The Volokh Conspiracy

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Free Speech

Claim that University Libeled Students and Coaches by Falsely Accusing Them of Blackface Skit Can Go Forward

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From Day v. California Lutheran Univ., decided by Judge Josephine Staton (C.D. Cal.) Aug. 30 but just posted on Westlaw (appeal pending):

In their FAC [First Amended Complaint], Plaintiffs allege that in January 2020, the Softball Team "held a team-bonding lip-sync event with makeup and costumes." Jane Does 1-5 decided to perform The Fresh Prince of Bel-Air theme song and "dress like 'dudes' in a 'Boy Band' with the style of Hip-Hop clothing worn by 'Boy Bands.'" They also "decided to add hats or wigs to hide their feminine hairstyles, and makeup to portray facial hair to make their faces appear more masculine." Two of the girls wore "dirty-blond 'Napoleon Dynamite' wigs." The lip-sync routines were observed by members of the Softball Team, as well as by Plaintiff Coaches Day, Gluckman, and Young. Plaintiffs note that Does 1-5 took part in the lip-sync routine and Does 6-24 did not. The Softball Team later "posted pictures and videos of said routine to their Team Instagram page."

Plaintiffs allege that Defendants Chris Kimball, then the President of CLU and Melissa Maxwell-Doherty, then CLU's Vice President of Mission and Identity, "viewed said pictures and confirmed with the Softball Team, their coaches, and their parents that said Softball Team members: a) were under the supervision of an African-American Softball coach; b) had makeup on their faces to resemble men's facial hair in the form of beard stubble and goatees; and c) were not engaged in any racially motivated activities."

However, Plaintiffs note that "[d]espite such confirmation, Defendants Kimball and Doherty publicly proclaimed to the entire Ventura County community and national press that: a) said conduct constituted 'Blackface'; b) Plaintiffs intentionally participated in and/or allowed 'comedic performances of 'blackness' by whites in exaggerated costumes and makeup'; c) CLU intended to 'call attention' to the event to the entire Ventura County community – not just the CLU community; and d) '[t]hose who are responsible will be held accountable.'" Plaintiffs further allege that "Defendants Kimball and Doherty in particular, allowed the Softball Team and their Coaches to be publicly shamed and harassed, placed in fear for their safety, be the subject of unabated racial slurs by other students in violation of CLU written policy, and to otherwise suffer lifelong injury to their mental health and reputations."

In the FAC, Plaintiffs detail the alleged harassment they received. For example, Plaintiffs allege that CLU sent two emails in February 2020 (on February 5 and February 10) to the CLU community that caused a tense environment on campus. The emails described, among other things, the alleged racist incidents occurring on campus, and used the phrase "Blackface" in apparent reference to one of the incidents that occurred on campus.

Plaintiffs contend that the February 10 email "inflamed racial passions and anger on the CLU campus to such a degree that the [Black Student Union] organized an unauthorized campus 'walk-out,' whereat they demanded the expulsion of the entire Softball Team for being racists." Plaintiffs allege that "[t]he toxic, volatile, and substantially racially-charged environment on campus Defendants created had become so pervasive and dangerous that the members of the Softball program were made to fear for their own personal safety and well-being." …

The court refused to dismiss plaintiffs' libel claim:

The Court … rejects Defendants' claim that the common interest privilege requires dismissal of Plaintiffs' defamation claims. Under California law, Civil Code Section 47(c) "extends a conditional privilege against defamation to communications made without malice on subjects of mutual interest." For purposes of assessing whether the common interest privilege applies, "malice has been defined as a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person." Here, Plaintiffs allege that the statements were made with malice because, among other things, "CLU and its agents perpetuated a false 'blackface' event, and otherwise completely mishandled said event in part to retaliate against Coach Day for reporting the potential Title IX violation." Plaintiffs have pleaded sufficient facts to support a reasonable inference that at least some of the statements at issue were offered in bad faith and with some awareness that they were not truthful.

For example, Defendant Kimball wrote in his February 5, 2020 email to CLU students that "two racist incidents … occurred in the last week," and "blackface and the N-word evoke white supremacy, anti-blackness and remind us that a violent, racist past is still with us today." In a February 7, 2020 meeting with the Softball Team and their parents and coaches, however, Defendant Kimball stated that he understood the Softball Team's claims that they were not racist and told them: "Just saying, in my heart, I believe that." Yet in his February 10, 2020 email, Defendant Kimball characterized the same conduct as "performances in which there were exaggerated characterizations of black people and culture" and defended CLU's use of the term "blackface" to refer to the performances. Taking these allegations as true and drawing reasonable inferences in Plaintiffs' favor, that Defendant Kimball knowingly misattributed reprehensible conduct to the Softball Team in his statements to the CLU community is plausible.

{Additionally, the Court notes that Defendants did not move to dismiss the defamation claims on the ground that they contain no provably false statement of fact ….}