Litigation Update: Gerber v. Ohio Northern University

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Academic freedom and free speech at colleges and universities are at the center of ongoing litigation in Gerber v. Ohio Northern University.

In April 2023, Dr. Scott Gerber was abruptly removed from his law class by school security and brought to the dean's office. Dr. Gerber was then told by Dean Charles H. Rose III that he must resign or face termination proceedings. During his time teaching, he had been a long-standing critic of the University's use of race, sex, and ethnicity factors in hiring and student admissions. He refused to resign and the University soon commenced termination proceedings against him. Dr. Gerber was not told what he was accused of doing, despite his contractual right as a tenured faculty member to be informed with “reasonable particularity” of the accusations against him. Hardin County, Ohio Court of Common Pleas issued a temporary restraining order against ONU, requiring them to notify Dr. Gerber of what he was alleged to have done. At the hearing, the University allegedly failed to give Dr. Gerber a fair hearing as they brought forward new accusations and denied Dr. Gerber his contractual right to interview witnesses.

Dr. Gerber, who is represented by the America First Legal Foundation, has now filed suit against Ohio Northern University to restore his reputation, regain his employment, and secure compensation for the actions of the University.

Join us for a Litigation Update on Gerber v. Ohio Northern University with Ben Flowers, one of Dr. Gerber's attorneys and a Partner at Ashbrook Byrne Kresge, moderated by Dan Morenoff, Executive Director at American Civil Rights Project.


Benjamin M. Flowers, Partner, Ashbrook Byrne Kresge LLC

Moderator: Dan Morenoff, Executive Director, American Civil Rights Project; Adjunct Fellow, Manhattan Institute


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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



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 Gerber v. Ohio Northern University. We're joined today by Benjamin M. Flowers, partner at Ashbrook Byrne Kresge. And our moderator today is Dan Morenoff, Executive Director at the American Civil Rights Project, and an Adjunct Fellow at the Manhattan Institute. If you'd like to learn more about today's speakers, their full bios can be viewed on our website, 


      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 tuning in today. And Dan, the floor is yours.


Dan Morenoff:  Thank you, Emily. I appreciate it. I guess I should briefly introduce Ben, because he's really the one who's going to be talking. Although, let me also just say we're glad you're here. We hope you find this interesting. We do. Ben is a graduate of the Ohio State University and University of Chicago Law School, former clerk to Ninth Circuit Judge Ikuta and Justice Scalia, a blessed memory. He was Ohio's tenth solicitor general, and, as Emily mentioned, currently a partner at Ashbrook Byrne Kresge. 


Benjamin M. Flowers:  That's right.


Dan Morenoff:  Look, we're here because, Ben, along with America First Legal, you have a case that we thought our audience should know more about: Scott Gerber v. Ohio Northern University and Ohio Northern University Board of Trustees. There is a lot going on in this case. Maybe we should start here. Can you tell me a little bit about Professor Gerber's background? Who are we talking about?


Benjamin M. Flowers:  Well, let me first say I'm thrilled to be here. Thank you for having me. As you mentioned, I'm the one speaking today. But I am far from the only attorney on this case. So, my partner Julie Byrne is intimately involved, and then, as you mentioned, America First Legal. This is really their case that we're partnering with them on. And when I left the SG shop, I wanted to go somewhere where I could build a private practice but also keep doing a lot of the work, the public cause sort of work that I did as SG.


And getting to work with America First Legal on those sorts of cases, like this one, has really been a blessing. So, I did want to make sure that I emphasized how much involvement they have with this, and how great they've been. Remind me, the question exactly, was it maybe a little bit about Dr. Gerber?


Dan Morenoff:  I thought a good place to start might be to just tell us about Scott Gerber. Who is Professor Gerber? What's his story?


