A major law firm, Pepper Hamilton, conducted an investigation into claims of rape and sexual assault by female students at Baylor University. In 2016, the law firm found fundamental flaws in how Baylor University handled these claims. Coaches were fired over the scandal that emerged. Now, some of those women have sued the university. In that lawsuit, the 15 plaintiffs argue that Pepper Hamilton created a report regarding their findings. Pepper Hamilton denies it created any such report. The plaintiffs want a copy of that report.

The judge hearing the case, Robert Pitman, noted that emails and time entries for the law firm indicates that it did create a final report. He set for hearing the matter regarding why the law firm should not be sanctioned. Emails, noted the judge, between law firm lawyers mention “drafts of the overall findings and recommendations” and the “narrative of findings and recommendations.” Certainly, if the lawyers discussed a final report, then there must be a final report somewhere.

The subpoena for for the report has been outstanding since 2017. The Pepper firm failed to respond to the 2018 motion to compel and violated a deadline of March 15 to submit objections. Judge Pitman had ordered the law firm to produce the materials by April 11. Instead, the firm submitted a motion for reconsideration. See ABA Bar Journal report here.

That hearing was then held on June 21. Judge Pitman sanctioned the Pepper Hamilton law firm at that hearing. The law firm, even though not a party to the lawsuit, will have to pay the attorney expenses for the plaintiffs’ lawyers. At the hearing, a Pepper Hamilton senior counsel said the references to a final report concerned attorney work product. The judge said if the plaintiffs wished to pursue the mater, they can file additional motions. See ABA Bar Journal report here.

I would like to know what sort of attorney work product need not be turned over to the 15 plaintiffs. I expect they have the same question.

The Equal Employment Opportunity Commission has the mission of investigating employment discrimination. They also educate employers and others about the nation’s discrimination laws. They issue guidance to employers (and employees) on what discrimination looks like. The EEOC actually issues some very good, well-supported legal guidance. See this site for excellent articles on every aspect of discrimination. Those articles are for lawyers. For the layperson, see this site for general guidance.

Regarding discrimination toward immigrants, there is this website. This site provides various examples of what discrimination against immigrants looks like. One of those examples addresses discrimination against person based on his/her national origin:

Examples of potentially unlawful conduct include insults, taunting, or ethnic epithets, such as making fun of a person’s foreign accent or comments like, “Go back to where you came from, ” whether made by supervisors or by co-workers.

Yes, that is the phrase Pres. Trump used in regard to four female members of Congress. He said they should go back to the countries from where they came if they do not like this country. It apparently did not matter to him that all four women are United States citizens. Yes, if we could couple the President’s remark to some Hispanic person he had recently fired, we would have a grade A discrimination lawsuit.

The Americans with Disabilities Act requires all businesses and governments to make their facilities accessible to persons with disabilities. That includes deaf persons. What do hearing impaired persons need to access your facility? Well, they might need an American Sign Language interpreter. If a hearing impaired person requests an ASL interpreter, every business and every government agency is required to provide one. Some 30 years have passed since the ADA was enacted in 1990. Yet, so many folks are not aware of this requirement.

But, now the San Antonio Independent School Distrist understands that requirement. They just settled a case for $150,00, in which they did not provide ASL interpreters on multiple occasions. Cleto Rodriguez is deaf. He requested an ASL interpreter several times for meetings with his son’s teachers. The district never did provide an interpreter. See San Antonio Express News report.

Some folks will tell me, “well, can’t we just write notes back and forth?” The ADA specifies that the hearing impaired person can choose how to communicate, not the service provider. Some deaf persons, especially for key meetings like Parent-Teacher conferences, prefer an actual ASL interpreter. The challenge is that ASL interpreters cost money. They also need to be reserved in advance.

Another challenge is that some hearing impaired persons make a request for an interpreter and then do not show up for his/her appointment. That happened to me once. I paid for an interpreter for a hearing impaired person who did not appear. I learned that you may need to verify with the hearing impaired person will actually show up for the appointment.

