Ruling Questions UC Davis’ Commitment to Civil Rights Protections and Use of Anti-SLAPP Legislation to Thwart Civil Rights Remedies –
One of the cases that we focused on was the case of Professor Branner, a 74-year-old African-American professor who in August of 2008 filed a lawsuit against the UC Regents and Vice Provost Horwitz, alleging that their actions violated his rights and protections under California law.
We have now learned that UC-Davis Professor George Richard (Rick) Branner, an African-American who began his tenure with the university in 1972, has been ordered to pay $30,000 in attorney fees for filing his suit.
Professor Branner was a professor of Electrical and Computer Engineering, and contends he has been routinely harassed, discriminated against and repeatedly passed over for promotion, despite his outstanding record of academic achievement.
“I thought the stories my Grandfather told me about standing on our front porch, shotgun in hand, as the Ku Klux Klan marched in front of our house were the scariest experiences I could imagine,” Professor Branner stated. Now he says his employment and recent experiences at the hand of UC Davis have become racial nightmares of their own.
Professor Branner, at 74-years–old, is currently the oldest tenured Professor in the department and holds the most seniority. Yet, despite an outstanding teaching record and a large number of well-received publications, Branner’s advancement in the department was slow, and at one point came to standstill.
In fact, Professor Branner once languished seventeen years between promotions. Meanwhile, his counterparts, less distinguished and experienced professors, and almost all white, were promoted ahead of him.
“I believe a lot of what is done to me is because of my race,” Professor Branner contends. “They have dealt with me in ways that they would not have with another professor.”
In early 2008, Professor Branner filed suit against the Regents of the University of California for race discrimination, harassment and retaliation.
Now he says he is fighting for his financial and professional life against UC Davis’s unlimited power, money and ability to unleash wholesale retribution against those who challenge it.
According to a release from his attorney at the Law Office of Mary-Alice Coleman in Davis, “On the recent 43rd anniversary of the murder of Martin Luther King, Jr., New UC Davis Chancellor Linda P.B. Katehi came out with an op-ed piece outlining the great efforts the university has taken to promote diversity and tolerance in light of the racially motivated incidents which occurred last year on the Davis campus.”
But “other actions by UC Davis raise questions about the university’s true commitment to racial equality.”
While Professor Branner and his attorneys allege racial discrimination, UC Davis sees a suit that was frivolous and the use of SLAPP was a mere tool to throw out the lawsuit.
Claudia Morain, Senior Public Information Representative from the UC Davis News Service, told the Vanguard last year, “By definition, a SLAPP lawsuit is one that is meritless. A plaintiff is provided the opportunity to show the court that their lawsuit is one with “minimal merit.” Only if a lawsuit is found to have no merit is it dismissed under the Anti-SLAPP statute.”
She argued that this is precisely what happened in this case. She told the Vanguard, “The court found that the claims by the plaintiffs were meritless, i.e. they fell within the definition of SLAPP. It is the responsibility of the plaintiffs’ attorneys to ensure that the lawsuit had minimal merit, and to advise their clients accordingly. Had that occurred in the lawsuits you reference, these situations would not have resulted.”
On the other hand, attorneys for Professor Branner argue, “The university countered Professor Branner’s lawsuit not with an olive branch but rather, with questionable legal maneuvers.”
According to Professor Branner’s attorney, the university’s most recent act of retribution against the professor is a March 18, 2011 legal notice in which UC Davis demanded the immediate payment of $30,000 from the professor.
According to the university, Professor Branner owes the money because he violated the university’s First Amendment rights when he filed the civil rights suit for race discrimination, harassment and retaliation after years of egregious mistreatment at their hands because of his race. In response to Professor Branner’s lawsuit, UC-Davis filed an “anti-SLAPP” motion in which it argues that it was, in fact, the university’s first amendment rights, not those of Professor Branner, which had been violated.
Thus far, Yolo County Superior Court has agreed with the university’s legal end-run and ordered Professor Branner to pay the UC Davis attorney’s fees, totaling nearly $30,000.
