Deconstructing the Harvard-Westlake 4.26.2005 Statement
Reader tip: There is an Archive for the HW articles.
Quick look at the 4.26.2005 Harvard-Westlake Press release.
Want to read between the lines? Of interest to plaintiffs and the media are the apparently contradictory statements in the release. It appears this release was not effectively coordinated with outside counsel as it contains a number of fatal admissions by the defendant.
Based soley on this information and the facts presented in the media in re the complaint, it appears defense knows they have no chance of summary judgment or qualified immunity.
At this point, defense is more concerned with defending the alumni funding streams than in effectively settling this case.
Of concern are the subsequent actions after the DA's decision was revisited.
The school appears to have the following litigation risks:
Nothing could be further from the truth. Harvard Westlake is not, contrary to the popular myth, somehow under the same rules in re academic freedom of the press. The private institution is recognized by the courts as being in a position to exercise editorial control.
It appears as though, despite the apparent stonewalling, defense didn't actually believe they would face public consequences for allegations of violations of civil rights or Title IX.
The following statements are merely an informal view of the matter and should not be construed as legal advice.
An Analysis
The full text of the schools 'release is highlighted in blue at the bottom of this note. This note breaks down each sentence and discusses the implications of the information.
Each sentence from the release is highlighted in blue; while the surrounding text are the added remarks and commentary.
Item 1
There is evidence of lack of management coordination during the discovery and pre-litigation phase.
Look closely at the URL for the press release. There is no number as in "Statement number 1" in the URL>
Rather, notice on the HW webpage that they have simply labeled in the URL "statement" without associating the statement with any name, sequence, or indexing schema.
This is noteworthy. Subsequent URLs from HW will require some sort of distinguishing element within the URL.
Because there is no such element in the current release, we presume that there is no formalized litigation-PR plan; nor a credible interface between management and the IT department on their media strategy.
Bluntly, it looks as though HW management has issued the statement without carefully consulting with counsel on an appropriate media strategy to support the litigation objectives.
It would be appropriate for the board to inquire into whether management at HW is engaging on an individual course detached from both the insurance company and counsel advice and planning.
Because the URL is missing this element, and the speediness of the release being issued, we doubt whether management has carefully orchestrated the overall media strategy with either counsel, the board, or the IT department.
This is somewhat surprising. Management at HW appears in the memo to create the perception that things are well under control, and that management is well on top of things. If this is true, why is there not a file plan and data archive element within the URL that would permit management to issue subsequent releases in a manner that distinguish them from the previous elements?
This suggests that the IT department is incorrectly assuming there will be no other statements; or that management simply hopes to issue a statement without any expectation that future statements be issued.
Statement from Harvard-Westlake School Regarding Lawsuit |
[Note: Dashed line removed from original for formatting on blog]
Item 2
The following sentence is curious.
From Headmaster Tom Hudnut: |
The statement is problematic is that it assumes that readers are not familiar with the situation.
In fact, the only reason readers would be reading the statement is if they've already heard about the lawsuit.
Rather, the statement appears to be geared more toward stemming the anticipated rush to the exits of alumni who would otherwise cancel their alumni-funding-support.
The sentence is also problematic in that it takes a very authoritarian-fatherly approach to information. This is at the heart of the problem at WH.
For it is when management implies that they have superior information [which they do not, as evidence by the decision to delegate the responses to the alleged allegations] that management got into this problem.
It remains to be explained by management why, despite the apparent numerous efforts of plaintiffs to amically settle this issue prior to filing the complaint with the Superior Court, why management is suddenly asking the public to believe that management retains this superior access to information.
Also, this sentence implies that future information will be available. This is problematic. The only information that will be available will be the information in depositions.
There is no reason to believe that management will provide any additional information. If this statement were to be believed, then there would be no reason to have a complaint.
Arguably, management is creating the impression that they have something of value that they plan to issue in the future.
Yet, we are talking about a historical event. So why, if the event has already occurred, is management suggesting that the public has to wait for additional information?
Is management saying that, despite the 'concern' for the plaintiff and the 'thorough" investigation, that the investigation was not complete and the requisite concern that would have reasonably been a catalyst for a thorough vetting of the facts was not done?
Thus, we remain puzzled as to what possible future assistance management could possibly provide in the form of a public press release.
