Litigation Update: De Piero v. Pennsylvania State University: DEI & Hostile Work Environments Under Title VII

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Emily Manning:  Hello everyone and welcome to this Federalist Society virtual event. My name is Emily Manning and I'm an Associate Director of Practice Groups with The Federalist Society. Today we're excited to host "A Litigation Update on De Pierro v. Pennsylvania State University: DEI & Hostile Work Environments Under Title VII." We're joined today by Michael Thad Allen, partner at Allen Harris Law. And our moderator today is Will Trachman, General Counsel at the Mountain States Legal Foundation, where he protects the rights of individuals to live freely and securely under the U.S. Constitution.

 

      If you'd like to learn more about today's speakers, their full bios can be viewed on our website, FedSoc.org.  After our speakers give their opening remarks, we will turn to you, the audience, for questions. If you have a question, please enter it into the Q&A function at the bottom of your Zoom window, and we will do our best to answer as many as we can.  Finally, I'll note that, as always, all expressions of opinion today are those of our guest speakers, not The Federalist Society. With that, thank you for joining us today.  And Will, the floor is yours.

 

William E. Trachman:  Thanks, Emily. Well, we're very honored to have with us today Michael Thad Allen to talk about the De Peiro case, a very fascinating case with a tremendous set of issues.  So we're very happy to have Michael here to talk us through those topics. So, if you have a question, there is a Q&A box at the bottom of your screen. Go ahead and ask it. We'll take questions at the end. So keep them in mind and go ahead and submit them as they come to you.

 

      Our guest is Michael Thad Allen. And Michael actually has a PhD in history and sociology that he got long before he got a law degree from Yale Law School, which is, I hear, a very good law school. And we are very excited to have him talk about the De Piero case. This is a case in Pennsylvania involving hostile work environments and Title VII. And so, certainly a set of up-and-coming issues that I think are very relevant to our folks and to Federalist Society members more generally. 

 

      As Emily said, I'm Will Trachman. I'm one of the members of the Civil Rights Committee. And we're always happy to have fantastic guests like this to talk through our issues. With that, Michael, welcome.

 

Michael Thad Allen:  Thanks for inviting me. I want to say a little bit about that, Will. Because Will had the lack of good taste to mention that I went to the Yale Law School, which, as far as I can tell, is becoming an adult day care in the meantime. But when I was there, as at any law school, there was The Federalist Society and there was the Constitutional Society. And that was in the Bush II years. As Will said, I went to law school after an academic career. And the FedSoc presentations were uniformly excellent, and I always enjoyed them. And I thought that that was a real, enriching experience in law school, which I look back to very fondly.

 

William E. Trachman:  Well, we're happy to have you.

 

Michael Thad Allen:  I just thought I would mention that.

 

William E. Trachman:  This is your first appearance for our FedSoc webinar series. So, we're happy to have you here. Why don't you, from the broadest strokes, talk about the case that you've been litigating, De Piero.

 

Michael Thad Allen:  Sure.

 

William E. Trachman:  Go ahead.

 

Michael Thad Allen:  So, the De Piero case, Zack De Piero was a professor at Penn State Abington. I'm sure many of you who are listening know that Pennsylvania, like many states, has a state university system. And the state university system has institutions of varying prestige, and on down the line. I think of, say, Texas, for instance, which has a flagship university, the University of Texas, then it has a Texas State system. Some of those are excellent universities.  Some are not much different from community colleges. 

 

And I say that in a positive sense, because first generation college-goers, things like that, will go to these regional campuses, get general credits transferred to the main campus, and things like that, or get semi-vocational degrees like nursing, paralegal-type degrees, things like that, that really make a huge difference in their lives. I am not convinced that people go to these institutions to imbibe the interpretations of social justice or whatever it's being called by the faculty.

 

At any rate, Professor De Piero was a professor of English composition at Penn State Abington, a regional campus. Think of it as, perhaps, a satellite, in the same way that many states have. The main campus there is Penn State in Happy Valley, which everyone knows, I think, from football, and so forth and so on, sometimes, unfortunately, scandals, as well. His job was to teach people English composition skills that they would need in the workforce, many of them coming from -- I don't know how to characterize this, but let's just say not the leading high schools or backgrounds in the state. Some of them were disadvantaged socioeconomically, however you want to put that.