Benjamin M. Flowers:  Sure. Dr. Gerber is a very accomplished scholar. I think he would call himself a libertarian, definitely on the right side of the spectrum, particularly among American law schools, but an incredibly accomplished and really impressive legal scholar. He does write constitutional theory, sort of coined the phrase "liberal originalism," which I think you might associate with Justice Thomas's view that the Declaration of Independence and the founding principles can inform the proper interpretation of the Constitution. So, he's written at length about that and other issues, actually written about anti-discrimination issues which is kind of funny, given the context of this case, which we'll get to. 


Dan Morenoff:  Sure.


Benjamin M. Flowers:  But he's also a historian. In taking on this case, I've had a chance to look at some of his work. And he's done a lot of really impressive research into judicial independence, in how it came to be, early in the American states and colonies, so, really, one of the maybe all-too-rare professors nowadays who teach at a law school and actually are interested in law and legal history. And, as you'll hear, he is currently out of a job. So, if you know of a law school that's looking for an accomplished scholar, you should email me, and I can let him know. And maybe we can get that situation fixed. 


Dan Morenoff:  And you mentioned, in particular, that, well, we know he was a professor, and he was also teaching law. Are there any good metrics we have for Professor Gerber as a teacher?


Benjamin M. Flowers:  He won teaching awards. I know that. And this is all personal experience, so it's not something I can point you to and give you a particular page and a record, I guess, where there's evidence of this, but very well respected by students. In the aftermath of this case, he had students defending him. I know he worked with them to help them get published, and some have, recently. So, I've come to know him. And he's just very dedicated to the teaching of law, and the preparation of students to go become good lawyers and maybe even good scholars. So, that's my two cents on that.


Dan Morenoff:  Sure. And I know a moment ago you were joking about the record, whether you could point at it. Just to get this entirely clear at the front end and to explain what I think might be some choice of tense issues --


Benjamin M. Flowers:  Yeah.


Dan Morenoff:  -- as we're discussing the case, what stage of litigation is the case currently in?


Benjamin M. Flowers:  So, actually, just today, the other side filed their reply in support of a motion to dismiss, or partial motion to dismiss.  So, pretty early on in the case, we filed a second amended complaint when we became involved with America First. The complaint was filed in January, so we're in discovery. We're doing the motions to dismiss. Trial is currently scheduled for September with dispositive motions due at the end of May. So those who are interested and think they might want to do an amicus brief or something, those deadlines are worth keeping in mind.


      And you mentioned choices of tense and things. Since we're still at the pleading stage, I don't want to say anything that will jeopardize the case, or to overclaim. So, I'll try to just stick to the allegations and what we're alleging happened. But I'm confident that we'll --


Dan Morenoff:  That's there's something here?


Benjamin M. Flowers:  [inaudible 00:06:52] -- job for Scott.


Dan Morenoff:  No, please. Okay, and, also, having read through that pleading, I certainly haven't yet read an answer. Can you tell us the procedural backstory here? Because that's also kind of complicated. Like, what had happened before the filing of the instant litigation?


Benjamin M. Flowers:  If you read our complaint, you'll see we allege that he was, on April 14, brought to the dean's office by security — with the aid of police presence, at the law school, after he finished teaching a class — brought to the dean's office, where the dean informed him that he was being, effectively, given the choice to either resign or face removal proceedings. He did not resign. They initiated these proceedings. But neither the dean nor the school was telling Dr. Gerber precisely what he was accused of having done. There were sort of vague allegations of lack of collegiality, but nothing specific. 


And as the lawyers on this call know, it's hard to defend yourself against accusations when you don't know what the accusations are. So, nonetheless, they went forward with the hearing, or tried to, and sent him, effectively, an email with the statement of grounds for dismissal. That statement of grounds for dismissal, which I think was in June, still did not give specifics about what he was accused of having done. And he was given mere days to prepare witnesses — again, witnesses to rebut allegations that didn't put him on notice of what he was being accused of — and to get ready for a hearing.


