Constitutional Law

DEI leader who condemned ‘woke do-gooders’ files free speech suit against Bay Area college

The following article was first published by the SF Chronicle in July of 2023. Attorney Abby  Moscatel is local counsel for Tabia Lee.

DEI leader who condemned ‘woke do-gooders’ files free speech suit against Bay Area college

The Black woman who was fired by De Anza College as director of its diversity office — an office she criticized as overly “woke” — has filed a free-speech suit against the school.

Tabia Lee “stood up for free speech, academic freedom, humanism, and equal treatment for all students and faculty, regardless of race,” and “refused to knuckle under to campus orthodoxy,” a lawyer for Lee declared in a lawsuit filed Monday in federal court in San Jose.

As a result, the suit said, Lee “was accused of ‘Whitesplaining’ and not being the ‘right kind of Black person’ ” and was dismissed after less than two years at the college of 16,000 students in Cupertino. She seeks reinstatement, reimbursement for lost pay and punitive damages.

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One of Lee’s lawyers, Michael Thad Allen, and his firm have represented other academics who say they have been punished for questioning excessive campus policies favoring racial minorities and LGBTQ rights, practices that conservatives have labeled “cancel culture.”

For example, one of Allen’s clients, an associate professor of psychology at the University of Central Florida, was fired in 2021 for alleged classroom misconduct, seven months after tweeting that “Black privilege is real” and that Black people “are missing out on much-needed feedback” after nationwide protests of the killing of George Floyd by Minneapolis police. The teacher was reinstated by an arbitration panel and is now suing the school for violating his freedom of speech.

Another client, a former instructor at St. Philip’s College in Texas and a self-described conservative, is suing the school for removing him after a student reported — falsely, according to the instructor — that he had said pedophilia was widespread in the LGBTQ community.

Lee “has been canceled at De Anza,” Allen said Thursday. “She stood up for civil rights, universal human rights, equal treatment for all students regardless of the simple accident of skin color or sex, or other ascribed characteristics so beloved on college campuses.”

Lee, who has a doctorate in education, taught middle school in Los Angeles for a decade, then developed courses at Notre Dame de Namur University in Belmont and the College of San Mateo before being hired in the summer of 2021 as director of the Office of Equity, Social Justice and Multicultural Education at De Anza. She is also a cofounder of Free Black Thought, an organization of scholars, parents and others who oppose many of the views of mainstream civil rights organizations.

Early in her tenure, Lee’s lawsuit said, she was assigned to moderate a campus talk by Alicia Garza, founder of Black Lives Matter, and encouraged students to ask questions of Garza, even though Lee’s faculty overseers had forbidden any unscripted questions.

“At De Anza, Black women are expected to think the same (or to shut up),” attorney Abby Jane Moscatel said in the suit.

She said another staff member told Lee in 2021 that a Women, Gender and Sexuality Center at De Anza was considered a “safe space” for women of color, and that white people were not welcome. Lee responded that any campus facility should be equally available to members of all races and ethnicities, and the school’s response was “openly hostile,” the suit said.

After being notified of her dismissal, Lee told The Chronicle, “I think that’s why I was attacked from the beginning. Because I declared myself ‘not woke.’” In that interview, Lee referred to some employees at the school as “woke do-gooders.”

Lee also objected to the school’s use of the gender-neutral term “Latinx” instead of Latino or Latina. While De Anza officials contended that Latinx was more inclusive, the suit said a 2020 survey by Pew Research Center found that most members of that ethnicity had never even heard of the term, and only 3% used it, the suit said.

In addition, Lee accused the school of fostering, or at least tolerating, antisemitism. The suit said she was prevented from holding workshops on Jewish culture and remembrance, and that De Anza rejected her proposal to commemorate International Holocaust Remembrance Day on Jan. 27.

“‘Equity’ and ‘Engagement’ at De Anza does not include Jews,” Moscatel wrote.

A faculty committee, motivated by Lee’s “dissent from De Anza’s race-based orthodoxy,” recommended against renewing Lee’s tenure in May 2022, the suit said. It said college President Lloyd Holmes refused to dismiss her and ordered further review, but went along with her removal after another committee voted unanimously against her this February without observing her in class.

The college referred an inquiry about the suit to the Foothill-De Anza Community College District, which said Wednesday it would not comment on individual personnel matters. “We can share that faculty members have comprehensive due process and appeal rights both under the law and negotiated through their bargaining unit,” said Paula Norsell, a district spokesperson.

Constitutional Law

Are Vaccine Mandates Constitutional?

The following was first published by the Flathead Beacon in October of 2021

The Biden Administration’s proposed vaccine mandate on the federal level is almost guaranteed to be unconstitutional

In the early 1900s, we created a smallpox vaccine that prevented both transmission and infection. The Board of Health in the city of Cambridge, Mass., adopted a regulation forcing free vaccinations of its residents. If they did not want to take the vaccine, they had to pay a one-time fine of $5 (roughly $120 today). A man challenged the regulation, in part because he had bad experiences with prior vaccines.

While his case was pending, he continued traveling, public speaking, and living life normally. At the end of the day, the court ruled against him, and he had to pay the $5 fine. Jacobson v. Massachusetts, 197 U.S. 11 (1905).

The facts under Jacobson are like what we have with COVID because we are in a pandemic, and we have a “vaccine” that various levels of government are trying to mandate.

However, today’s vaccine mandates on the state level go much further than Jacobson. For starters, we are seeing restrictions on conducting everyday life like travel, eating at restaurants, working, and shopping unless vaccinated. Second, the fine for not taking the vaccine is not a relatively inexpensive, one-time charge. Rather it is invasive and expensive testing that is ongoing.

Now that the courts are beginning to hear challenges to state vaccine mandates, we can hope that they will recognize the differences between a one-time fine and being ostracized from society. One such case is based in Oregon and is being litigated in part by the Freedom Foundation. In Williams v. Brown (Case Number 6:2021cv01332), the challengers are either working in the medical field or in state government, and they all have natural immunity and antibodies. More plaintiffs are joining the action every day. They are challenging the state vaccine mandate because there is no natural immunity exemption.

The Biden Administration’s proposed vaccine mandate on the federal level is almost guaranteed to be unconstitutional.

First, the separation of powers prevents the executive branch from creating legislation. Here, Congress has not passed any legislation mandating vaccines. The Biden Administration is using a work-around by using the Occupational Safety and Health Administration (OSHA) by telling OSHA to write the rule that any business with at least 100 workers must force employees to get vaccinated or produce weekly test results showing they are virus free. If a company refuses, the fines reach up to $13,600 per violation. OSHA will attempt to use its “emergency temporary standard” (ETS) to fast-track the rulemaking process. Most of OSHA’s emergency rules have been struck down by the court. Of the 10 total rules under ETS ever, courts overturned four and partially blocked the fifth.

Second, even if the OSHA rule survives legal challenges (a BIG “IF”), we have a commerce clause problem. The commerce clause states that states have general police powers for health and safety, not the federal government. Recently, the Supreme Court ruled that health insurance mandates are NOT covered under the commerce clause. A vaccine requirement is arguably further removed than a health insurance mandate, and it affects employees.

Third, the government is trying to force businesses to do its dirty work. It is unconstitutional to make businesses force mandates on individuals that the government can’t do itself.

So, are vaccine mandates constitutional? It depends on who is telling you to take them, and under what authority. Will businesses go ahead and force their employees to take the vaccine anyway, and before the court hears OSHA and Jacobson challenges? Now, that is a different question, altogether.