In response to “Open Letter to President Ambar Regrarding Gibsons’ Suit,” The Oberlin Review,  Nov. 18, 2022

Dear Mr. Krass,

I read your open letter to President Carmen Twillie Ambar in the Review, and feel that as an alum like you, I may be in a better position than even President Ambar to answer it.   

You ask why you should continue to support Oberlin College. Perhaps the best reason is that you, like me, developed a great affection for the College while you were here and, like me, feel that you owe a debt to the school for shaping the person you have been since you graduated and are today. A second reason is that the money you give does not go to a name but rather supports students who might not otherwise be able to afford Oberlin, or helps the College pay its utility bills, or enables it to restore the ceiling of the Allen Memorial Art Museum, etc. Indeed, you can specify which parts of the Oberlin experience benefit from your money or choose a professor to honor. 

Why should Oberlin’s handling of litigation from an incident that arose before President Ambar took office, when few if any current Oberlin students were matriculants, affect your generosity?  Now, I am not saying that a school cannot change its character so much that it could affect alumni giving by those who feel a debt to it. If Oberlin were a hotbed of neo-Nazism, racism or antisemitism, or if it no longer was a school that valued the combination of social consciousness, rigorous education, and eye-opening intellectual life that the Oberlin of our day did, that would be good reason to cease giving despite a sense of personal debt. Indeed, if you were a MAGA Republican, why should you give to a school dominated by students who oppose toxic aspects of MAGA politics like the dehumanization of immigrants and election denialism?

Being upset over the way Oberlin handled a lawsuit is of a different order entirely. In this connection, I wonder if you would be as upset and critical as you are had you looked into what happened as closely as I have. To begin with, the College’s direct involvement in the incident, as opposed to the actions of its students for which the College bears no legal liability, was limited, if it existed at all. I think the College’s connection to the event should have been found insufficient to support a finding of liability and never justified a verdict of the size rendered. For example, a plaintiff valuation expert included in his damage estimates lost rents from properties the Gibson’s owned and testified that rental losses would extend over decades. The process was biased against the College at every turn, with the police report including testimony only from members of the Gibson family and employees, with no testimony from the involved students or witnesses who had provided the police with written testimony. The biased process included a judge and prosecutor who arranged an irresistibly lenient, if fair, plea bargain for the three charged students. Oberlin was precluded from presenting any testimony refuting the students’ guilty pleas at trial. 

Finally, you are most troubled by the College’s failure to settle. I think if there was a College failure, it was a failure to immediately provide, after Mr. Gibson requested it, a statement that the College condemned shoplifting and had no reason to believe that racism played a role in the effort to detain the alleged shoplifter. Did racism play a role? It didn’t appear so at the time, but a story in the Review noted that in the course of discovery the College discovered a message or two from Allyn Gibson Jr. who chased and attacked the student which suggested racial bias. This evidence was not admitted at the trial.

Central to your concerns seems to be distress that the College didn’t settle the case which would, had the settlement been reasonable, have been better for all involved. I agree that a fair settlement would have been desirable. My understanding is that given the actual rather than fictional damages the Gibson’s suffered, a settlement in this range was offered. But note that although you blame the College, the College’s insurer and not the school might well have made the decision on whether to settle. This has not been disclosed, but often an insurer will have a major or even the final say in whether to settle a lawsuit against its insured and for how much.

Moreover, it takes two to settle. I am sure that as a lawyer, you understand that in civil litigation the major impetus to settlement is the uncertainty of the verdict coupled with the uncertainty of the outcome. One might also ask why the Gibsons did not seek to settle. Were they confident a jury would award much more than the College might offer them, or were they perhaps unconcerned about the prospect of paying lawyers’ fees? In deciding what to offer as a settlement, the College could not and should not have anticipated a verdict for damages far in excess of anything the Gibsons suffered nor should the limited involvement of a school official — mainly letting the students use a College copier and handing a flier to a reporter — have justified punitive damages.

After thinking further about the Gibsons’ lawsuit and reviewing what happened in the litigation — the parties’ briefs on appeal are available and news sources provide additional information — I hope you will join me in continuing a pattern of generous giving to a school we both have loved and to which we both owe so much.

Richard Lempert, OC ‘64