So, at that point, Dr. Gerber, who was then represented by different counsel, brought a lawsuit — and it's the current suit — but filed suit in the Harbin County Court of Common Pleas in Ohio, and sought a TRO and, eventually, a preliminary injunction. The court granted a TRO to forestall the hearing and eventually ordered that Ohio Northern provide him with a bill of particulars that would state what he was accused of having done, and the documents on which they were relying, and things like that, so he could defend himself.


So, with that in hand, the court did allow the TRO to expire and let a disciplinary hearing before a five-member faculty panel go forward last August. Despite giving the bill of particulars, we allege that they deviated from that bill of particulars, and actually brought up other allegations that he wasn't put on notice of, and that those allegations formed a basis for his removal. And we can come to that later.


But the other thing I should note is, while this was happening, the case had gotten some press. And Ohio Northern issued, effectively, a press release, in June, that, we say, can only be fairly read to accuse Dr. Gerber of being a threat to the safety of the campus community. Now, that wasn't alleged as a basis for his removal. He's not a safety threat, never has been. And, in fact, in their motion to dismiss, they deny that the thing we point to actually calls him a safety threat. 


But that gave rise to what we regard as defamation. We've alleged a defamation claim based on that, and a false light claim based on being hauled out of class by security in the presence of students. So, he got to the hearing. He had the hearing. They eventually found him guilty as charged and recommended his dismissal in September. And the board of trustees ultimately accepted that and, in October, formally terminated his employment. And, as I said, we got involved months later, in December, with America First, and filed a second amended complaint.


Dan Morenoff:  Okay, I just want to make sure that people caught a couple of details that were, I think, interspersed there.


Benjamin M. Flowers:  Sure.


Dan Morenoff:  You said that he was hauled down to the dean's office by armed guards or police or whoever it was. I think, later on, you mentioned that he was actually pulled out of class. Is that right?


Benjamin M. Flowers:  There's a dispute about whether it was during the class or after class ended. But, in any event, security guards came to retrieve him from the classroom area and bring him to Dean Rose, or at least that's what we're alleging. And Ada Police were on hand while that was happening.  And Dr. Gerber has spoken out about how it was terrifying because you have police there, with guns and everything else, bringing you to the dean's office. And I think anyone put in that situation would be understandably frightened, particularly when you don't, upon reaching the dean's office, learn what you're accused of having done.


Dan Morenoff:  Sure. And let me go back for one additional detail. Was there any history from before that incident that might shed light on why he was being treated in this way?


Benjamin M. Flowers:  At that point, no. I think there were suspicions.


Dan Morenoff:  I don't mean what he might have been accused of.


Benjamin M. Flowers:  Oh, I see.  Yeah.


Dan Morenoff:  But just, did he have a history of interactions with the administration that may be relevant?


Benjamin M. Flowers:  Yeah. I think that's certainly true. We allege, the second count is that he was terminated for objecting to illegal hiring practices. So, Dr. Gerber is not just a "go along to get along" guy. He is someone who is going to speak up for what he believes in. When he sees wrongdoing, when he sees ethical lapses, he is going to raise those. And so, he believed — based, in part, on the answers to an ABA questionnaire that are attached to our complaint where the university says it considers diversity in making hiring decisions — that the university was unlawfully considering race, sex, and ethnicity in deciding whom to hire, and raised objections to this.


And that's in addition to scholarship addressing the legal perils of racial discrimination, plus the fact that he had lodged complaints with government agencies about these practices and had been outspoken on the issue, just in the general press. He had written op-eds and things of that nature. I think many of the people on this call probably know, they have seen from schools around the country, that that is not an orthodox viewpoint, shall we say, in legal academia.


I think it's actually quite common in the rest of the world that we shouldn't treat people differently based on immutable traits, in terms of hiring, anyway. But on campus, with the current DEI push that you see all around the country, that is not a popular view. And so, we'll get to the hiring decision later. But we allege quite clearly that not only was he fired for objecting to illegal hiring practices, but, actually, that the hearing committee, when it issued its report, confirmed that that was one of the bases for his termination.