The U.S. Commerce department advanced a reason for the citizenship question in the 2020 census. Department head, Wilbur Ross tried to claim the question was included to help enforce the Voting RightsAct. But, the lower court, in an opinion which was affirmed on appeal by the U.S. Supreme Court, found the reason to be “contrived.” That is, the lower court found the reason to be fabricated. See the decision in Commerce Department v. New York, No. 18-996 (6/27/2019) here. The district court judge was not happy to see the President’s tweet indicating the Administration would seek further reasons justifying the citizenship question.

This really should be obvious, but apparently it is not. Whatever reason the Administration comes up with now will also look contrived. It should be obvious that whatever the real reason was, it should have been advanced when this lawsuit started 18 months ago. We have to consider at this point that the Administration is remarkably incompetent. It is one thing to fabriacate reasons when a lawsuit is joined. But, to state publicly that your first reason failed, so you will now dig even deeper to find the “real” reason why you did something.  Engaging in such an exercise acknolwedges that you are again contriving.

The DOJ lawyers at that Friday meeting told Judge Hazel they were seeking alternative ways to include the citizenship question in the 2020 census. That means the lawsuit will proceed. See CNN news report.

Discrimination cases are similar. Employers will advance a reason for the termination – other than discrimination. If that reason fails, the employer is essentially done. Any additional, “new” reason will of course be suspect. There is a principle of law that an employer ought to know why it fired someone. If it changes reasons, that change in itself suggests prevarication.Just as a Commerce department ought to know why it included a citizenship question.

Yet, this administration persists in looking for a new reason. As if no one notices that they ought to know why they did something just two years ago in 2017…………

Once again, I nominate Pres. Trump for the award as the worst client in America. His administration has pursued a weak, almost frivolous appeal regarding the citizenship question on the 2020 census. Finally, just last week, the U.S. Supreme Court said the reason advanced by the Administration for the citizenship question was “contrived.” That is a big deal, since the entire challenge to the citizenship question turns on whether the administration followed required procedures in adding the citizenship question. The entire lawsuit turns on how the Commerce department arrived at that citizenship question. So, when the U.S. Supreme Court finds the question to have been “contrived,” then your credibility, as a party to the lawsuit, is shot. You as a party litigant party have been found to have lied.

Earlier this week the parties to the lawsuit had a conference with the judge. The Department of Justice told the judge that DOJ was done with what was a weak lawsuit. Doubtless all the attorneys and the judge knew it was a weak lawsuit. But, being professionals, they probably said nothing about the quality of the Administration’s defense.

Then, at this meeting on Tuesday, July 2, the parties were likely wrapping things up. DOJ said it was done. The Judge accepted the DOJ assurance at face value, thinking the lawyer was speaking for his client.

So, we can imagine the judge’s surprise the next day when Pres. Trump tweets that DOJ is not done. He will direct DOJ to find a way to get the citizenship question on the 2020 census.

What had happened was that conservative radio host Hugh Hewitt had tweeted that if DOJ was folding its tent on the issue, then that was the worst defeat the Trump Administration had sustained. Soon after Hewitt’s tweet, Pres. Trump tweeted his assurance that DOJ was not done.

Well, Judge George Hazel, the Maryland judge who was overseeing the lawsuit, tweets. He follows the President’s twitter account. He saw the tweet just one day after being assured DOJ was done with its opposition. He immediately called the DOJ lawyer, Joshua Gardner, away on vacation, and insisted he participate in a telephone hearing that day regarding what the Administration is doing. See CNN news report.

The judge held a telephone hearing on July 3 regarding the President’s tweet. The plaintiffs want the parties and the judge to enter an order which states specifically the government will not include a citizenship question on the 2020 census. The judge did not accuse the DOJ lawyers of mis-leading him, but that was the under-current. See transcript here of the telephone hearing.

As Mr. Gardner, the DOJ attorney, explained, this is a very “fluid” situation – meaning he does not know what the President is saying or why he is saying it. Judge Hazel ordered a hearing on July 5, at which time the government must either agree to an order saying it would not include a citizenship question, or re-start the lawsuit to see to what extent the plaintiffs have been harmed by the government’s actions. This being the July 4 weekend, the DOJ lawyers asked if they could hold the hearing on Monday. The judge responded, “no.” The time was slipping away, already, he noted.

