When Dean Lawrence E. Mitchell of Case Western Reserve University School of Law announced earlier this week that he was taking a temporary leave of absence, we offered two theories about why. The first was that the university wanted to remove him from his post so it could conduct an independent investigation of the allegations made against him in a lawsuit by Professor Raymond Ku. The second was that Dean Mitchell wanted to devote his full time and energy to fighting Professor Ku’s lawsuit, which claims that the dean retaliated against Professor Ku after Ku reported alleged sexual harassment by the dean to university officials.
Of these two theories, the second is probably closer to the truth. Through his lawyers, Dean Mitchell is fighting back — hard — and the university seems to be supporting him all the way.
Since we’ve devoted extensive coverage to the allegations of the lawsuit against Dean Mitchell, let’s now hear the arguments defending him (and attacking Professor Ku). Some of them have been made by Dean Mitchell’s lawyers and the university, and some come from Case Western students and faculty members with whom we have communicated. They paint a most interesting picture….
(Please note the UPDATE added to the end of this post, a message just sent out to Case alumni by President Barbara R. Snyder.)
Yesterday Dean Mitchell filed a powerful emergency motion to strike “certain immaterial, impertinent and scandalous allegations” from the complaint. The motion includes, as Exhibit A, a table listing the many allegations and other material that Mitchell would like to be removed from the record.
The motion, covered by Crain’s Cleveland Business and the Cleveland Plain Dealer, sets forth Dean Mitchell’s theory of what is really going on here. Here’s an excerpt (the full motion is posted below):
In a nutshell, the motion claims that Professor Ku is mounting a “smear campaign” against Dean Mitchell, who now holds the deanship that Ku wanted but never got. The gist of the motion is that because this is a retaliation case, the salacious details about possible alleged sexual harassment by Mitchell are legally irrelevant. The motion also previews Mitchell’s defense to the retaliation claims: there was no retaliation, because Ku voluntarily resigned from his post as associate dean, and any other alleged adverse employment actions either did not occur or resulted from Ku’s “unsatisfactory performance” on the job.
The motion was filed on Mitchell’s behalf by Steven Kaufman and Jennifer Lesny Fleming of Kaufman & Co. LLC. Kaufman and Fleming are prominent Cleveland litigators with a reputation for aggressive representation of their clients, so Mitchell’s retention of them shows that he’s ready to fight, not settle. And Kaufman & Co. has in turn hired a high-powered public relations firm, Dix & Eaton, signifying that it’s ready to fight in the court of public opinion as well as Cuyahoga County.
(Case Western itself, also a defendant in Ku’s lawsuit, has hired Ogeltree Deakins, one of the nation’s top labor and employment firms. The university did not join in Mitchell’s motion.)
Mitchell’s lawyers aren’t his only defenders. We have also heard from faculty and students who have voiced support for him — and criticism of Ku. Here’s a message from a current Case student:
Dean Mitchell may, or may not, be a womanizing s**mbag. But I like the guy. He’s done great things for the school. Not the least of which was deciding to cut the incoming class size in order to keep our median numbers up. Hopefully this will help us to move back up in the almighty U.S. News rankings. It was also not an easy decision for the dean to make, as staff had to be let go and people were pissed off. But I truly believe he made that decision for the benefit of the school.
What I have been hearing around the school the last few days is not about Dean Mitchell, but rather about what a whiny little b*tch this Raymond Ku guy is. He obviously got his ego damaged in front of his wife two years ago at a party, and he just can’t let it go. Now he’s dragging a bunch of faculty and staff into this who didn’t want any part of it. Law professors are literally the f**king worst. Their drama literally beats out high school girls, politicians, and law students combined.
Anyway, just wanted to let you guys know that many of us at Case have the dean’s back, for now at least.
This statement touches on two major themes that Team Mitchell members have stressed to us. The first is that, setting aside his perhaps complicated personal life, he’s very good at his job. This isn’t legally relevant to Ku’s allegations, of course, but since Mitchell’s name has been generally dragged through the mud by the lawsuit, his supporters want the world to know the many good things about him.