Dan Morenoff:  Okay. Are there any other facts that the audience should know, as to how this all played out through y'all's entry?


Benjamin M. Flowers:  No, I think you got the gist. I guess there's several categories of cases. There's the defamation point, which I mentioned earlier, which, I would include false light in that. There's the Ohio Revised Code 4112.02 claim. That's the retaliation claim based on objecting to illegal hiring. There's that point. And then there's sort of a just constant breach of contract issue. So, we mentioned some of the breaches. They were required by the contract to give him notice of the wrongdoing. They didn't do that. They were forced to.


But, even once they did, through the bill of particulars, they departed from that as they proceeded to the hearing. In addition to that, the contract guarantees a right — at least, within reason — to cross-examine witnesses and to confront the witnesses against you, yet the witnesses appeared by video at his hearing, some of them. So, just a litany of problems. That's in addition to conflicts of interest.


So, we allege, for example, that the five-member committee was advised by an attorney who reported to the president herself. The problem with that is that the president is actually the prosecutor in these cases. So it would be like having a criminal court in which the judge is [inaudible 00:16:08] an ex parte basis by a lawyer for the prosecutor's office, even if it's not the lawyer representing the prosecutor.


Dan Morenoff:  Are there any other claims here?


Benjamin M. Flowers:  We have, I believe it's eight. But we went through the breach of contract, of course.


Dan Morenoff:  Right.


Benjamin M. Flowers:  The retaliation, wrongful termination claim --


Dan Morenoff:  Okay.


Benjamin M. Flowers: -- defamation, false light, intentional infliction of emotional distress. And then there were conversion and replevin as well, because, upon his leaving, his property was still in the office. And we allege that they unlawfully retained that property by denying his reasonable request to come and get it, effectively.


Dan Morenoff:  And have they cured that? Or is that still the case?


Benjamin M. Flowers:  I won't comment on that, just because that's not public.


Dan Morenoff:  Okay. Fair enough.


Benjamin M. Flowers:  But one of the allegations, yeah.


Dan Morenoff:  Okay. So, if that's what's in this litigation, as a whole, why is it important? Why should people care?


Benjamin M. Flowers:  I think people should care for a variety of reasons. One, if you go back, if you remember what I said at the outset of what he was warned about. There was this collegiality issue.


Dan Morenoff:  Yeah.


Benjamin M. Flowers:  Now, we don't actually think that was the real basis for the termination. But even assume it was, for the sake of argument. One thing listeners might take from this case is the danger of these collegiality requirements in academia. The squeaky wheel can often be regarded as not being sufficiently collegial. I don't have to spell out what the issues are. There are all kinds of issues that, on campuses around the country, if you take certain positions, you will be regarded as engaging in abusive conduct, almost. There are lines of inquiry that are completely off-limits.


And it's really hurt, not only the schools, but the ability of policymakers to rely on research they're getting from even scientists. Because if you know, going in, that there's only one result that you'll be allowed to publish, then it's hard to know what to do with research confirming what is already the popular view. And these collegiality clauses can be used to significantly imperil, really, free discourse on university campuses.


      Beyond that, there's also, of course, the allegation that he was fired for objecting to illegal hiring. In light of the recent trend, call it, in Supreme Court jurisprudence, there are more opportunities for attorneys and for clients to object to discrimination in hiring, to giving people a leg up, or punishing them, based on their race or their sex or their ethnicity or whatever else. Whatever you think of Bostock, Bostock says that it's a Title VII violation to give someone anything that they wouldn't have gotten, or any sort of treatment they wouldn't have gotten, but for sex. And the same logic applies to race and everything else.