In an ordinary lawsuit, the judge would insist the client attend the next hearing, so the judge can be sure the lawyer is speaking for his client. In this case, the two DOJ lawyers were able to assure the judge they were as surmised as Judge Hazel was by Pres. Trump’s tweet. Otherwise, in an ordinary case, most judges would insist the client attend the next hearing.

And, as the hearing closed on July 3, one of the plaintiff lawyers pointed out to the judge that the Administration had been saying for months that June 30, 2019 was a hard and fast deadline. Given the President’s tweet, that appears to not be true. Of course, the judge could not disagree. He could only acknowledge the obvious.

So, yes, a President who cannot harness his team to pull in the same direction and cannot restrain his tweets long enough for his lawyer to enjoy a day off is a poor client indeed.

It is extremely rare for the U.S. Supreme Court to overturn one of its prior decisions. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), comes to mind. But, that decision overruled the “separate but equal” ruling in Plessy v. Ferguson, 163 U.S. 537 (1896) decision. See that decision in Brown v. Board of Education here.  That doctrine had long been shown to have been wrong and unworkable. So, on some level, the decision in Brown v. Board of Education was not surprising. Sooner or later, that decision would have been issued. The Supreme Court does not have to overrule a prior decision to change the law. The court can re-interpret the old decision to mean something else. When a court specifically overrules a prior decision, it is saying  the decision was flat wrong on the law. A court is going the extra mile to specifically overrule a prior decision.

Precedent has value, because businesss, people and the economy rely on a predictable body of law. Changing the law has untold ripple effects.

According to CNN, the Supreme Court has reversed one of its prior decisions only 300 times in the past 200 years. Most often when it does so, it reverses itself within the first 20 years or so of the decision. See CNN news report here. Most of these decisions concern relatively obscure areas of law that do not affect many Americans.

Yet, within the past 12 months, the Supreme Court has reversed three major decisions. In 2018, the court overruled some 45 years of precedent regarding deduction of unions dues in Janus v. American Federation, 585 U.S. ___ (2018). That decision changed the law to reflect that non-union members could not be compelled to pay for union negotiations. In this decision, the majority decision said stare decisis (i.e. prior decision) is not an “inexorable command.”

That is an odd thing for any judge to stay. In the legal business, we rely on precedent and prior procedures. Every lawyer builds every motion, memo, letter on a prior example s/he obtained from someone else. We live by precedent. For a judge, at the apex of a 30 or 40 year career to stare decisis is not a command is odd.

This year, in Franchise Tax Board of California v. Hyatt, 139 S.Ct. 1485 (2019), the Supreme Court overruled a precedent from 1979. That decision changed the prior law to rule that a state cannot be sued in the court of another state. And, again, the majority decision said stare decisis is not an “inexorable command.” Lawyers and judges are inherently conservative. We rely on old things. We prefer not to seek changes in the law, if we can help it. It is odd that a senior judge will dismiss the doctrine of stare decisis.

One of the dissenting judges, Stephen Bryer, commented that the courts should not overturn a decision, simply because they do not like the decision. A decision should be overturned only when the old ruling defies practical workability – when the decision has been left behind by related principles of law. He did not mention the decision in Brown v. Board of Education of Topeka, but that is what he meant. The old law must be so clearly abandoned by other legal principles that it must be specifically jettisoned, not simply re-interpreted.

And, this year, in Knick v. Township of Scott, No. 17-647 (6/21/2019), the court reversed another decision from 1985 and held that a person could sue a local government for a taking, even if state law provided recourse. See ABA Bar Journal report here.

The Supreme Court did not overrule prior precedent regarding double jeopardy in Gamble v. U.S., No. 17-646 (6/17/2019). But, it was remarkable that some observers thought the court might overrule hundreds of years of precedent regarding double jeopardy.

It is a strange thing that the current Supreme Court has overruled three major prior precedents within the past 12 months. It is rare that many observers thought the Supreme Court might overrule some 170 years of precedent regarding double jeopardy. We are in uncharted waters.