 

And that was really, like so many excellent academic institutions in the United States, it was the purpose of Penn State Abington to be a muscle, a muscle to elevate people who had not had a chance to get a good, grounded, high school education into the ranks of very well-prepared professionals at any number of ranks in our economy, regional and national. That was his job. Of course, after the murder of George Floyd — as I think anyone who's been following academia knows, or the rest of our society, as well — there was a renewed emphasis on what the faculty there were calling things like anti-racist training or social justice emphasis, equity and inclusion, of course, diversity.

 

Diversity, equity and inclusion, usually, in these contexts, means something completely different from what you would think it would mean. They were certainly not in favor of the diversity of thought. I don't even think they were interested in the diversity of the racial composition of the campus. They were interested in demonizing, unfortunately, in this case, white people. Equity meant the equalization of outcomes, not the equalization of opportunity. And inclusion, of course, meant the exclusion of people like Professor De Piero, who, I would say, didn't attack his colleagues, but actually did raise pointed questions and criticism of some of the ideological movements afoot in the university.

 

      And, again, this was a university, at least in his niche, which was dedicated to supposedly teaching English composition, not indoctrinating, not teaching people how to be social activists It sometimes dumbfounds me that the people who lead these institutions consider them to be the kind of basic skills which we used to call reading, writing and arithmetic, that these have been subordinated to creating a generation of baristas of some sort who are going to go out and be social activists all over the place. And God bless them, I suppose.

 

      So, he found this obnoxious. Like I said, he spoke out about it. He not so much spoke out against it, as he asked questions in meetings which were characterized as teacher training meetings. And in one particular meeting in October of 2022, I believe, he asked for an example of what was the difference between equity instruction, what was a teacher to do if they were to take this equity mission seriously, as opposed to what they were already doing? And it was very funny because he said it in about the tone I'm conveying here. 

 

He didn't use any expletives. He didn't call out anyone in any insulting manner. And there was about a minute and 45 seconds, or a minute and a half of silence. And I can assure you that, even in this Zoom setting, where I can only see Will and Emily on the screen, I don't know how many of you are listening, but if I fell silent for a minute and a half, you would notice it. It would sound like a year and a day. And there was just crickets. Then he was brought up on charges that he had acted unprofessionally.

 

And I think this is a trick we're seeing —at least in the academic context, in the employment context too, I think — is that challenges to free and protected speech are not being characterized as the suppression of viewpoints, which they certainly are, but as a reaction to "unprofessional behavior" or "harassment and bullying." In my home state of Connecticut, there is a bullying statute, but it has no teeth. Institutions don't face legal liability for "bullying," especially not outside the educational context. And yet, HR departments will enforce anti-bullying policies anyway, for reasons I think we know.

 

I think many HR departments, I'm not saying all of them, but many HR departments — certainly many offices on college campuses that are tasked with enforcing codes of conduct and campus discipline, be they the diversity office, the Title IV office, or whatever they call themselves — are staffed by activists. We're noticing, increasingly, in academia they have been trained in education programs throughout the United States, and they circulate into administrative offices in HR or some equivalent. And this happened to Zack as well. He was sanctioned. He wasn’t fired. But he was sanctioned for having the temerity to ask questions about literature that they were asked to read, with titles like, I think one was called something of the nature, "White people are the problem," or things like this. And I just ask everyone to do a thought experiment.

 

If an academic institution was assigning, in a uniform way, teaching materials, pedagogical instruction materials, repeatedly, with titles like "Black people are the problem, "Black fragility is the problem," over and over again, there would be no question that — and it would be rightly so — that the university would rise as one individual and oppose this kind of incoherent nonsense. But at Penn State, this was characterized as "a national discourse" or "a national conversation on race." Those are some of the basic bare-bones facts, which we pleaded in our complaint. Of course, Penn State filed a motion to dismiss. I would say the attorneys on the other side are very capable. They made the moves you would expect to make, and they made them well. We had also brought on --

 

William E. Trachman:  But why don't we talk through --

 

Michael Thad Allen:  Oh, sorry.

 

William E. Trachman:  -- before we get to talking about the motion to dismiss, the claims that you brought. 

 

Michael Thad Allen:  Oh, yeah. 

 

William E. Trachman:   So, we've talked about Zack speaking out.  And we've talked about the training materials that are going on and the educational materials that make sweeping generalizations about Caucasians, saying that white people are the problem.

 

Michael Thad Allen:  Yes.

 

William E. Trachman:  So what were the causes of action that you filed?