So, that sure seems, on any fair reading, in my view, to mean that considering these traits at all in the hiring process is a problem. But, if businesses are allowed to threaten retaliation against individuals who engage in that conduct, it will be much, much harder to right those wrongs, because people will be afraid to blow the whistle. So that's another important component of that. And then, I think we've seen recently at Harvard — and other things have gone on — that universities are almost coming to regard themselves as sort of a law unto themselves, that they can act in any way they want without having to worry about the consequences.


I think some are learning the hard way, from plagiarism research and everything else, that there are plenty of things the public can do when it's upset. But, in any event, I think it is another case where, in our view, the university is flouting the law. And individuals who work for the university are ignoring the law. And it's important to make sure that they not be permitted to get away with that.


Dan Morenoff:  Sure. This may be a little bit repetitive, but, at best, a collegiality standard is an empty standard of, "do your peers think you're nice?" at best. It, obviously, could be strategically wielded against people to take that mid-Western nice requirement and turn it into a sword to destroy people that just disagree on substance. It seems like that's particularly problematic to have as a rule for law professors. In my experience, law professors, if they're doing their job, are confrontational. So, how on earth can that be the standard for firing a tenured law professor?


Benjamin M. Flowers:  And I think that's part of the problem. And what you were saying, I'm just sort of restating it. But it's not an allegation —lack of collegiality — that's really falsifiable, in most cases. Now, there may be extreme cases where everyone can agree. But, generally speaking, that's something that, whenever someone's unhappy with the way someone else is carrying themselves, they can level that accusation. And when you have this sort of kangaroo court process that allows people to punish their adversaries, it's pretty easy to imagine how that can be used to punish people who take unpopular positions.


I know the American Association of University Professors, and other groups, pretty outspoken against these collegiality requirements. I think I've seen George Leef, maybe, on National Review, write about this. I don't know how common they are, frankly, but I know this is not unique. So, it's something that people should certainly be interested in, and concerned about. Because allowing universities to point to a kind of vacuous requirement like that is really a threat to academic freedom.


And, again, academic freedom isn't important just for the professors, or just for the universities, or just for the students. When legislators make laws, when administrators consider policies, they want to be able to look to research on various subjects. And if entire lines of inquiry are foreclosed and it won't be possible to get reliable research on that, it harms all of the public, not just those in schools. 


Dan Morenoff:  But in terms of the systematic danger that we're talking about — I know these are not your case, but just as someone who follows academia loosely — it seems like there have been a series of academics against whom, I'll go ahead and describe them — though I won't put you on the spot there — as vacuous claims to justify suspensions, or efforts to revoke tenure, whether you're talking about someone like Amy Wax, basically, for saying impolite things about race-based admissions, or whether you're talking about someone like the Harvard economist Roland Fryer, who had simply — as you were more or less discussing — just researched what is the statistical regularity with which force is used against perps by police officers.


And when he published findings the university didn't like, they chose to suspend him, investigate him, pursue — I won't call it parallel — but pursue what options they had before eventually just putting him back. It seems like all of that matters, especially when coupled with what at least reads from the complaint to be pretty clear defamation, untied to any allegation the school ever actually made in its kangaroo court. 


Benjamin M. Flowers:  I think you noted the trend. And what's also interesting about the trend you noticed is that it tends to -- although right-leaning members of university faculties are a very small percentage of those faculties, they sure seem to make up a disproportionate percentage of these sorts of incidents. And that, in and of itself, I think, can be indicative, and goes to why people really should care about this case. 


And I should note — I started by talking about America First — I should note that, if you're aware of people facing that sort of situation, that's one group to reach out to, because they're very active in this space, litigating suits around the country where people are railroaded for objecting to illegal practices. So, Gerber's is one case they're involved in. But there are others as well.


Dan Morenoff:  Okay. Let me pull out another thread here. You mentioned, I think you said there were eight claims. Am I right? They're all state law claims?


Benjamin M. Flowers:  Correct, yeah.


Dan Morenoff:  Is that important, in and of itself?


