Gibson’s Bakery v. Oberlin College: A case on being adults, not fighting discrimination

On the first day of the civil trial in May of 2019, where a small business was suing Oberlin College for branding it as racist, I was somewhat shocked by the testimony of Ferdinand Protzman, a longtime communications specialist for the liberal arts school.

A key part of the trial was to show why the school had dropped Gibson’s Bakery & Market as a purveyor of baked goods for the school’s cafeteria. What should have been a typical “town and gown” dispute that could have been solved quietly behind the scenes had mushroomed into a case that involved college student protests, a liberal arts college with a history of progressive activism, free market economics, free speech, civil rights, defamation, accusations of racism, and other timely issues.

The Gibson’s vs. Oberlin College case has received a lot of attention nationally, and recently an Ohio appeals court ruled Oberlin College should pay the $32 million owed to Gibson’s for supporting claims the bakery was discriminatory.

Whether Oberlin College decides to take their appeal to the Ohio Supreme Court or U.S. Supreme Court is not known at this point. Oberlin College’s director of media relations Scott Wargo said the school was reviewing the court’s opinion and deciding on its options.

As someone who was in that courtroom for all seven weeks of the trial, I was a bit mystified by the reaction after the verdict a few years ago. People who were not in the courtroom instantly began pontificating how this verdict was a huge blow against civil rights or how good conservative people had beaten back the evil leftist elites that schools like Oberlin represent.

In his questioning, Gibson’s attorney Lee Plakas simplified things with Protzman. What was the reason for Oberlin College to cut ties with the business they had worked with for more than a century? Plakas then pointed out emails from various administrators that the student might have thrown a “tantrum” on campus, specifically in the cafeteria while eating dinner, and that might be a good reason to get their cookies and bagels elsewhere.

“The concern was that the students were angry?” Plakas asked. “The fear was that angry students would throw food [made by Gibson’s] on the floor [of the cafeteria] and stomp on it?”

“Yes, that was one of the concerns,” Protzman answered.

“Doesn’t that sound more like a nursery school than a college?” Plakas continued.

“Nursery school students do throw food on the floor, yes,” Protzman said.

Protzman was asked why the students weren’t told to stop their threats.

“We are not the students’ parents,” Protzman said.

The case

First some background of what took place. On the day after the 2016 presidential election, a Black college student went in to Gibson’s to buy some wine. He tried to use a fake ID to buy one bottle, and the clerk of the store saw that he also had two other bottles under his jacket. He and two others were charged with theft, eventually plead guilty, and told the court there was nothing racially inherent in their arrest.

But the next day, hundreds of protesters demonstrated outside Gibson’s claiming the shoplifting arrests were racist in nature. Fliers were distributed at the protests claiming the bakery was a “racist establishment with a long account of racial profiling and discrimination.” The Oberlin College Student Senate soon followed with a resolution condemning Gibson’s, which was emailed to the entire student body and publicly posted in a display case on campus.

Oberlin College then cut business ties with Gibson’s. The business took a huge loss, and still does not have nearly the business it had before the 2016 protests.

The issue that was to be decided in the Lorain County  court was not about the student protest, however. The school was being sued for its role in the dissemination of information that Gibson’s was racist. The school, the bakery, and the court agreed that there was no evidence it was racist in pre-trial hearings, though the court did give the school the opportunity to provide evidence or testimony. The school never presented any.

So, what was this case about if it wasn’t questioning the rights of free speech and student protest? What this case was about was what Oberlin College did or not did not do to limit the false messages of the protestors. 

Plakas said the jury was deciding whether Oberlin College had “the intestinal fortitude to be the adult in the room,” according to media coverage at the time. That message seemed to resonate with the jury more than anything else.

What Gibson’s proved in court was that the college’s dean of students and others were passing out the controversial flier at the protest. Oberlin officials also bought them pizza, used student funds to pay for gloves for the protestors and allowed them to use school copiers to print the fliers. The Student Senate’s resolution declaring “Gibson’s has a history of racial profiling and discriminatory treatment of students and residents alike” was posted in a student center and allowed to remain posted for about a year. 

A few days after the shoplifting incident, Oberlin president Marvin Krislov sent out an email to students that said, in part:

“Regarding the incident at Gibson’s, we are deeply troubled because we have heard from students that there is more to the story than what has been generally reported.”

All that seemed to be pretty clear evidence that Oberlin College defamed Gibson’s. Given all that, how did the jury decide on such a high dollar verdict in a legal area – libel and defamation – that has always been tough to prove?

There are two reasons: a legal one involving “aiding and abetting,” and the other a social media trail.

First: “aiding and abetting” usually applies to criminal cases, for example, the driver of a getaway car in a robbery who is held responsible for the crime as well. But Ohio (as well as about half of the U.S. states) has an “aiding and abetting” portion of their libel law, meaning you can be held responsible if you hand out libelous material, even if you didn’t create it.

The aiding and abetting claims have been ruled as acceptable by Ohio courts, as in Cooke v. United Dairy Farmers, Inc., where Judge John Miraldi provided this “aiding and abetting” instruction to the jury:

“As a general rule, all persons who cause or participate in the publication of libelous or slanderous matter are responsible for such publication. Hence, one who requests, procures, or aids or abets, another to publish defamatory matter is liable as well as the publisher.”

I spoke to several jury members after the Gibson’s verdicts who told me the “aiding and abetting” portion of their decision was “very important.” 

Second: The influence of social media is different in court cases than it used to be. It used to be that the “he said/she said” disputes would be treated as “hearsay” by the courts and deemed inadmissible. But in this case, Oberlin College administrators pontificated endlessly about Gibson’s and left clear evidence of intention and malice in their action.

The court of appeals mentioned this in their ruling last week as a key component as the why the verdict should stand:

“The Gibsons presented several printed text and email messages between senior college administrators to demonstrate that, nearly a year after the bakery incident, they did not believe that the college should work with the Gibsons to resolve this situation…One text message sent by the interim assistant dean expressed that the criminal conviction of the three students was ‘an egregious process’ and that she hoped the college would ‘rain fire and brimstone’ on the bakery.”

‘Missing the major point’

What happened in this case is that the judge limited what Gibson’s could bring in as evidence, made the window of opportunity to do so very tiny, and left civil rights issues mostly out of the legal discussion. The issue was quite clear: whether the school actively helped a false claim to be disseminated, and did so knowing it was false.

The academics who study free speech still think this case will wreak havoc on college campuses by limiting students’ ability to express themselves. Some higher education observers worry that the ruling will have a chilling effect on free expression. Some have expressed that colleges may be fearful of litigation like this case, and will limit student speech as a preventive measure.

“This creates a very heavy incentive for institutions, particularly private institutions, to police the speech of their students and student governments, student organizations, student newspapers,” said Adam Steinbaugh, an attorney at the Foundation for Individual Rights in Education told Inside Higher Ed.

But most are missing the major point. Oberlin College had opportunity after opportunity to allow the off-campus protests, but to also send a clear message that Gibson’s is not racist. That approach seems logical and cohesive and could have prevented a jury from awarding $32 million.

But then again, those students threatened to stomp their bagels on the cafeteria floor. That was enough for the school to not act and be the “adult in the room.”