 

Michael Thad Allen:  Right. So, as a federal cause of action, we brought a Title VII claim. And Professor De Piero, on his own, had submitted an EEOC complaint, and an equivalent. There's also the PHRA, and I'm trying to remember -- the Pennsylvania Human Rights Act, is the equivalent state law that prohibits discrimination in the employment context. We also brought a 1981 claim. Many people here, I think, know that 42 U.S.C. 1981 prohibits, basically, different -- it's one of those peculiar statutes that mentions -- it was passed right after the Civil War, so it mentions and prohibits treating black Americans differently in contract.

 

But it also has a clause which prohibits treating black Americans differently in, basically, a kind of equal protection-type language, in which they are entitled to the same disciplinary and administrative treatment as any other white citizen. It's since been interpreted in universalist terms — very early on, I should add — very early on interpreted to be applied in a universalist way, not just as a statute that applies to white's treatment of black people or vice versa. We brought that claim under both of those headings, the contracts portion, and I'm forgetting how it's characterized, that second clause. Maybe you know, Will, the one that -- I'm going to look it up. 

 

William E. Trachman:  It says something to the effect that, in contracting, all citizens shall have the same rights as white people.

 

Michael Thad Allen:  That's the contract portion. 

 

William E. Trachman:  Why don't we --

 

Michael Thad Allen:  Anyway, I'll move along. There's 1981. Then we also brought a First Amendment retaliation claim. And I'm trying to think, is there anything else? It's the Equal Benefits Clause under 1981. And I'm just trying to make sure I don't leave anything out. I think that's a good roundup.

 

William E. Trachman:  Good.

 

Michael Thad Allen:  So, if you bring, like we did, a hostile environment claim under Title VII — and the law throughout the states is usually the same, in other words, the state equivalent will be interpreted under the same rubric as the federal Title VII — it usually entitles you to different kinds of damages and so forth. At any rate, the Title VII claim has various theories, things like disparate treatment, but also hostile environment, are two distinct claims.

 

And, usually, what defendants will do is they will say, "This has to be dismissed because there's no disparate treatment claim," which we were arguing a hostile environment claim, primarily; a disparate treatment claim, obviously, being one where you can show that you were member of a protected class, here, race, and people of a different race were treated more favorably, you were not treated the same, things of that nature. We were arguing that this sort of drum beat of weirdly backwards, slipping in through the back door, this racial supremacist literature — which I'm happy to talk about more — was, itself, creating a racially hostile environment at the institution.

 

But, of course, they argued that we didn't make a disparate treatment claim, and, therefore, it all should be dismissed. Well, we did mount a defense of a disparate treatment claim. We lost on that. But the hostile environment claim survived. And, unfortunately, the First Amendment claim did not survive on various theories. One was that he didn't suffer an adverse employment consequence. And the other was that the judge — I would have liked to dispute this — did not consider his speaking out in these teacher training meetings as an issue of public concern, rather that it was sort of like a Garcetti-type analysis, although she didn't go into it — that it was more addressing the particular circumstances of his employment.

 

William E. Trachman:  Interesting.

 

Michael Thad Allen:  So, I think that's a good roundup of the claims, and our success and failure with them as they came out. 

 

William E. Trachman:  We already have two questions in the queue. So, if you have a question, go ahead and drop it in there. We'll start questions in a few minutes, but I had one question for you already, on what you just said. So, the court didn't question the fact that there was actually retaliation in the form of the sanction? It was that you can't bring the claim because, in order to meet the threshold, it has to be on a matter of public concern, outside of job duties?

 

Michael Thad Allen:  Correct. I think I'll read from the opinion here. I can find that. 

 

William E. Trachman:  Well, that's okay. Why don't we talk about the opinion and the outcome on the Title VII?

 

Michael Thad Allen:   Sure. Anyway, that's correct. And the Third Circuit law is relatively unfavorable on the First Amendment claim. I think everyone would recognize that if you start getting sanctioned — even though they don't take your job away, they don't dock your pay — that would be enough for any reasonable person to chill their First Amendment speech rights. But that's not how the Third Circuit sees it. It has to rise to something more. You have to lose pay, or things like that. Anyway, so back to the -- did you want to ask a question about the hostile environment claim?

 

William E. Trachman:  Yeah. Why don't we walk through the court's denial of the school's motion to dismiss, on the hostile environment theory.

 

Michael Thad Allen:  So, we had pleaded, through various specific dates and specific things that were said, some of which I summarized. Another, for instance, being that there was a teacher training session in which, in honor of George Floyd, only the white people were supposed to hold their breath longer than everyone else, so that it would hurt, or something like that. How this was supposed to be edifying is still a mystery to me. There were things like that.