Benjamin M. Flowers:  So, yeah, I think it is. I think what people need to remember is that — and I know Judge Sutton's probably been on this very webinar, urging the importance of appealing to state law — but in interpreting state law, state courts are, of course, the final word, the state supreme court. And that means that you have the ability, through state law, to bring claims that maybe even the U.S. Supreme Court, interpreting federal law, or applying state law -- you're not even going to get to the Supreme Court on a diversity case, probably, where they're applying state law.


But, in terms of interpreting their own law, they might not buy it. So there's much more opportunity to make useful doctrine in the state courts. And the virtue of that is the states can really serve as laboratories of, not so much democracy -- I guess it is, actually, because they're interpreting laws that pass democratically, but also common law suits. They can serve as testing grounds for ideas.


And if large states, like Ohio and Texas, for example, are adopting certain theories and the sky doesn't fall, the economy doesn't crash, everything continues to go as one would hope, that's evidence for the court that you're onto something. And one good example of a context in which this happened is the Chevron context. So, if you listened to the argument in the Loper Bright case this term, Justice Kavanaugh specifically asked SG Prelogar about the fact that many states have abandoned their Chevron equivalents. And I'm happy to say I was involved in the case where Ohio got rid of its equivalent.


But, in any event, in those states, which are geographically and politically diverse, the world's continued to turn, nothing bad has happened. The government still is able to function. And that serves as reassurance to the Supreme Court that they can abandon that case without creating all kinds of undesirable consequences. And so, the same logic applies in the context of, really, any type of claim. And so, pursuing things through state law allows you to take advantage of that divided federal system we have.


Dan Morenoff:  Sure. And there are, in many states, non-discrimination laws on the books that are at least as generous as federal law, even if people -- I think lots of litigators think, first and foremost, of the federal tool kit as what's out there. Just to take one example, I know that New York has a human rights law which, by its terms, expressly, as passed by the legislature, is intended to be more protective than federal law. Or I think the same is even true of the New Jersey law against discrimination, or those are some of the most aggressive. But there are ones in California. There are ones in Massachusetts. There are ones in lots of states. Obviously, buyer beware. Go find what those statutes actually say, rather than relying on my quick shorthand summary.


Benjamin M. Flowers:  Yeah. And I think there are other advantages to state court as well. Number one, not everywhere, but oftentimes, cases progress faster there than they do in federal court, so you can get relief for your client more quickly. Sometimes, by avoiding removal, by being in state court, you have a jury pool that's more truly representative than you might get in some gigantic district that's bringing people in from all over. So, there are many reasons that lawyers can legitimately choose to pursue just state law claims. I'm not going to comment on precisely why we made the choice we did in this case.


Dan Morenoff:  Of course.


Benjamin M. Flowers:   But, in general, I think state law is an underutilized tool. So, if I can come and preach the gospel on that a little bit, I'm happy to do so.


Dan Morenoff:  Well, absolutely. Forgive me. With that, I know we've got at least a couple of questions with the audience. Let me throw a couple of those at you. Our first, submitted anonymously, asks, "Did the university force faculty members to take DEI training or classes?"


Benjamin M. Flowers:   I actually don't know the answer to that. We don't allege that. But I know there was a DEI policy, so it could be. I just don't want to speculate.


Dan Morenoff:  Sure. And we've got one other so far. If anyone does have additional audience questions, by all means, feel free to submit them. The remaining one that I'm seeing reads — oh, and it's from Sarah Reese — "Is there anything in his performance reviews or student feedback that the university claims support its actions?"


Benjamin M. Flowers:  We're still, I think, trying to determine what, exactly, they're going to say to support the actions. That's part of the problem with the lack of notice.


Dan Morenoff:  Sure.


Benjamin M. Flowers:  So, I want to be careful to overclaim on that. One thing I'm confident saying, though, is that, as far as I know, right now, they're not pointing to anything based on interactions with students or anything like that. So, in terms of teaching ability, that sort of thing, I don't think anyone questions that.


