To understand why a public organization is doing something, never overlook the motivation to avoid losing a lawsuit.

U.C. Berkeley recently has been the locus of high-profile right-wing provocateurism. This physical manifestation of online trolling[1] has roiled the campus, resulted in its occasional occupation by a militarized police force, and cost the underfunded university hundreds of thousands of dollars. These activities have also managed to set portions of the student body and faculty in opposition to the newly appointed and previously quite popular new leader of the school, Chancellor Carol Christ. It has, in other words, accomplished everything it set out to do.

Chancellor Christ responded to the recent invitations of Ben Shapiro, Milo Yiannopoulos, and other speakers by voicing a strong, principled defense of First Amendment freedom. Acknowledging that the campus was required by law to allow invited speakers to speak, she went on:

[T]he most powerful argument for free speech is not one of legal constraint — that we’re required to allow it — but of value. The public expression of many sharply divergent points of view is fundamental both to our democracy and to our mission as a university. . . . Once you embark on the path to censorship, you make your own speech vulnerable to it.[2]

Further communications from the Chancellor’s office have continued in this vein, while also stressing the school’s commitment to safety,[3] lamenting the regrettable necessity of the expenses that maintaining that safety has required,[4] and expressing remorse for the strain that all of this has caused the people who come to campus to attend classes, teach, research, and work.[5]

While these sentiments are no doubt heartfelt, I propose that underneath the First Amendment justifications for recent administration decisions one will find the more humdrum calculus of any public administrator: the desire to avoid losing a major lawsuit. To date, litigation risk management has not played a major role in the public discourse around the University’s actions, but I have no doubt it has played a large part of the private considerations of the Chancellor and her counsel. I further propose that understanding how such decisions work is useful for identifying the many values that such a decision might minimize or ignore.

The Avoidance Calculus: Speech and Safety at Any Cost

The administration’s decisionmaking appears to be as a series of nested risk avoidance decisions, with each risk avoidance creating its own risks, leading to further avoidance measures, until the university is protected. First, the University has decided that, above all else, it must avoid losing a free speech lawsuit. Therefore, it must permit all student-invited speakers to appear on campus, subject to uniform speaker invitation rules. However, this litigation risk avoidance strategy has consequences: controversy over the appearance of a speaker leads to protests and, most problematic to the University, potential violence. Second, therefore, the University seems to have decided – consistent with its usual responsibilities to people who enter its premises but with much less fanfare and high rhetoric – that above all else it must avoid losing a lawsuit for an injury that occurs on campus as a result of the permitted event. Of course, this litigation risk avoidance strategy again has consequences: it has involved a very large police presence at very high financial cost, and various levels of psychological burden on the student body, faculty, and staff.

However, with safety secured, harms from the safety measures employed are either monetized or placed upon parties other than the administration, each in fashions that do not expose the university to litigation. Helicopters overfly the campus for a week. Armored vehicles patrol Bancroft. Hundreds of riot police mill around south campus. The university system and school pay hundreds of thousands of dollars in security costs. All of this harms people on campus in any number of ways, but the consequences to the university are of a different quality than those of speech and safety. The administration will face criticism, anger, condemnation, frustration, and second-guessing of its spending decisions. As usual. To a university attuned to the risks of litigation, these costs are totally acceptable if they do not result in a lawsuit lost. Given the school’s budget woes, there is some as-yet undiscovered limit to this calculus when it comes to financial outlay. But there does not appear to be a limit when it comes to distressing the people who come to campus to work and learn.

Decision Analysis and the Calculus of Litigation Risk

All of this makes perfect sense from the perspective of legal strategy. Litigation risk is typically assessed by probability of loss and magnitude of harm, and it is clear from public statements how the university perceives those factors.

Although techniques vary, the most common approach to litigation risk assessment is decision analysis, assigning probabilities and weights to possible outcomes in the litigation process.[6] In its simplest form, a threatened lawsuit can be considered to present a binary possibility: you win, or you lose. The costs associated with losing, to the extent known, and the costs associated with winning, to the extent known, can be combined with the expected probabilities of such outcomes, to the extent known, to produce an expected value of litigation. If the expected value is positive, you may decide to risk a lawsuit. If the expected value is negative, you may not. This type of analysis appears to be central to the Chancellor’s thinking.

The Civil Rights Litigation Risk Calculus

As the Chancellor has noted, if U.C. Berkeley, an agency of the government of the State of California, were to deny access to student-invited speakers based on those speakers’ political views (a content-based restriction), or were to restrict speakers based on what they might say and how people might react (prior restraint), the University would be sued for violating the federal civil rights of the students who invited those speakers. To the extent that the University was found by a court to have violated the dictates of free speech jurisprudence, it would have been exposed to substantial costs in the form of legal damages. Although it is extremely difficult to predict the exact quantity of such damages, I propose that a $2 million judgment is not outside the realm of possibility.