 

But we pleaded them with specificity, and the date, and things like that, where they occurred, almost like you would go about pleading a fraud claim, basically — June 2020, October 2020, November 2020, January 2021, October 2021 — and the judge ruled, taken together, these allegations plausibly amount to pervasive harassment that, at least at the motion to dismiss phase, passes muster. She analyzed some cases, especially from the district of Colorado, in which similar challenges to DEI anti-racism training had gone against the plaintiff, had been dismissed, and distinguished those cases, to some extent, following our briefing, but to some extent -- I should say I have a great deal for the judge in this case, Judge Wendy Beetlestone, an immigrant from Nigeria, in point of fact, who was appointed by Obama. I thought she was very thorough and does strike me as a hardworking judge. 

 

I'm just going to read the paragraph that I find most important and persuasive from her decision. I'm not going to get into the case citations. But she held, "To be clear, discussing, in an educational environment, the influence of racism on our society, does not necessarily violate federal law." I don't think anyone here would find that controversial. "In allowing De Piero's hostile environment claim to proceed, the Court does not contemplate that it is or should be the norm to maintain a workplace dogmatically committed to race-blindness at all costs. To do so would 'blink at both history and reality in ways too numerous to count.'" There, she's quoting from Jackson's dissent in Students for Fair Admissions.

 

"Training on concepts such as white privilege, white fragility, implicit bias, or critical race theory can contribute positively to nuanced important conversations about how to form a healthy and inclusive working environment. Indeed, this is particularly so in an educational institution. And placing an added emphasis on these issues in the aftermath of very real instances of racialized violence, like the murder of George Floyd, does not violate Title VII Section 1981 or the PHRA. But the way these conversations are carried out in the workplace matters. When employees talk about race, any race, with a constant drumbeat of essentialist, deterministic and negative language, they risk liability under federal law." 

 

And I think that, also, you'll recognize that that also gives us a roadmap for what we need to show in order to survive summary judgment. And we're really entering the thickets of discovery now. 

 

William E. Trachman:  Yeah. Well, in all candor, the case that was distinguished in this case was my case out in Colorado, the Young matter, which just got affirmed to the Tenth Circuit on Monday. But let me ask you what happens next. So, you're proceeding to discovery on just the Title VII claim?

 

Michael Thad Allen:  Correct. I had entertained amending the complaint to try to replead the First Amendment claim, as I found it -- like I said, it's a careful judge. And perhaps we could have done a better job, more specifically, pleading out his speech was a matter of public concern. But, having analyzed that, we are just moving forward. And we're not going to amend the complaint. We're moving forward solely with the hostile environment claim.

 

William E. Trachman:  And so there will be a briefing after discovery. What is the timeline like for the rest of the case?

 

Michael Thad Allen:  We just asked for an extension of time. There were some extensive discussions, which eventually fell apart. Then, now that we're facing discovery and actually litigating the claims, we're going forward with them. Discovery was going to close April 2, but we're asking for more time. In a sense, this makes the case very simple. We need to prove a hostile environment claim. They need to show that there wasn't one. Because my client, Zack De Piero, got another job relatively quickly, left Penn State and got a job at a community college -- now, having been a previous academic, I think that is, itself, a difficult decision for any academic to make. To step out of a tenure track position at a university and go to a community college is a real step down in prestige. But, of course, the law only recognizes whether you have a job or whether you don't and doesn't count some of these things that matter tremendously to academics, and I don't think constitutes real harm and damage. It's very difficult to get any compensation for it.

 

William E. Trachman:  It's interesting what the judge said, it's not illegal to make sweeping generalizations about white people and call them fragile or other derogatory terms. It's just that, if it has a secondary effect on the workplace, then it's a problem. But, obviously, lots of things can have indeterminate effects in the workplace when they start. And so, it's a little strange that the court would endorse these very aggressive training methods.

 

Michael Thad Allen:  I don't disagree with you, up to a point. But I think, especially in academia -- let me say this for your listeners. All we do at Allen Harris, practically, is represent professors and students against universities. And having been a former professor, maybe we are, to some extent, well-positioned to do that, and Samantha Harris, my partner, having been a longtime senior fellow at the Foundation for Individual Rights and Expression. I think we obviously don't want to cross the line and get in a situation which I think could be used against people that we would want to be speaking at universities as easily as people we don't want speaking at universities, that no one wants a world in which Robin DiAngelo's White Fragility can't be assigned in a class or can't be discussed in an open forum. 