Indeed, the only further discussion that will occur, besides the interrogatories and court testimony, will be the subsequent discussions over whether HW is the right place to send funding for either direct student education or alumni funding.
Item 3: Look who is not saying this
Counsel is prohibited from making future forecasts about the probability of litigation success. This is outside the bounds of appropriate counsel discussions.
Thus, we are not surprised, given the ABA's prohibition against attorneys making specific forecasts of the chances of litigation success, that it is the client that it issuing the statement.
How curious.
The school is certain that the suit will be found to be without merit, and we intend to defend it vigorously. |
What basis is there to believe that the suite is "without merit"? We hear nothing persuasive.
Rather, we are more are more persuaded that this statement too has not been carefully coordinated with outside counsel.
Take a look at the quote again. They said "be found to be without merit." That is not a legal term. The proper term is "dismissed."
But management has not said "dismissed," implying that management fully expects the court to carefully review the facts after the complaint has survived a motion to dismiss, and the defendants [Hudnut et al] have been unable to successfully argue that they are entitled to either qualified or full immunity.
Also, note what management is saying: "We intend to defend it vigorously. That makes no sense. You don't defend a lawsuit, you defend your argument.
So what is management actually hoping to accomplish:
If this is what management is implying, then they need to ensure that their statements are properly couched so as to not leave anyone with the impression that opposing counsel is acting in an unprofessional manner.
Rather, by saying "defend it," management is more likely thinking, "We want to defend our contention that Harvard Westlake remains a vaible place for students to attend school." When maagenemtn talks about "defending it," they appear to be more focused on "it" as in "the money from alumni" and "the repuation of the school."
It remains to be seen how far the actual events and the defense diverge.
Also, let us recall that there can be a cause of action for filing a frivolous complaint. Yet, it is the wise plaintiff counsel that has determined after carefully analysis that there remains the requisite legal foundation and sufficient body of admissible evidence to support affidavits required to support a complaint with the court.
Yet, we see nothing in the statement that suggests the complaint is frivolous.
Item 4
If management was confident of anything, they would have already filed a counter claim for filing a frivolous complaint.
Moreover, that management is this far into the discussion, and has yet to make any public overture of reconciliation suggest that management has yet to formalize a coherent strategy.
Also note the following statement implies "immediate actions". But this is contradictory to the above statement suggests that additional information would be forthcoming.
Surely, if the "immediate" actions proved fruitful, there would be no reason to leave alumni with the impression that new information would be forthcoming. Either the investigation was immediate and thorough and this is over and there is no need to wait for more information; or there is the expectation that there will be more information because the investigation was neither immediate nor through, but is continuing and growing more expansive.
This contention is supported by public statements that, despite apparent public denials to the contrary, that there was sufficient conduct to re-open the complaint the DA initially chose to dismiss.
In turn, that the US Attorney and FBI have jointly coordinated efforts to oversee the LAPD investigation gives us a point to pause with alarm. For it appears that despite the apparent management objective to suggest the investigation was immediate, that the investigation at a criminal level has now mushroomed.
How can something that was "immediately resolved" suddenly require the joint efforts by the US Attorney, DoJ, FBI, and local law enforcement?
Let us recall that it was DOJ and the FBI which were jointly reluctant to immediately coordinate their findings of abuse with the Senate Intelligence Committee in re abuses at Guantanamo. IT was only when it no longer was possible to keep the obvious out of the news, that the statements of the US Solicitor General have proven to be false and misleading.
Rather, because DoJ, the US Attorney, and the FBI have launched their forces into the firestorm, we can reasonably presume that there is a substantive allegation that warrants attention on par with the allegations of misconduct, negligence, failure to supervise that we saw on videos and still shots from both Guantanamo and Abu Ghraib.
We are very confident that the school, through its immediate actions to get to the root causes of this situation, came to a thoughtful and well-reasoned conclusion that the school environment was indeed safe for the student despite the inexcusable comments that were posted on the website. |
To suggest that the management conclusions were "thoughtful and well-reasoned" remain a matter for the court to decide, and not something for management to assert.
Again, we have nothing before us to suggest that the actions were thoughtful. If management was thoughtful, there would be no allegations that management appears to fear would survive summary judgment and destroy any defense of qualified immunity.
