup case of higher education” because of its startling verdict. “This is a wake-up call,” he said.

When Jonathan Aladin, then 19 years old, walked into Gibson’s Bakery the day after Donald J. Trump won the presidency, the Oberlin campus — recently in the news for its students’ liberal activism — was already a free-speech powder keg. It was torn over how the administration had handled the dismissal of Joy D. Karega, a professor who had posted inflammatory messages on her personal social-media pages, including suggestions that Israel was responsible for the September 11 terrorist attacks.

After an employee of the family-owned bakery, Allyn D. Gibson, accused Aladin of trying to shoplift wine, the student fled the store. Gibson gave chase and restrained him. Aladin later accused the bakery of racial profiling. Other students and many members of the campus community rallied around him.

Following Aladin’s subsequent arrest, according to a civil complaint filed in November 2017 by the bakery, Oberlin representatives, including a dean, distributed fliers outside the bakery during a protest. Gibson’s “is a RACIST establishment,” the fliers said, “with a LONG ACCOUNT of RACIAL PROFILING and DISCRIMINATION.”

Oberlin’s department of Africana studies, according to the complaint, posted a message on its Facebook page that the bakery’s “food is rotten and they profile Black students.”

After a retired professor of dance and theater wrote a letter to the editor of The Oberlin Review, a student newspaper, in which he described the administration’s decision to stop doing business with Gibson’s as “a fundamental denial of due process,” a university spokesman sent a text message that disparaged the professor, according to The Chronicle Telegram, a local newspaper.

“[Expletive] him,” Meredith Raimondo, dean of students, responded. “I’d say unleash the students if I wasn’t convinced this needs to be put behind us.”

Aladin pleaded guilty to a charge of attempted theft and aggravated trespass. At his sentencing hearing, he acknowledged using a fake ID to try to purchase alcohol, and said the bakery’s actions had not been racially motivated.

A police review days after Aladin’s arrest found that 40 adults had been arrested for shoplifting at Gibson’s over the previous five years, six of them black, the Cleveland Plain Dealer reported. The city of Oberlin is about 15 percent African-American.

Protected Speech?

Gibson’s acknowledged cracking down on shoplifting, but it denied racial profiling. The bakery argued that statements made by college faculty and staff members as well as actions by the college in support of the student protests added up to defamation and slander, and resulted in damage to its brand and business.

A jury agreed. Last week it awarded the Gibson family and the bakery $11 million in compensatory damages. On Thursday it awarded an additional $33 million in punitive damages, but that amount could be lowered to $22 million because of an Ohio limit on punitive damages to twice as much as compensatory damages.

“We appreciate that the jury understood what we had gone through, and I think they were saying to the entire country that we can’t allow this to happen to hardworking, small-business people whose lives are defined by their business, their family, and their community,” the lead plaintiff, David Gibson, told the conservative website Legal Insurrection. “What the college was doing was trying to take away all those things from us, and we fought hard against that.”

Oberlin argued that the statements made were protected speech, because as expressions of opinion, they could not be defamatory. “Most importantly,” the college argued in a legal brief, “this lawsuit violates well-established public policy that is at the core of our constitutional democracy — the right to protest.”

Rodney A. Smolla, dean of Widener University’s law school and a First Amendment scholar, said that the line defining protected speech is thin and murky, but that Oberlin had been exposed to liability by some of its employees’ statements.

“Name calling is not defamation. To call someone a racist or a fascist is not defamation. That’s considered hyperbole or opinion,” Smolla said. “However, to accuse someone of committing a particular specific racist act is a factual statement. It’s the difference between saying someone is a sexist and saying he committed sexual assault.”

College administrators and employees have to be careful about “jumping to conclusions,” even in internal communications among fellow professors and administrators, he added. “If you internally say to a colleague, ‘Oh, I think it’s racial profiling’ before you know the facts, that could come back to haunt you.”

Oberlin College can’t be held responsible for the actions of its students, but faculty and staff members in this case were considered “agents of the institution,” said Saunie K. Schuster, an Ohio-based partner at TNG: The Ncherm Group, a risk-management consulting company.

“One professor said we’re going to get them where it hurts — the smear on their brand is what hurts, and that’s been taken care of,” Schuster said. “So now we’ve got a faculty member who would be considered an agent of the college, using college computing equipment, basically saying they’re running a smear campaign. That smear campaign is not going to be a problem if it’s true. But if it’s untrue or unfounded, now we have a defamation suit.”

Schuster said colleges need to better educate faculty members about what language crosses a legal line, regardless of academic freedom.

The argument that high-level administrators are “agents of the institution” is straightforward, but it gets more complicated when classifying faculty members as such. Typically an entity can be liable for the actions of its employees, but exploring what that means in higher education, Smolla said, is “uncharted territory.”

“In the unique context of academic life, faculty members are not ordinary employees,” he said. “They have a kind of academic freedom and free agency that at least within the world of universities we respect. But the fact that we may have those traditions internally doesn’t necessarily mean the legal system will honor those distinctions.”

Lake, the Stetson law professor, said the implications of the case could be “staggering” if the verdict is upheld.

“Colleges are caught in an impossible situation unless something is resolved,” he said. “On the one hand, they’re being ordered by the president of the United States to create a marketplace of ideas on campus and protect speech broadly. But then doing so could get you sued for defamation.”

Lake said a clear understanding of the legacy of this case won’t emerge until an appellate court’s review. It’s unclear what the college’s next step would be. What’s already clear, he said, is that colleges are entering a new era of media-related lawsuits and must determine how to meet the challenges.

“Because we weren’t really ever cast in the role of being The New York Times or NBC, you could kind of get away with not knowing media law well,” Lake said. “But this is a game-changer. Academic freedom is not blanket freedom from libel. Just because you work at a college doesn’t mean you have special privileges that other media defendants don’t.”

Vimal Patel covers graduate education. Follow him on Twitter @vimalpatel232, or write to him at vimal.patel@chronicle.com.