 

We want it to be discussed so that it can be more effectively refuted, if we disagree with it. We don't want anything put in, I guess, what might be called the poison cabinet, where it can't be discussed, especially in the university setting. And I think she was sensitive to that. I think, in my opinion, I personally want the Constitution to be interpreted in a colorblind fashion. I think it is egregiously misstated how, for instance, approaching the law in a colorblind fashion guards against implicit bias, to the extent that it exists. 

 

That's one of the reasons why we have colorblind standards, like colorblind testing so that we are not prejudicing people on the basis of preconceived stereotypes. So, I wasn’t a big fan of that part of the decision. But I think it was a very well-worded decision in the way that it tried to strike a balance between protecting the kind of freedom to discuss controversial ideas, but also trying to draw a line where, when those kinds of ideologies become enforced as dogma, that that can create a liability under our civil rights laws. 

 

William E. Trachman:   And suppose you win. What's in the prayer for relief? What is the remedy that would end up happening?

 

Michael Thad Allen:  Yeah, that's a good question because I think we do have a claim that they clawed back some pay from Mr. De Piero when he switched to his new job. In terms of money damages, there really isn't that much to argue about, because his new job, again, I think it was a step down in prestige, and damaged him in that way. But it didn't really damage his earning capacity in the same way as, say, being fired outright. Maybe you know the case of Tabia Lee v. Foothill-De Anza College out in California. In that case — very similar to this, in a way — she was actually fired. That's a huge difference. So she has very real and career-altering damages, whereas Professor De Piero was fortunate enough to find an academic institution where he could find a professional home. 

 

      Unfortunately, if you stand up, there has become such a homogenous outlook throughout academic institutions that if you become known to stand up against this kind of ideological dogma, it's very, very hard for our clients to get jobs in other institutions, notwithstanding the fact that academic job markets are atrocious anyway. There are less markets than they are forums for isolated opportunities that crop up for individuals who are seeking -- did that help answer your question? I'm afraid that we're not going to have a huge amount of damages. That's why the support of the Foundation Against Intolerance and Racism is very important.

 

      Let me say something about that, Will. Because I bet you, in your firm, face the same thing. All of our clients, on the plaintiff side, are individual clients, basically. Very few professors, given the nature of their salaries, can afford litigation. Especially in a case where there aren't tremendous damages at stake, you almost have to counsel clients not to do it, even if they have a very, very strong case. So that's why I think it's important that nonprofits can step in and support some of these cases so that we can set law. 

 

Whereas, otherwise, we just had a trial in the Southern District of Texas where the State's argument was "look at how this family had the temerity to challenge this in court and spend all this money." They're playing with house money, the taxpayers of Texas, supporting these bureaucrats to expel students and steal their tuition money. And they were incensed that someone took legal action against the university. As if that's an argument that a jury should listen to. Now, unfortunately, in that case, we did lose. So maybe the jury did listen. I'm not sure.  

 

William E. Trachman:  Well, we do have quite a few questions. Let's go ahead and get to --

 

Michael Thad Allen:  Yeah, sorry.

 

William E. Trachman:  No, it's been going great. If you have a question, go ahead and drop it in the Q&A box. We will have some time for your questions. The first is about the cause of action in the complaint. Someone asked whether there was a contract claim based on tenure. I think you said this was a tenure track position, but he didn't get tenure.

 

Michael Thad Allen:  No, there was no contract claim. And he wasn't denied tenure. We had to argue constructive termination because he resigned his job at Penn State and then, at the same time, was getting a job at a different institution.

 

William E. Trachman:  And I think you said that — this is the next question — your firm handles mostly free speech claims by professors and students. The next question is, "How would this be different if this were a student who had to read White Fragility, and maybe absorb it?" You did a thought experiment earlier before, if you flipped the race to black fragility.

 

Michael Thad Allen:  Right.

 

William E. Trachman:   And I always do a thought experiment in my mind, which is, what if you were forced to read Mein Kampf and digest it and absorb it and believe it. Would that be a hostile environment? So, what would happen?

 

Michael Thad Allen:  Well, it's interesting you bring up Mein Kampf, because I was a historian of Nazi Germany, as you might have looked up. I published extensively on the holocaust and studied the SS managers and bureaucrats who ran slave labor in the concentration camps. That's what my publications were about. So, if you were going to say to the students, if students had an argument that they couldn't be forced to read documentation from the Nazi period, of which Mein Kampf is one example, that would be a disservice to the education of the students. 