Moreover, if management's actions were "thoughtful" or "well reasoned" we wouldn't be sitting here with a complaint filed without any mention that the claims were frivolous.
Thus Hudnut's initial statement, however short, says far more than what any other public statement might from wise counsel. Thus Hudnut has committed a fatal error: Making public statements contrary to interests, thus permitting them to be entered into evidence.
The following is the school's response to the press release announcing the filing of the suit:
Statement from Harvard-Westlake School regarding Caplin v. Harvard-Westlake School |
Item 5
The following statement has been made without any reference to any document. We see no complaint number in the remarks, nor is there a copy of the complaint incorporated by reference.
Thus, the following statement, although it could be true, remains a "fact" only so long as it can be supported by admissible evidence. This is merely the schools version of the issue.
However, the school has failed to capture the essence of the complaint in re Title IX and the allegations that school officials at a private institution provided insufficient oversight of a publication which they exercised substantially larger control than a journal or publication at a public institution.
Thus, the following statement is merely a slanted version of the issues and does little to illuminate the substantive Civil right issues prompting both the US Attorney and DOJ's interest in the issue.
Recall, we have two prongs to this investigation: one is the private cause of action brought by the plaintiff; and a second cause of action by the Federal Government.
One is civil. The other is criminal. There are two different sets of rules on what standards of evidence are required to successfully prevail.
There is little reason for the public to believe that the following statement accurately captures the essential facts of the case, nor properly creates a foundation for the complaint.
In October 2004, Harvard-Westlake School was advised by a student's parents that certain comments had been posted in the guestbook section of a website established to promote the student's entertainment career, and that the authors appeared to be Harvard-Westlake students. |
Notice the comment doesn't do anything about discussion the timing of the resposne. Note that the school has not stated a specific date. What they appear to be doing is couching the initial events into a larger time frame of "one month."
This is misleading. The actual events were more plodding, calculating, and insidious. According to the complaint, there was a calculated effort over an expansive time, not a single snapshot.
Recall, that the complaint alleged that the abuse was not a single event, but a series of events.
Item 6: Appropriateness and timing of management responses
The statement is problematic in that it provides not timeline or specific dates to support the contention that the response was immediate. Again, the school has vague referenced the month, but does little to suggest that the response was, in fact, immediate.
Again, an assertion without support of admissible evidence, is not evidence, merely a fantasy or desire. This is not a solid foundation upon which a robust defense occurs.
Although Harvard-Westlake had no affiliation or involvement with the website, the School immediately took steps to identify any of its students who posted comments and to assist law enforcement agencies with their investigation. |
Notice the school doesn't admit at this point that the threats were made using school computers. Rather, the school throws up the red herring of "it wasn't on our website." That's irrelevant to whether the school effectively supervised students; or whether the access to the school computers were effectively monitored by personnel with the requisite training in re Title IX.
It remains a matter of law whether management's actual response met the requisite standard required. Also, it is up for plaintiffs to demonstrate that the steps were either immediate or appropriate.
Given the complaint has not been dismissed, and management continues to discuss a defense, we tend to side with the plaintiff. Also, we presume that the facts as outlined in the complaint, not this press release, are true for purposes of a summary judgment.
Thus, although interesting and a desirable impression to leave with the Alumni, we are not persuaded that the management response was immediate, appropriate, timely or supportive.
Item 7
It is misleading to suggest that an action is "voluntary" when it comes only after an investigation. Rather, it appears that the only catalyst for the students to respond was, despite the known legal implications of the misconduct, they hoped to carry favor.
This shall fail. For if they truly did "voluntarily" come forward, then they knew that their actions were linked with the postings on the board. Yet, what does this say about their education--that, despite a clearly promulgated standard not to engage in conduct that would bring discredit upon the Westlake Community, that their actions were in apparently contravention to this standard of excellence.
Thus, to suggest the students "voluntarily" did anything would ask the public to believe, that despite making threats of death [that they said they didn't mean, and had no intention of doing], that they would immediately come forward and say, "I did something that I didn't mean, and I had no intention of carrying out."