The school perceiving a strong likelihood of a civil rights loss is consistent with the assessment of the legal situation that has been repeated several times by Erwin Chemerinsky, the new Dean of Berkeley Law, and an acclaimed scholar of U.S. Constitutional Law. Dean Chemerinsky appears to be acting as a sort of pro bono advisor to the University on these issues, or at least as a qualified person providing public statements in line with the whatever private counsel the school has at its employ. In the Chancellor’s Faculty Panel on Free Speech, he laid out a very clear exposition of the school’s responsibilities along these lines.[7] In response to a student’s proposal that Berkeley take a stand and risk the consequences of litigation to make a statement, he answered:

I find so appealing the notion you say, but everyone in this room should be clear about what will happen. If the campus were to say Milo is not welcome to speak . . . , Milo and his lawyers will immediately go to court, they will immediately get an injunction so they’d be allowed to speak. The campus will have to pay Milo’s attorneys’ fees, and perhaps some money damages as well. . . . Also what will happen will be, Berkeley will be the poster child for the suppression of speech. . . . So I think what you say may be a very romantic notion . . . but I’m telling you if the campus were to try, it would ultimately be very counterproductive, and it really wouldn’t accomplish what you want.

Indeed, creating the conditions of possibility for such a lawsuit may have been the entire purpose of Free Speech Week. Attorneys for the student organizers have already filed a civil rights complaint alleging that Berkeley’s administrative processes denied conservative students the ability to host their event,[8] and have threatened litigation on the same grounds.[9] This did not happen without preparation. It is a familiar strategy in litigation-oriented activism. But by denying the lawyers the ability to claim that the school actively cancelled an invitation, the litigants have been forced to fall back to the claims that the university somehow constructively denied them the ability to conduct their event – claims that, given the incompetence of the organizers, the school’s very public efforts to accommodate them, and the general environment on campus, are probably going to be laughed out of court. In a legal environment that favors student speech, and punishes public organizations that deny it, the campus appears to have seen the lawsuit coming and acted wisely to avoid it.

In other words, the University faced a choice: try to stop an invited guest from speaking on campus with something like a 90% probability that such a decision would result in a finding that the school has violated the civil rights of its students, or permit the speaker to attend and face only (say) a 10% chance of the same outcome, plus costs to maintain safety. With loss risk defined as high, expected value calculation maximizes the possible downside risk. If a successful civil rights litigant could win a judgment of (say) $2 million, then the school faces a $1.8 million loss. Rationally, in this (very speculative) hypothetical, the school might be justified in spending up to $1.7999 million in attempting to allow the speaker to appear, before it would do anything differently.

Finally, given the reputational cost to the University that prides itself as the birthplace of the Free Speech Movement of losing a free speech lawsuit, and the political consequences of that reputational loss, and the fiscal consequences of those political consequences, it might be willing to spend much more. Multiplied by a 90% probability of feeling them if the lawsuit is provoked, what cost wouldn’t the university endure? We have not yet seen.

The Personal Injury Risk Calculus

Contraposed against a large negative expected value imposed upon it by provoking a civil rights lawsuit without having done everything possible to accommodate a speaker, the University has a second overriding concern – and, not coincidentally, litigation risk – the safety of all involved. Fires and broken windows are not the only damages that the school must consider. If physical altercations break out between protestors and counter-protestors, and the university does not protect them all from each other, somebody could be hurt or killed. Such a person, or that person’s estate, could file a lawsuit against the university for the legal damages resulting from that physical harm. This is the realm of tort law, and something that the university must consider every day.

As the operator of a great deal of real estate, and with fiduciary responsibilities to tens of thousands of people, the school’s calculus is pretty routine: do everything that can be done to foresee the risks, and then do whatever is possible to avoid whatever risks have been foreseen, subject to a rather flexible standard of reasonableness. For the same reason that a supermarket puts a bright yellow “caution: wet floor” sign near a freshly mopped floor where someone could slip and fall, the University has put police barricades near a contentious situation where someone could get attacked. The choice is made all the easier by the special duties that schools owe to invited guests, and the special risks posed by (likely) accusations that the school, because it did not approve of the speaker’s views, did not do everything possible to protect the speaker and the students who invited him or her to speak.