 

      Now, everything depends on how it's taught, right? If, as in these meetings, you teach this racist dogma in such a way that no dissent is allowed, that it's not taught as even historical material or a viewpoint that is subject to debate, but as gospel truth that has to be accepted, that's a very, very different matter. So, I think that would be an argument that, for instance, when students are forced to sign on to certain statements or they're coerced, that could well become a compelled speech claim. If they're just assigned to read things with which they disagree, I think this is one of the problems we're facing in universities throughout the, if you want to call it an industry, is that students will object that something makes them feel uncomfortable.

 

And that will become actionable in the campus cloud cuckoo land courts that universities maintain. I see that as a bigger problem. We don't have as many free speech cases. I think there was a smattering of, for instance, students who were being attacked for their views on Palestine. That's becoming an issue recently. That presents in a very different posture. It's usually public demonstrations. And then there will be disciplinary consequences for someone who said something that the university disapproves of or is, as everyone saw before Congress, completely constitutionally incapable of contending with.

 

William E. Trachman:  Next question, without getting into too much of the inner workings of your strategic decisions, “Was there a reason that you chose federal court instead of state court, given that the PHRA was in play?"

 

Michael Thad Allen:  Yeah. I have a friend here in Connecticut who's a labor employment lawyer who brings things exclusively in state court because we have a very baroque civil procedure practice book. So he delights in doing that. But we typically try to bring things in federal court because of the uniform nature of the federal rules of civil procedure from jurisdiction to jurisdiction. We do these cases throughout the United States. That's probably the main reason. As you probably know, the damages profile for Title VII isn't that beneficial to the plaintiff. 

 

But you can always bring a Title VII claim in conjunction with the state law claim equivalent, which often allows you to claim extra categories of damages, like punitive or emotional damages, things of that nature. I would say that the only reason we brought it in federal court is because we're more familiar with the federal rules of civil procedure than having to go into the Penn State system, the Pennsylvania State court system, where, if we brought a Title VII claim, they'd just remove it anyway, right?

 

William E. Trachman:  Interesting. Well, I'm curious about your reference to your friend who likes the baroque civil procedure rules in state court.  Does that mean they were written in the Baroque period? Or what does it mean, in terms of this?

 

Michael Thad Allen:  Well, we have a fact pleading in Connecticut, not just notice pleading. And then there's a three-stage process to every motion to dismiss, which involves lots of bells and whistles and magic words. And so, things like that. He especially likes it if he has a defense attorney on the other side who comes from some big firm out of state. Because they can just be guaranteed not to — how can they — know the intricacies of the civil procedure in Connecticut like he will. So, he just delights in that, persecuting them and costing their clients all sorts of money until they come to the table, because he's able to walk them into brick walls and things like that, trap them in a crazy maze of civil motions, things of that nature.

 

William E. Trachman:  Another strategic question from our next Q&A. "Why not at least try on the First Amendment claim with an amended complaint, just to see if you could get over the threshold and plead on the facts?"

 

Michael Thad Allen:  Yeah. I mean, it's an excellent question. And it really has to do with litigation strategy in any situation. First you go and try to figure out what the law is. And you know what your facts are. But you also have to make it a strategic decision, if you're going to do things like waste your client's resources, irritate the judge. And what are the chances of success?

 

All of those things have to go into any time when you decide to -- sometimes, a judge will give you a motion to dismiss, which actually provides you a roadmap to what you need to say in the complaint, if you want to amend it. We did not get that here. It's very curious. In the decision itself, the memorandum of decision doesn't dismiss the First Amendment claim with prejudice. But she issued a separate ruling which dismissed it with prejudice.

 

William E. Trachman:  I don't follow. Why?

 

Michael Thad Allen:  So, there was an order, which is just, basically, a paragraph long, that says "This claim is dismissed. This one's not. This one is." And then there's her memorandum of decision. So, in the memorandum of decision — which is all the reasoning that goes into it, which is 23 pages long, and very well-reasoned — it didn't say, "this claim was dismissed with prejudice." But when I looked at the order, which my opposing counsel was happy to point out to me, it had been dismissed with prejudice.

 

So, then my task is even greater. I'm not just amending. I have to get her to change her mind about dismissing it with prejudice. And I think anyone in that situation has to consider whether they -- given that we got a ruling which I thought was good for us, whether I wanted to go and potentially maybe make my judge mad. So that's something that I think a lot of litigators will recognize as a difficult decision that you have to make in consultation with your client.