This is absurd. It asks the audience, public, and wider legal community to believe that there are two realities at the same time: That the students engaged in inappropriate conduct, but did nothing until there was an escalation; but then, this reality reverses, when the DA reviewed the matter, the students "didn't mean it," yet the students apparently knew enough that they were the ones who engaged in the misconduct that they knew it was them and they "came forward."
Neither of these contentions are supportable by other evidence. First, none of the students showed any remorse on the website; and secondly, there is no evidence to suggest that a student that "doesn't plan to do it," would then think, "I am related to this allegation related to something that wasn't real."
If this is true, then we have to ask ourselves, despite the many hours of homework to inspire critical thinking, why any student would be foolish enough to post a threat of death, then argue they didn't mean it, then "voluntarily" come forward only after the escalation occurred. This type of thinking is far to convoluted to suggest that Harvard Westlake is educating students to be both critical thinkers or responsible students.
A number of the students who made these comments voluntarily came forward and acknowledged their involvement and responsibility. |
Item 8
We next arrive at the curious phase of the analysis. For it is at this juncture, management and the school show their true colors.
Let us recall that the cause of action which alleges a conspiracy in re hate crimes is one that is linked not with an overt act, but with a threat.
The two are not the same. A threat which causes the reasonable person to fear for themselves and their safety, is a threat.
It is a separate cause of action if the threat was carried out. That is battery.
Thus, for the students to suggest that they "didn't mean it" or 'didn't intend to carry it out" is no defense.
Rather, it simply raises more questions about what the students were thinking, if at all, when they wrote the comment.
Yet, management and the school would have the public believe that the students "were thinking" when they voluntarily came forward. How convenient. And implausible.
These students made it clear they never intended to harm the student. |
Harassment doesn't require an actual physical action, merely a course of conduct that a reasonable person would understandably fear for their personal safety.
The issue isn't what is in the defendant's mind, but what a reasonable person upon hearing these statements would think or do. In this case, a reasonable person would believe that the threat of death was a real threat, only more so in the wake of Red Lake and Columbine shootings.
Indeed, it is a separate matter whether they intended to carry out the action, and the basis for questioning the DA's judgment. The DA fails to credibly argue that the case was appropriately dismissed.
Again, it doesn't matter what they intended to occur the future. What is actually the problem is what they actually did and what the reasonable person would do in response to what actually happened: A statement issued threatening death.
The complaint alleges there were reasonable, measurable, distinc, and real consequences as a result of these outrageous threats of death. This is what is required for a damage award: To show a cost or consequence of the conduct.
Given the gravity of the threats freely posted and the scope of the broadening DOJ investigation in contravention to the DA's position, this would tend to offset any chances for summary judgment and raises substantial doubts whether the defendants can hope to credibly argue any qualified immunity.
Thus, at this point, it is clear that the school has aligned itself as a co-defendant with both the DA and the students making the threats of death.
Such is a very weak wagon upon which to hitch ones defense. They might as well align themselves with the prison guards at Abu Ghraib and Guantanamo.
Item 9
The school then makes an assertion without evidence that it took appropriate action.
The School took appropriate disciplinary action. |
This statement is problematic. It does little to outline Title IX, nor does it demonstrate credibly that the actions were appropriate.
Not also that there is no mention of the time of the "discipline" nor any statement on what was actually done, or what was the foundation upon which the decision, analysis, and judgment was made that the disciple was appropriate.
The School handbook never says that disciple is required, only that the there "may" be discipline imposed. Thus to suggest at this juncture that the school to "appropriate" action is a defense that is a red herring.
Under the school rules, "taking no action and imposing no defense" is what the complaint alleges occurred. Moreover, if we rely solely on the terms in the handbook as the governing language, then the fact that disciple "may" be imposed is satisfied when "nothing" is actually done.
Item 10
This statement acknowledges that there is a link between the student's conduct and the school reputation.
However, the school doesn't apologize for anything alleged in the complaint, about Title IX, or anything related to the subsequent allegedly unproductive discussions between counsel and the defendants.
We deeply regret that such inappropriate and improper comments were posted on this student's website by other students in our school community. |
The comment is interesting. The school now acknowleges that there were "other students" involved, yet the school is not specific as to the number. Does the school still not know?
Note also the school is not apologizing for anything in the complaint: The school is showing no remorse in response to the allegations in the complaint, and the school is doing nothing to say, "We are willing to settle."