The situation is unusual enough that there is not much precedent to guide the University’s actions. Would it be enough for the University to put out a yellow sign that says: “Caution: Protests” and let people work it out for themselves? Probably not, but a court would have to decide whether that was reasonable under the circumstances. The answer is the same for basically anything the university decides to do, up to the maximum possible response within the University’s power to conduct.

The answer, then, is to minimize the risk of a physical harm or wrongful death lawsuit, and further deny fodder for civil rights claimants, by imposing as much security on the situation as possible. As the campus has seen, this means hundreds of armed and armored riot police, concrete barricades, and air cover in the form of helicopters and camera drones. If anybody suffers physical harm, nobody can say that the University did not do its utmost to foresee those risks, and avoid them. Every possible precaution was taken. To a risk-averse university administration, this strategy must look entirely reasonable. Risk: minimized!

The Failure of Success

Those who must teach and learn on Berkeley’s campus know otherwise, of course. The acceptance of a post-9/11 militarized police force and routine overflights by noisy helicopters do not seem to be much of an improvement to the campus environment. Constant security alerts, constant surveillance, inaccessible services, a faculty-led teaching boycott, and road blocks, to say nothing of the increased anxiety on campus due to the provocations of anti-intellectual hatemonger trolls and their disciples, are real costs. The campus is besieged.

The problem is that these costs are not visible in the litigation risk calculus, because they are not as clearly recognized under the law. What legal recourse do students, or citizens for that matter, have to a piecemeal imposition of the militarized surveillance apparatus on their lives by those who have the fiduciary duty to act in their best interests? What is the price of physical security? What is the value of the competing principles that absolute safety must impose. To anyone who lived through the last twenty years, these are not new questions. That is, in countering the depredations of the Trump Administration, it appears that the campus has forgotten – or worse, embraced – the depredations of the Bush Administration.

The price we pay is a degradation of the University of California’s unique educational mission. Teachers who want to teach, students who want to learn, researchers who want to work, and staff who want to help all of that occur – are less able to do their jobs well. The UC’s Mission Statement and the University’s Principles of Community are violated at every turn. But these standards, important though they might be, are perhaps vague enough that any lawyer worth her ticket could drive a truck through them in either direction. And so, violations of these principles, however obvious they may seem, do not pose a litigation threat to the campus, and so are permitted in the face of other threats that do.

Conclusion

At the end of the analysis, what else is the campus to do? I believe that the University is acting contrary to the short-term interests of its existing students, staff, and faculty, in absolute good faith and in the face of an extremely difficult situation not entirely of its own making. In order to preserve the long-term viability of the school, the administration has had to make some very, very difficult choices.

I do hope, however, that the University can be more open about its decisionmaking process, and the role that litigation risk has played in its decision to accept the ongoing pain and suffering of the campus. If it does not explain the real basis for its choices, it denies participants the ability to contribute constructive criticism, and to examine and comment on the premises of the argument. Is the risk of a lost civil rights lawsuit really so high? Are less invasive policing measures perhaps likely to be found reasonable under the circumstances? Are financial costs a limit on what is reasonable? Can non-financial costs be brought into the calculus in any way? There are reasonable points of disagreement. But the University, whether it intended to or not, has already provided its answers to these questions, and placed them outside the debate. Philosophical discussions of free speech are important, but it will not be possible to have productive dialogue if the University does not attempt to invite people into the more humdrum, but equally pressing, administrative decisionmaking that, it appears, is truly informing its thinking.

 

Adam Orford is a graduate student at the Goldman School of Public Policy and the Energy & Resources Group. Prior to returning to school, he practiced law.

[1] Trolling has been defined as “to make a deliberately offensive or provocative online post with the aim of upsetting someone or eliciting an angry response from them.” Google Dictionary. Other than the online part, the term is apt for what has happened at Berkeley.

[2] Chancellor Christ: Free speech is who we are (Aug. 23, 2017).

[3] Schoolwide email from the Chancellor (Aug. 25, 2017).

[4] Schoolwide email from the Chancellor (Aug. 28, 2017).

[5] Schoolwide email from the Chancellor (Sept. 20, 2017).

[6] See, e.g., B. Henthorn, How To Use Risk Analysis To Calculate Settlement Value, Law 360 (Feb. 19, 2014); Blank Rome, Calculating the Settlement Value of a Case (Apr. 2014).

[7] See Berkeley scholars talk about free speech, finding common ground (Sep. 10, 2017), and embedded video recording of panel discussion.

[8] A. Wong & C. Lee, Berkeley Patriot files civil rights complaint against UC Berkeley (Sept. 22, 2017).

[9] Facebook post by Milo Yiannopoulos containing letter from the Berkeley Patriot’s attorneys.

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