 

William E. Trachman:  The next question is not really a question. It's a comment. I think you may have referred to the murder of George Floyd. And this person says, "Oh, it wasn't a murder. He died of a fentanyl overdose." But let me turn this into a question, which is that Zack didn't make a comment about the underlying issue involving George Floyd as part of this training. It was about the materials that he was being asked to review and teach.

 

Michael Thad Allen:  With George Floyd, what I mean is after May, June --

 

William E. Trachman:  Oh, hi, Micheal.  We're having some technical issues with hearing you.

 

Michael Thad Allen:  -- 2020, all of this stuff. You just froze. Can you hear me? Now you're back.

 

William E. Trachman:  Yeah. Better.

 

Michael Thad Allen:  Seeing my internet connection is unstable, so if you lose me just tell me. What did you hear and what did not hear?

 

William E. Trachman:  Well, something about George Floyd, and you were --

 

Michael Thad Allen:  Yeah. So, I think George Floyd was -- he was killed in, wasn't it, May 21 of 2020?  Right during the whole COVID era. After that, all of this stuff was ratcheted up to a fever pitch on campuses throughout the United States. I don't think there's any question about that. So, if anyone's seen the movie Spinal Tap, everything was turned up to eleven. That's just a fact. I don't want to get into my view.

 

Having watched some of the footage, I do believe George Floyd was murdered. And he was found to have been murdered by a court of law. And I don't think Zack would dispute that. I think, like most Americans, he was horrified at what happened in Minneapolis, and horrified by many of the events that happened thereafter. That doesn't provide an excuse to, then, implement a bunch of racist training and sort of mandatory groupthink like we are alleging happened at Penn State. 

 

William E. Trachman:  The next question is related to the discussion about remedies and damages. And this questioner says, "Why aren't you discussing the availability of attorney's fees and the possibility of a fee-shifting award, if you do a lot of work on the case, and then, at the end of the day, you prevail?"

 

Michael Thad Allen:  Well, I think, as you probably know from doing this, there are fee-shifters, I think both in the state statute and under Section 1988. Those aren't considered damages in our legal system, which is something we always have to explain to clients, because they don't get it at all. If I have to shell out -- a full-blown lawsuit can cost incredible sums of money. And they sure, as well, experience it as damages to their pocketbook. But that's considered costs and fees as a separate category from damages flowing from the actual legal harm itself that was done to your client. That's the only reason I didn't mention it.

 

      I would say that, in addition to the non-profits backing these cases, that's one of the only reasons that these cases can be brought, especially in the academic context where I've had clients in the academic context where you can get them two, three years of salary, and it still is less than litigation costs.

 

William E. Trachman:  Yeah. So, someone asked, was there a foundation backing you here, and what was the name of it, if they wanted to support the foundation?

 

Michael Thad Allen:  Yes. I'm happy to mention them. I'm a really big fan of theirs, Foundation Against Intolerance and Racism, which magically has the acronym FAIR, F-A-I-R. I'm sure that was just an accident. But they're called FAIR. They're run by a very dynamic director named Monica Harris, who is located out in Montana. And what I like about them -- let me say this about the complaint, because this is directly relevant to FAIR's mission. If anyone has read the complaint in De Piero, or some of their complaints, they are written from a universalist perspective.

 

Because what, to me, is the most offensive about these doctrines of white privilege, white fragility and so forth and so on, is they stereotype black people, or anyone who's not white, in the starkest terms imaginable. It's almost as if you turned back the clock to real 19^th century racists, real 19^th century colonialists. But wherever a 19^th century racist said, "Black people are too lazy. They can't do math. They're incapable of reason. They're more community focused. They're not able to come to work on time," those were all negative things. Now, under this white fragility ideology, those are considered positive things that we have to, somehow, celebrate. 

 

I think that's incredibly demeaning. And Tema Okun I think her name is, who's an academic scholar who's published on some of these things -- it's incredibly demeaning to black people. Trading in these kinds of stereotypes in the name of somehow righting historical wrongs by punishing white people in the present somehow uplifts black people, in the name of these same stereotypes, seems to me just not only ridiculous but deeply, deeply offensive. And that's really where FAIR lives. They want what they call a pro-human perspective. But I would simply call it either a civil rights or a universal human rights perspective. That's what they've been promoting.

 

And, of course, given that these are the times in which we live, they're attacked as some kind of right-wing conspiracy for having the incredible bad judgment to support universal civil rights. It's almost clownish. There was a petition issued right after we sued Penn State. But, let me do this. You can probably tell I was a former academic because I can't shut up, and I'm very discursive. But after we sued Penn State in the De Piero case, a petition went out, including announcements throughout the whole university to get in touch with the emotional trauma-informed, I forget, like, mental health resources. Because they've learned that the university had been sued. 