Dan Morenoff:  Sure, and, as you mentioned earlier, he had received teaching awards --


Benjamin M. Flowers:  Right.


Dan Morenoff:  -- which I assume, without knowing, were voted on by students.


Benjamin M. Flowers:  Teaching awards and awards for his scholarship. He's been a professor at Brown, and --


Dan Morenoff:  Right, which aren't -- so that's both a professional check and a market check.


Benjamin M. Flowers:  Yeah.  Yeah, exactly. 


Dan Morenoff:  We do have an anonymous, not a question, as it's parsed. "A few of Professor Gerber's students are here watching, who were in the con law class the day he was escorted out. We would love to have you pass on to him how wonderful a professor he is, how greatly we miss him," which, okay, we obviously don't know who it is, but noted.


Benjamin M. Flowers:  I got goosebumps hearing that. Well, hello, our friends in Ada, Ohio, and down in the Columbus area. Good to have you with us. I'm sure Dr. Gerber is listening or will listen later. And I know that will mean a lot. But even for me, that's a very moving thing to say. I'm glad to hear that.


Dan Morenoff:  It is. I think that's what we've got so far. So, unless there are any -- oh, no. Hold on. There are more. I just hadn't paged down. We had a question, "Where will the jury pool be drawn from?" I don't know Ohio geography. I have no idea where this school even is.


Benjamin M. Flowers:  Yeah, Hardin County is northwest. I guess you could say the northwest part of the central part of the state. So, south of Toledo, northwest of Columbus.


Dan Morenoff:  Okay. And it's presumably the county pool. "While much of what I heard you say focuses on contract law, what are the more broad First Amendment claims?" Which I guess would also ask, have any been asserted?


Benjamin M. Flowers:  Right. So, I think there are First Amendment principles implicated, like the free speech clause. We didn't bring a First Amendment claim because Ohio Northern University, though its name might suggest otherwise, is not a state school. It is a private institution. And private institutions are not directly bound by the free speech clause.


Dan Morenoff:  Sure. No, that makes sense. And we've got one last, "Is there an internet source for viewing the pleadings, motions, and other filings in this case?"


Benjamin M. Flowers:  Yeah. So, the Hardin County Clerk of Court has a good website, or the Hardin County Common Pleas Court. If you Google that, you'll see there's an electronic docket. And it's really easy to use. And the case number is 2023 — so it was filed last year — 1107.


Dan Morenoff:  That's publicly available? That's not something that only lawyers can access?


Benjamin M. Flowers:   No, it's free. It's available to everyone. And, in Ohio, unlike in the federal system, we don't have to pay to see the public documents that make up our court records. So, some counties are better or worse at actually getting that stuff online. But Hardin County does a really good job. It's up quickly and very easy to access and figure out.


Dan Morenoff:  That's wonderful. Is there anything else you want to close with?


Benjamin M. Flowers:  No. I think I'd just say, first of all, thanks for having me. It's been a privilege to be on this case. I know America First feels the same way. If you're interested in helping with an amicus brief or something, certainly reach out to me. I'm happy to talk about how that might work.


And, like I said, I've come to really admire Dr. Gerber, not only as a scholar, but as a person. And I think you heard his students' testimony. So, if you think you have leads, or we can get this guy back in a classroom in front of students who obviously benefited quite a bit from him, please do reach out to me. Because I'd really like to make that happen.


Dan Morenoff:  Sure. And I just want to thank you for coming and telling us about this. I do think that this is an important case that people should follow and know more about. And I hope you'll keep us informed as it continues to develop.


Benjamin M. Flowers:  Absolutely. Thank you for having me.


Dan Morenoff:  Please, Emily.


Emily Manning:  On behalf of The Federalist Society, thank you all for joining us for this great discussion today. And thank you also to our audience for joining us. We greatly appreciate your participation. Check out our website,, 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. We are adjourned.