SSGT David bellavia was just awarded the Medal of Honor. He took out a building that was threatening his platoon. His battle devolved into hand-to-hand combat at times. In his speech, he gave credit to his squad, his platoon and his company. He recognized his interpreter, Sammy, who was just made a U.S. citizen. Sammy, Muslim, doubtless did much to save lives at Co. A, 2/2 Infantry, 1st Infantry Division. SSGT Bellavia is an articulate young man, who talked about why he values his military service. Because it brings out the best in him and in his compadres.

As he mentioned, every war, except for World War II, has some controversy.  The Iraq war was no different. As he mentioned, there is no political affiliation on our dog tags. No one cares what you look like, who you voted for, who you worship, who you love, who father was, if you inherited millions from your father, if you know who your father was. The military unit will become well honed into a machine of lethal moving parts that will give pause to anyone who seeks to do us harm. We go where we are sent. We serve because we do not want our children to have to serve. We stand ready to protect our country, so help us God.

The interpreter for his unit, Sammy, was just made a U.S. citizen. The crowd gave him a standing ovation, as they should. Interpeters kept us out of so many accidental confrontations. They saved our lives in a wide variety of ways.

His father wanted him to attend dental school, but as he mentions, he learned more  from fighting with these wonderful comrades than he would have learned from a lifetime of root canals. See SSGT Bellavia’s speech here.

A school board in San Fransisco has voted to spend $600,000 to remove a mural painted during the Depression by Victor Arnautoff, a Russian immigrant and the most important muralist in the Bay area at the time. It was a WPA project. The WPA commissioned fine public art all across the country during the Depression. The WPA hired talented local artists for local projects. Here in San Antonio, there is a beautiful mural at the old U.S. Courthouse building, now known as the Hippo Garcia bui

Mr. Arnautoff was a committed Communist. He rejected the traditional depiction of George Washington in thoughtful prayer at Valley Forge. He sought to capture the viewer’s attention by showing the Father of our country in daily life with slaves picking cotton and a dead Indian laying nearby, as colonists walk by. At the time, high school history books generally overlooked the incongruity of Founding Fathers who had owned slaves, wrote Robert W. Cherny in “Victor Arnautoff and the Politics of Art.”

The school board could have simply voted to cover the mural it found offensive. But, instead, despite vocal opposition, it voted to paint over the 13 panels. The pictures offend the children, noted the board members. The murals glorify slavery, genocide, and colonization, said an advisory group, the Reflection and Action Working Group. The committee is composed of activists, students and artists. Yet, according to the New York Times, 49 freshmen at the school were asked to write about the murals. Only four advocated that the murals be covered or removed.

The Board Vice-President, Mark Sanchez, said simply covering the murals was not enough, because they could be uncovered sometime in the future. He also said it was a grave mistake to paint the mural 80 years ago with no imput from Native Americans or African-Americans. Its a hurtful thing, an aggressive thing and it is too much for our young children to bear, he insisted.. See New York Times editorial here. The title of the editorial: “San Fransisco Will Spend $600,000 to Erase History.”

It is ironic. In 1956, Mr. Arnautoff was interrogated by the House Un-American Activities Committee, the House version of Sen. Joe McCarthy’s notorious committee,  because he drew a caricature of Richard Nixon. Today, we have a new generation of persons protecting us feeble persons from more un-American activities.

Oberlin College is a small private, liberal arts college in rural Ohio. It is one of the more liberal colleges in Ohio and in the Midwest – located in one of the more liberal towns in Ohio and the Midwest. In 2016, Gibson’s Bakery, a small business in Oberlin, caught a student trying to shoplift two bottles of wine. Allyn Gibson, white, confronted a black student. Two of his companions then assaulted Mr. Gibson.

Oberlin students started to protest the 100 year old business. The Student senate passed a resolution saying the bakery had a history of racial profiling and discrimination. The students accused the Bakery of racial profiling. The college suspended a long held contract with the bakery. Gibson’s felt like they had been tried and found guilty of racism on the streets. In three years, the  income of the business was cut in half.

Conservatives from outside the area flocked to the town to counter the student protests. The sidewalks were full of protestors, for and against.