 

That's enough, I guess, at Penn State, to send everyone running to the store to grab a box of adult diapers or something. At any rate, the petition was signed by hundreds of Penn State faculty and some administrators decrying FAIR, in particular, and some conspiratorial organization that was backed by dark money or some such thing. I forget how it was phrased. But it characterized the lawsuit and the non-profit that backed it as sort of the nefarious forces of the right wing, which I don't take FAIR that way at all. I think many people at FAIR would have found themselves ideologically homeless in the contemporary moment. But they maintain a rigorous focus on a universalist perspective of civil and human rights.

 

William E. Trachman:  We have one more question in the queue, so we have a few more minutes. If you have a question, go ahead and drop it in the Q&A box. This next question was probably for both of us. "Can you please comment on this decision, vis-a-vis the Young case in Colorado, including the Tenth Circuit affirmation, unfortunately, on Monday, of the dismissal." I'll just add that the Tenth Circuit affirmed primarily on the basis that although the materials were grossly offensive and certainly made sweeping characterizations about white people that my complaint had not adequately demonstrated effect on the workplace.

 

So, this was a prison setting. We said there was a culture of fear and distrust that was especially dangerous. But we did not articulate that anyone actually had been hurt, or that people couldn't, literally, function in the prison, such that prisoners were escaping, or anything like that.  So we didn't adequately demonstrate that effect. Do you want to talk through about the differences between that, my case, and your case?

 

Michael Thad Allen:  I don't, particularly, because I'm not that familiar with it, Will. And that's something maybe you and I can talk about. Or maybe you're more in a position to answer that question. I would say, in terms of our case, I think it's very different when this is used as the basis for disciplinary action against the plaintiff, which it was in this case. Now, he wasn't fired. Unlike the Tabia Lee case in California, he wasn't fired. But the disciplinary issue for basically asking questions in a teacher training session, in, I should add, a polite way, was classified as a sanction under Penn State's policy.

 

And so, that's where we would go with that. I also think it kind of -- I don't want to make any judges mad out there, but you have to wonder if they've ever worked in an institution in a subordinate position in their lives, when they issue opinions that state things like, "I don't see how this could chill protected expression," when all you do is ask questions at a teacher training session and all of a sudden, you're put under investigation, which could last many months. You're sanctioned, even though they don't take your job away, things that fall far short of firing people or even of the constructive discharge sort of scenario. I think it just beggars credulity to think that that is not chilling free speech, in fact, in these institutions, that have a right, at a state university, to protect it.

 

William E. Trachman:  Well, I will say that in the Young, the Tenth Circuit, opinion that was issued on Monday, they do mention De Piero and also a Pacific Legal Foundation case in Washington State that both did survive a motion to dismiss. So, clearly, this is a thing that's out there. And it's a viable claim, depending on how you plead it. So that was, at least, good news, I thought. Well, let me offer you a chance to offer any closing thoughts — that's the end of our questions — and if you want to talk through any of the themes or narratives that we've discussed here today, and leave us on a high note, maybe a positive note for the future. 

 

Michael Thad Allen:  Well, I don't know, now. I'm never on a high note when I'm heading into the day-to-day grind of discovery, which is where we are in the De Peiro case. I think we know what we have to prove. And we're now going to go out and try to get the evidence to prove it. So, I don't know what else to say. Although I hope you will wish us luck, and maybe you look into FAIR. They are really a good organization, and, also, just repeat what I said earlier about FedSoc. I've always admired what you guys do. And, as someone who's never voted for a republican presidential candidate in my life, I've always enjoyed the contributions of The Federalist Society, both in law school and after.

 

William E. Trachman:  Well, let me just say that we're a non-partisan organization. So those two things totally disconnected. But, with that, let me turn it over to --

 

Michael Thad Allen:  I didn't say you weren't.  I'm just saying, I'm just trying to put my cards on the table. 

 

William E. Trachman:  Got it.  Thank you. Emily.

 

Emily Manning:  On behalf of The Federalist Society, thank you both for joining us for this great discussion today. Thank you also to our audience, for joining us. We greatly appreciate your participation. Check out our website, FedSoc.org, or follow us on all major social media platforms @fedsoc to stay up to date with announcements and upcoming webinars. Thank you once more for tuning in.  And we are adjourned.