Yet, let's review what Hudnut said above. Hudnut said, "We have a defense." That seems odd to suggest a defense is needed, yet show remorse only for the conduct of others, all the while failing to address the substance of the complaint: That there was abuse that was not appropriately handled.
Indeed, the schools continues to assert unpersasively, that it did the right thing, yet counsel has found sufficient evidence to support an affidavit for the complaint, and the defense has said nothing about a frivolous case.
Thus, we are not persuaded that the school is actually sorry for anything which [a] counsel has found sufficient admissible evidence to support; or [b] prompted the DOJ and US Attorney to launch a criminal investigating.
Item 11
Here is where the previous statements about "the website they accessed" was outside out control.
Note the above statements that suggest the school "had not control." Yet, at this point, we now find that the school admits that the postings occurred using school computers.
Like many schools, Harvard-Westlake faces difficult issues related to students' use of the Internet. |
Indeed, the issues are so "difficult" that DoJ and the US Attorney have directed federal law enforcement to reopen an investigation previously closed by a well trained ABA member of the bar; and has a potential liability of $100M which the insurance companies have no interest in paying.
Item 12
Here the school mentions in passing that the policies which require close monitoring of equipment were not effectively carried out.
It remains to be understood whether this "lapse" [permitting someone to post threats of death, and then allegedly failing to follow procedures required to satisfy Title IX] is a symptom of a wider training problem, or a cursory management style by both the board and Hudnut.
The School has policies to prevent improper use of its computers, and has strict policies prohibiting harassment. |
To suggest that the school has a "policy" is meaningless. This doesn't do anything to credibly argue that the policy was enforced, understood, or was effectively managed and monitored.
We see nothing that incorporates by reference the exact policy which reportedly exists; nor do we see anything in writing that says, "This is our policy." Defendants have done nothing tat this point, other than assert, that they are in compliance with the statutes.
Indeed, the FBI and US Attorney have sufficient basis to question the DA to investigate whether these policies were, in fact, real or enforced.
Again, because we see nothing before us to suggest the policy was actually enforced, we tend to side with the plaintiffs in re the decision to dismiss the complaint.
The school has two problems: To show that it had a policy that met Title IX; and that the policy was effectively implemented with requisite oversight required per casual.
It remains to be understood during discovery how cooperative defendants are in providing this information; or whether Herculean efforts are required to surmount a scheme designed to delay lawful proceedings.
These are not issues which management cares about. They know, at this point, that it is up to the plaintiff to prove that the policy was clearly promulgated; that the rights were clearly established; and that the defense failed to ensure that the clearly promulgated statutes and policies were in conformance with standards; and that the conduct of the administration actually was in contravention to this; and that there were measurable damages supporting a claim of $100M.
Based on the foregoing analysis of the press release, I don't see how management can reasonably hope to defend anything. They have not persuaded this reader that their conduct was appropriate.
Moreover, given the severity of the allegations, the response of DoJ and the US Attorney, and the second guessing of the DA, I tend to believe that there will be no summary judgment.
Moreover, given the school officials exercise greater administrative control over the school publication than that at a public school, I see little to suggest that the school has any defense for apparently failing to ensure that the school editor and advisor were appropriately versed on either case law or the duties to ensure that the content was appropriate.
Item 13
The students have admitted that they didn't "mean" to do something they put into writing.
Harvard-Westlake aims to give its students a responsible amount of freedom in how they live their lives as young adults. |
Freedom is not the license to threaten others with death. Nor is freedom the license for a school administration to work with others to not effectively deal with both a foreseeable and actual problem.
Freedom is not a license to suggest things are going well, when they are not; and then turn around and accuse those who dare spot the inconsistencies as "they have a problem."
No, Mr. Hudnut, you have a problem. A $100M problem. Right on your lap. What are you going to do this summer, enjoy your "free" summer vacation?
Item 14
The following is a fatal admission contrary to interests. The school apparently advertises that it teaches appropriate conduct.
Yet, why is the school unable to ensure that the conduct is in conformance with the statutes barring using institution equipment in efforts to unlawfully intimidate, threaten, and harass another student? No answer.