And, in the midst of all this, the student and his two companions pleaded guilty to shoplifting that day at Gibson’s Bakery. They said they did not believe Gibson’s was discriminatory. Gibson’s laid off workers and stopped paying themselves due to decreased income.

Oberlin representatives appeared at the protests. The college says the Dean attended the protests to keep the students safe and the protests lawful. But, it looked like they were supporting the protests. The Bakery asked the college to issue a statement saying the bakery was not racist, but it refused.

Gibson’s Bakery sued the college for defamation. The trial judge kept the focus not on the protests, but on how actions by the college aided the protestors in various ways that harmed the income of the Bakery. The judge allowed a jury instruction that provide that if the jury finds Oberlin acted as a support group to the protestors, then they could be liable under Ohio law. There was some evidence that the school helped the students issue a flyer which called Gibson’s racist.

After a six week long trial, an Ohio jury found the college guilty of demafation. It awarded the Bakery 11.2 million in compensatory (i.e., emotional suffering) damages and punitive damages of $33.2 million. Ohio law has caps on punitive damages, so the amount will be reduced. See ABA Bar Journal news report here. Oberlin College will appeal. But, it is very difficult to overcome a jury verdict.

To award punitive damages, the jury had to find the college acted with “ill will” and malice. The college will also have to pay attorney’s fees for Gibson’s attorneys. In her closing statement, one of the attorneys for the college said the college had learned from the incident and would make changes to programs and admissions to make the school more respectful of local businesses. If true, this will become a very expensive lesson for a small liberal arts college.

In this day, when so many people see themselves as experts on racism, we should all pause. I wrote a post here about how we as a society have become so expert on racism that some of us even detected racism in Mary Poppins. Today, Joe Biden is criticized not because he supported segregation. He did not. Far from it. He simply said he worked with segregationists to get bills passed that benefited minorities. Yet, he too has been deemed by the “experts” to be racist. I just wish these so-called experts on a racism would end up on a jury in one of my cases.

War memorials are close to the heart of every veteran, especially those of us who have served in a time of conflict. You do not really appreciate war memorials until you have lost a buddy or two and then come home. In American Legion v. American Humanist Assoc., No. 17-1717 (6/20/2019), the U.S. Supreme Court addressed a World War I memorial in Maryand that was erected in 1925. The memorial is a large Latin cross, meaning the traditional Cristian cross, with the names of 49 Prince Goerge veterans who were lost in the war. It is situated on state owned land. It is known locally as the peace cross.

The American Humanists argue that the cross represents Christianity. The government supports the monument by maintaining the grounds and allowing the cross to remain. The district court granted summary judgment in favor of the American Legion. The Fourth Circuit Court of Appeals then reversed, saying the cross was clearly a Christian symbol. The Fourth Circuit suggested the arms be cut off, to make it simply an up and down pillar.

The Supreme Court reversed the Fourth Circuit. The court, Justice Alito writing the mostly majority opinion, made the point that 90 years later, it is inherently difficult to ascertain the purpose behind selecting a Latin cross. Too, over hundreds of years, the Cristian cross has taken on secular meaning. One finds the Christian cross everywhere from the Swiss flag, to the Red Cross symbol, to military awards, such as the Distinguished Cross and the Navy Cross. The simple Christian cross came to symbolize the WW I cemeteries. Even the poem, “Flander’s Field,” the well-known poem from WW I, has this refrain:

“In Flander’s fields the poppies blow

Between the crosses, row on row.”

The court makes the point that the Latin cross has taken on a secular meaning. And, notes the court, it makes sense that we would use symbols that were important to the deceased to memorialize those same deceased veterans. As one mother said when she donated $25 to the cross fund in the 1920’s, that cross symbolizes to her her son’s grave stone. Her son who was killed in France during the war. See the opinion here.

In this day when we seem to anxious to pull down veteran memorials relating to the Civil War, we note the court’s remark that a host of motivations play a role when a memorial is erected. The motives of the builders, of the entity that accepts the monument, of those who make donations. It is difficult to ascertain the motives behind these ancient memorials.