4/8/2014 update: Not entirely, but this new UO legal services policy, to be debated and voted on at the Senate meeting this Wednesday, will sure put a crimp in his style. Among other sensible and long overdue restraints on our chief attorney:
Prior to any decision to participate in litigation not directly involving the University as a party by filing an amicus curiae brief, the General Counsel shall notify the President of the Senate of the intention to do so.
Kudos to Gordon Sayre (English) and Tom Lininger (Law) for getting this done. Maybe Geller will react by firing off another email like this one?
Or this unlawyerly stupidity, which made it into the Oregonian?
4/2/2014: Randy Geller’s anti-free speech brief fails, OSU pays out $101K
In brief: UO paid our General Counsel to help write an anti-free speech brief to the SCOTUS. From the timing, it looks like President Gottfredson authorized this.
Back in 2009 OSU staff trashed the news boxes of a student publication called “The Liberty”. Liberty sued OSU over a First Amendment violation. The 9th circuit court said OSU should pay damages. OSU tried to appeal the case to the SCOTUS, and a group of other universities wrote an amicus brief, taking a firm first amendment stand: against free speech, and for the OSU administration. Our own Randy Geller joined in:
“… and the Nation.” Really? Administrators want the money and the power, but not the responsibility.
Say what you will about our Supreme Court, they’ve got a soft spot for most of those first 10 amendments. They rejected the argument that administrators shouldn’t be personally liable for civil rights violations at the universities they are paid to run, and refused to take the appeal. Apparently without comment. And as Betsy Hammond reports in the Oregonian, OSU has now settled for $1,000, plus $100,000 in legal fees. No word on how much of the time that Geller is supposed to be spending as General Counsel he wasted on this.
This isn’t the first time Randy has filed an amicus brief. The most recent was in favor of the (successful) efforts of Sharon Rudnick, Dave Frohnmayer, and HLGR’s efforts to get the state of Oregon to pay them $864,000 in legal fees over Sylviagate.
If there is one thing which demonstrates the UO not being aligned with shared governance and a departure from past ill-conceived policies and hires, it’s that Geller still has a job as General Counsel.
If the new Board wants to establish itself as the new broad minded and equitable institution they view themselves as, and aimed at collaboration with the true University and it’s future goals, they will relieve Geller from his post and find someone much more competent. Not a difficult choice.
but does this mean that President Gottfredson and potentially the UO Board could be personally liable for a free-speech violation? Does UO purchase insurance for them?
In terms of what I perceive the goal of this policy is; The language should probably be revised. If anyone is filing an amicus curiae brief, then chances are that the issue is one that is “directly involving the University.”
I have no position on this one way or the other. But, the language needs to be more clear for whatever the goal of this policy might be.
If the goal is simply to be notified…Then just say that: “Prior to filing any amicus curiae briefs, the General Counsel shall notify the President of the Senate of the intention to file an amicus curiae brief.”
Amicus curiae briefs are, by definition, not made by parties “directly” involved in the litigation. But, they may be “directly” effected by the outcome of the litigation. So, I would encourage the use of different language that is designed to accomplish whatever the intended goal of this policy might be.