One Case alum we heard from described Dean Mitchell as a “brilliant guy” and a “great teacher.” Case faculty members, current and former, praised Dean Mitchell’s leadership, including his willingness to make tough choices; his traveling around the country to meet with managing partners of law firms, to advocate for Case students and to find out what the school can do to make its graduates as marketable as possible; and his extensive reforms to the Case curriculum (which even my colleague Elie Mystal, a harsh critic of legal education and of Dean Mitchell, had to admit “don’t sound so bad”).
The second theme is that Professor Ku is being, as our tipster put it, “a whiny little b*tch.” A few Case sources have echoed the claim in the motion to strike that Ku is upset about not being dean himself and that he also opposes Dean Mitchell’s commendable efforts to reshape Case in response to changing market conditions. Some have argued that Ku has acted selfishly in filing this lawsuit: in an effort to advance his vendetta against Dean Mitchell, Ku has aired dirty laundry that the true victims of any alleged harassment (the women) decided they didn’t want raised publicly; violated the privacy of the true victims, since anyone who does even a little research can figure out who they are; and harmed Case Western Law’s reputation, which won’t help Case students and alumni in a tough job market.
Those are the two overarching themes. Here are a few smaller allegations made by Dean Mitchell’s defenders among the students and faculty:
1. Note how the inflammatory flyer that made false allegations against Dean Mitchell got dropped from the amended complaint. Why? Is it because Ku and his counsel wanted to draw media attention to it but knew it would ultimately be deemed legally irrelevant to Ku’s retaliation lawsuit? As the motion to strike puts it, the omission of the flyer from the amended complaint “is telling as to the inappropriateness and unlawfulness of his initial attachment of it to the Original Complaint.”
2. Ku made no attempts at a pre-suit settlement; the university learned of this lawsuit from press accounts, not from Professor Ku or his counsel. This shows that the lawsuit was not about seeking “justice,” but about personally embarrassing Dean Mitchell in the media, perhaps in an effort to oust him.
3. Ku claims various forms of retaliation, but his claims fail. For example:
(a) As a general matter, he was treated exceptionally well by the law school. He recently received a full-year sabbatical at full pay, instead of what he was actually entitled to, either a full-year sabbatical at half pay or a half-year sabbatical at full pay.
(b) He claims that he was wrongfully deprived of compensation after leaving the associate deanship. But according to current and former faculty members we heard from, the law school’s historical practice has been to give additional compensation to associate deans only during the time that they are actually serving as associate deans (i.e., you don’t keep the compensation bump afterwards in recognition of your service, despite Ku’s claims to the contrary).
(c) He claims that he has been saddled with additional teaching and administrative duties. But in these challenging times for legal academia in general and Case Western specifically, many other Case professors have been asked to do more for the school, in terms of teaching or administration or both, for little or no additional compensation.
(d) He claims that he did not receive as large a raise as he should have (which is itself a #lawprofessorproblem). First, large raises have been in short supply for Case faculty as of late — which is not surprising, given falling enrollment (and tuition revenue). Second, if you look at his CV, you’ll see that he has not been very productive as a scholar over the past few years, despite recently taking a full-year sabbatical. His last full-length article was published back in 2009, and even though he has a book coming out in 2015, it’s just an update to his existing cyberlaw casebook.
4. Ku is represented in this case by Subodh Chandra. Chandra’s wife, Meena Morey Chandra, chairs the visiting committee of Cleveland-Marshall College of Law — a rival school to Case Western that competes with Case for students and faculty, which could benefit from Case taking a tumble.
So that’s the case in favor of Dean Mitchell and against Professor Ku. As is so often the case in employment cases, there are two (or more) sides to every story.
We reached out to Subodh Chandra, Ku’s counsel, to offer him a chance to respond to these allegations against his client. Here is what Chandra had to say….