“What they have done,” states Professor Branner’s attorney Tom Gill, “is to use a statute enacted in order to protect individuals, to disallow a respected, African-American University of California Professor from bringing a race discrimination and harassment lawsuit. And now UC Davis is adding insult to injury and truly showing its true intolerance by trying to compel Professor Professor Branner to pay the University’s attorney fees.”
According to the law, Californians are supposed to be free to assert their civil rights without fear of retribution or financial ruin.
Professor Branner says that the fact that he might now have to pay the very institution that discriminated against him is a “very bitter pill to swallow.” If forced to comply with the UC Davis demand to pay the $30,000 in full, the professor admits it might be difficult to proceed with his civil rights lawsuit, now moving toward trial.
What began as a request, by a long-tenured and accomplished professor, for a simple apology for the egregious way he has been treated at UC Davis now may result in his near financial ruin. After devoting his life and career to a university whose chancellor preaches diversity and tolerance, Professor Branner has found himself in an unconscionable situation because that same university has shown him anything but.
Last year the Vanguard had an extensive discussion on the misuse of SLAPP legislation.
Attorney Mary-Alice Coleman argued UC Davis is misusing the anti-SLAPP statute to thwart employees who claim civil rights violations.
According to Ms. Coleman, “The purpose of the anti-SLAPP law is to protect an individual’s constitutional activities of free speech and to petition the government. The law is designed to prevent citizens from suffering the wrath of litigation abuse and bullying by big corporations and big government in connection with ‘public’ issues.”
In contrast to the university’s view, Ms. Coleman argues, “This law has nothing to do with protecting persons who are performing their public duties.”
The original intent of anti-SLAPP legislation was to end a practice conducted at that time mainly by business enterprises, property developers and similar entities, private entities with a big stake in government action who would attempt to prevent citizens from speaking out against their businesses and projects at local city council and planning commission meetings.
According to Terry Francke, Excutive Director of Calaware, an organization that works to protect the right to free speech and open government, “Companies that had this practice took the view that this was just an intolerable interference with their business plan and so they would send these letters to people who stood up and spoke their mind and say that you are defaming us.”
“These letters,” he explained were strategic, “that’s where the word comes from, a strategic means of chilling speech, of shutting people. A very powerful and direct interference of first amendment rights.”
However, these lawsuits were also frivolous, they would not eventually stand up in court because people have the right to speak up at public meetings.
However, for the people involved, the actions were ruinous. “It would be ruinously expensive for them to put on a lawyer defense so that when they ‘win’ by getting the case dismissed, they have to sell their house.” He continued, “So it’s that practice, the combination of ruinously expensive litigation threats that became labeled as strategic lawsuits against public participation.”
Bill Lockyer, when he was in the legislature would end up carrying a bill that would provide an early shield against what seemed to be a SLAPP lawsuit.
Explained Mr. Francke, “The essence is as soon as you file an action, against someone based on what they have said, either about an issue in court or another issue of genuine public interest in a public forum about anything, as soon as you do that, then the defendant who is being sued can file a motion and get the court to force the plaintiff to put on the strong points of the case to show what they have and to do that without further delay, in most cases without discovery.”
He added, “This SLAPP suit procedure has all but wiped out the defamation lawsuit.”
Terry Francke told the Vanguard last year that UC Davis “misses the point which is not that public agency should not have the ability to file anti-SLAPP motions or to use them to dispose of cases that are really not going to go anywhere or will be costly.”
Such use of the law would have a chilling effect on the ability of individuals to bring forward actions that challenge government actors conduct. “I think that if the only people who are entitled safely to bring an action challenging civil rights are the government’s actors themselves, then that needs a lot less defense of civil rights than we’ve become accustomed to,” said Mr. Francke.
“You have to have private enforcement actions like civil rights violations, whistle blower violations, taxpayer challenges to government spending, and other areas where the government may intervene or take an enforcement role but by and large it’s left up to the injured parties or the taxpayers themselves to protect civic and civil rights in court,” he continued.
—David M. Greenwald reporting