We don't monitor and supervise their every move, action and word. |
It remains a matter of law whether the school actions met the requirements under Title IX or the clearly promulgated procedures requiring technology to be appropriately used.
Based on this fatal admission, whether the school did or did not have an appropriately monitoring system is irrelevant. The School in this press release has admitted that students do make statements that are threatening; that the students have unsupervised access to the computers; and that the response to that conduct only comes after some sort of convoluted logic train that defies reason.
Item 15
The nation appears to be mixing the notion of "freedom" with that of "lack of accountability." One may be "free" but this doesn't mean that the students are without responsibility.
In the following statement, the school then fatally recognizes that there are foreseeable situations where the conduct could violate the law.
While this freedom fosters personal responsibility, occasionally it is abused. |
It remains to be understood through discovery whether, despite this foreseeable risk, the school took appropriate actions per Title IX to ensure that the facilities, equipment, school staff, administrators, IT department, and the supervisory teachers had the requisite training, tools, and resources properly allocated to implement the requirement of Title IX.
Item 16
HW assets, without evidence, that it "appropriately" deals with abuse. Such is not a comforting though.
Let us review how the United States "appropriately" "deals with abuses." First, the US Commander of the Joint staff has a private discussion with CBS about avoiding releasing the photos of abuses just prior to the Supreme Court hearing the case.
Second, the US despite being a signatory of the Geveva Convention, crafts under the direction of the now-US Attorney General that there are occasions when it is permissible to commit torture.
Third, at times when the US is incapable of resolving a public relations problem, it deprives the rights of individuals who have committed no crime; and were simply walking down the road in Pakistan;
Fourth, despite no evidence, the US Government then took individuals to remote location on other countries on GulfStream V jets and then allowed other people in other nations to torture and commit manslaughter.
Is that the kind of way Harvard Westlake also "deals" with abuse?
Harvard-Westlake deals with abuses in ways that teach lessons for the future. |
The way the American government "teaches" lessons is not by simply threatening death, as your students have done, Mr Hudnut, but actually carrying out those threats.
This is not longer an academic setting. You are not under criminal investigation.
There are no longer "lessons of life" and "things you could apply in the future." These are matters of criminal law.
Congratulations, you are under investigation by the US Department of Justice and the Federal Bureau of Investigation: The same government entity which abused the rights of individuals at the Bureau of Prisons.
Schools not out. This is going to be a long summer school session, Mr. Hudnut.
Are you enjoying the lesson? It hasn't started yet. We look forward to an interesting interchange in re interrogatories, depositions, and the comprehensive court litigation.
Stickers here:
Statement from Harvard-Westlake School Regarding Lawsuit 4.26.2005 -------------------------------------------------------------------------------- From Headmaster Tom Hudnut: You will likely be hearing about a lawsuit that has been filed against Harvard-Westlake. The school is certain that the suit will be found to be without merit, and we intend to defend it vigorously. We are very confident that the school, through its immediate actions to get to the root causes of this situation, came to a thoughtful and well-reasoned conclusion that the school environment was indeed safe for the student despite the inexcusable comments that were posted on the website. The following is the school's response to the press release announcing the filing of the suit: Statement from Harvard-Westlake School regarding Caplin v. Harvard-Westlake School In October 2004, Harvard-Westlake School was advised by a student's parents that certain comments had been posted in the guestbook section of a website established to promote the student's entertainment career, and that the authors appeared to be Harvard-Westlake students. Although Harvard-Westlake had no affiliation or involvement with the website, the School immediately took steps to identify any of its students who posted comments and to assist law enforcement agencies with their investigation. A number of the students who made these comments voluntarily came forward and acknowledged their involvement and responsibility. These students made it clear they never intended to harm the student. The School took appropriate disciplinary action . We deeply regret that such inappropriate and improper comments were posted on this student's website by other students in our school community. Like many schools, Harvard-Westlake faces difficult issues related to students' use of the Internet. The School has policies to prevent improper use of its computers, and has strict policies prohibiting harassment. Harvard-Westlake aims to give its students a responsible amount of freedom in how they live their lives as young adults. We don't monitor and supervise their every move, action and word. While this freedom fosters personal responsibility, occasionally it is abused. Harvard-Westlake deals with abuses in ways that teach lessons for the future. |
posted by Constant @ 11:00 AM
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