Metropolitan News-Enterprise


Tuesday, August 16, 2011


Page 1


Memo Accusing College Professor Held Protected Speech


By SHERRI M. OKAMOTO, Staff Writer


An internal memorandum distributed among the faculty at a community college, which criticized the head of the school’s psychology department and contained allegations from a student complaint that this professor was seen committing a lewd act in his office, constituted protected speech, the Court of Appeal for this district ruled yesterday.

Div. Six, in an unpublished decision, said the jury was properly instructed with CACI No. 1723, which allows a person to communicate with other interested persons provided the communication is made “without malice,” and that Raymond Launier’s memorandum about Arthur Olguin fell within the scope of this limited privilege.

Olguin was on the faculty of the Santa Barbara Community College District from 1999 to 2007 and served as the chair of the school’s psychology department when Launier applied for a teaching position in that department.

After Launier began teaching, he made a request for the college bookstore to include materials that he had authored as required materials for his classes, but Olguin directed the bookstore to “delete these supplemental products from the textbook orders for these courses” since it was improper for Launier to use these “self-authored products” in his classes.

Launier filed a grievance with the school stating that his “rights as a faculty member are adversely affected” by Olguin’s directive and circulated a 38-page memorandum among his colleagues, in which he complained Olguion’s actions obstructed his ability “to appropriately and economically incorporate testing and assessment into [his] courses in ways that truly enrich the learning experience of [his] students.”

He contended the “simple fact of receiving financial remuneration” from use of his materials in his courses was not unethical, and pointed to examples where other professors had used materials they had prepared in their classes. Launier claimed there was no basis for Olguin’s directive except “resentment,” “jealousy” and that he “was born not with a silver spoon in his mouth but with a slivered and forked tongue for spewing deceitful bile and deceptive rationalizations.”

Launier also called Olguin a “hyper hypocrite when it comes to his own history,” asserting “Olguin had been administratively removed from his role as Department Chair for alleged lewd behavior witnessed by a student in his office.”

Olguin later sued Launier and the college district, alleging multiple causes of action, including defamation, intentional infliction of emotional distress, and negligence by the district for hiring and not supervising Launier.

At trial, Launier testified that he wrote the memo to communicate with his colleagues because they shared his “legitimate concerns” about “academic freedom” and “the rights of faculty to develop and use materials” in their classes. He denied harboring any ill will toward Olguin.

He admitted that his license as a psychologist was revoked in 1993 after he did not contest charges that he had “sexual affairs with two clients,” but said his teaching position did not require that he be a licensed psychologist.

A mental health counselor at the school testified that a female student had reported seeing Olguin masturbating in his office in 1996, and that the student appeared credible.

Other faculty members and administrators who testified described Oguin as “very divisive,” “contentious,” and “very condescending.” Olguin conceded that his colleagues had criticized his “interpersonal relationships with them” for several years prior to Launier’s missive, but insisted he was never “disrespectful” to his colleagues and his students.

He further asserted “Launier wrote and distributed false and malicious material” in his memorandum, that the student’s 1996 allegations were untrue, and that he had only been temporarily removed from his position as department chair due to a loss in confidence over his ability to lead the department.

At the close of trial, Santa Barbara Superior Court Judge James Brown instructed the jury that if Launier’s memo contained inaccurate information, Olguin still had to prove that Launier acted “with hatred or ill will” or “without reasonable grounds for believing the truth of the statement” to recover damages.

On a special verdict form, the jury found Launier was not “acting with actual malice when he wrote and distributed” the memo to his colleagues. It found the university was “negligent in its hiring and/or supervision” of Launier, but the negligence was not “a substantial factor in causing harm” to Olguin.

Presiding Justice Arthur Gilbert, in his opinion for the appellate court, rejected Olguin’s argument that the jury’s verdict had to be overturned because it had not been instructed as to the definition of “malice.”

Gilbert reasoned that the parties’ closing arguments had linked the term to the concepts of “ill will or hatred” used in the instructions, and the alleged instructional error did not result in a miscarriage of justice.

From the evidence presented at trial, Gilbert said, a jury could reasonably infer that Launier was not motivated by malice, and “Laurnier’s testimony that he was motivated by concerns about academic freedom is supported by his memo, which is essentially a treatise on academic freedom.”

Gilbert added that “Launier’s memo touched upon sensitive constitutional interests by urging his academic colleagues to support his opposition to a public college’s censorship of his treatises and to protect the academic freedom of professors to plan their course materials,” and emphasized “even harshly critical opinions of those at the center of an important controversy” are entitled to constitutional protection.

The justice further reasoned that Olguin was unable to prove causation and damages from harm to his reputation since the testimony of his colleagues indicated they already had “a fairly poor opinion” of him.

Justices Paul H. Coffee and Steven Z. Perren joined Gilbert in his decision.

The case is Olguin v. Santa Barbara Community College District, B221724.


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