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10/21/2004

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Dan

My worry is that phrases such as "the need to gain a mandate" are beginning to sound rather quaint. The power they have depends on how much politicians are held morally accountable by the media and so on (that is: how much practical force moral ideas are given). I'm not heartened by what I see. So: my feelings again are rather like those in response to the last post. The analysis offered sounds rather too morally earnest and so (ironically) not cold-blooded enough.

Chris

They couldn't pursue a more centrist path. The desperation of their measures marks the desperation of their situation. They know that the meter is about to run out on social conservatism. The decadent corporate capitalism they support is destroying it. (You know Daniel Bell's "Cultural Contradictions of Capitalism.") So, they've got to "lock in" structural advantages now (much as the slave holding states did during the formation of our country) and put progressive policies in a huge hole that will take decades to dig out of. Centrism would only have left the ball in the middle of the field and run the risk of a center-left recovery, which would have moved the ball the other way and possibly even have driven them from the field. As it stands now, they're toying with a social and/or economic and/or military cataclysm that will move America in much the same way as WWII moved Western Europe into social democracy. (I'm not sure that's the best of all possible outcomes, but I do believe that America generally lags about 50 years behind Western European social movements.) Conservative elites knew that the odds of succeeding with a gradualist conservative approach were slim (considering how Protestant enthusiasm in America is fading), so they're simply rolling the dice on that one-in-five chance that they can actually create a libertine America with an economic stratification similar to the post-Reconstruction South of the Bourbon Democrats. Arnold Schwarzenegger and California are the embodiment of what the GOP would have the America of 2020 look like. A neo-Hooverism, if you will.

Dan

BTW, on the topic of media accountability, any thoughts on the Jon Stewart Crossfire appearance?

Bruce Wilder

In a deep game, many so-called "grown-up" Republicans hope Kerry will win, both for the country's sake, and also, for the leverage they imagine they will gain, as Kerry becomes associated with the "pain" consequent on Bush's foolish policy choices.

The Hooverisation of Kerry has been an underlying theme of the whole campaign, in the corporate right wing media.

Kerry will have to withdraw from Iraq. Unless he proves to be an unusually masterful politician, the Republicans will blame him for the "failure in Iraq."

Kerry will have to raise taxes. The Republicans will blame him for that.

Kerry may very well have to cope with an outburst of inflation, as oil prices rise, or China decides to increase the value of the yuan. The Republicans will blame Kerry for that.

TomR

So, who ever said that the Bush campaign was planning to win at the ballot-box?

If you concede that you cannot win a legitimate election, but must resort to 'other means', then the intensity of connection to your base may be what counts for more than any other concern.

Friend

READ THIS...

OPEN LETTER AND REQUEST FOR HELP
03-cv-1400 (Western District Pennsylvania)

I. INTRODUCTION

The inability during the allotted discovery period to obtain information from a defendant regarding pertinent issues is obviously prejudicial to a plaintiff in his attempt to prosecute his claims and obtain prompt resolution of his lawsuit. See Adams v. Trustees, N.J. Brewery Trust Fund, 29 F.3d 863, 874 (3d Cir. 1994) (prejudice encompasses deprivation of information from non-cooperation with discovery as well as the need to expend resources to compel discovery).

The meritoriousness of a claim or defense is to be determined from the face of the pleadings. See C.T. Bedwell Sons v. International Fidelity Ins. Co., 843 F.2d 683, 696 (3d Cir. 1988); Poulis v. State Farm Fire and Cas. Co., 747 F.2d 863, 870 (3d Cir. 1984). Here, the defendant never filed an answer to the Amended Complaint and thus have not presented even a facially meritorious defense.

Please note: On September 29, 2004, discovery closed without the defendant communicating any request, scheduling any deposition, and the like. Therefore, a motion for summary judgment is ripe for determination.

II. EXHIBIT ATTACHED TO DEFENDANT'S RESPONSE

The defendant has acknowledged the following with its current attachment (Exhibit):

(1) This issue involves Rule 15(a) of the Federal Rules of Civil Procedure which states, in relevant part, that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served...." Fed. R. Civ. P. 15(a). That is, a motion to dismiss is not "a responsive pleading." Centifanti v. Nix, 865 F.2d 1422, 1431 n.9 (3d Cir. 1989) (holding that a plaintiff is entitled to amend his complaint because neither a motion to dismiss nor a motion for summary judgment is a responsive pleading under Rule 15(a)). See also Washington v. James, 782 F.2d 1143, 1138-39 (2d Cir. 1986)(stating that a party may amend the complaint while a motion to dismiss is pending); and Vernell v. united States Postal Service, 819 F.2d 108, 110 (5th Cir. 1987)(noting that "[a] motion to dismiss is not a responsive pleading and therefore does not extinguish the right to amend an initial pleading").

(2) The defendant's Motion to Dismiss failed to make any substantive argument and addressed only the original complaint (no answer to the Amended Complaint was filed).

(3) The Western District Federal court at Docket No. 03-cv-1400 has disregard legal precedent. That is, the Western District on at least four other occasions followed Gonzalez v. Paine, Webber, Jackson & Curtis, Inc., 493 F. Supp. 499, 501 (S.D. N.Y. 1980) and Taylor v. Abate, 1995 WL 362488 (E.D. N.Y. June 8, 1995) (stating that a motion to dismiss is mooted upon the filing of an amended complaint). See: Harford County v. Mid-State Bank and Trust, Docket No. 98-817 (West. Dist. Pa. Sept. 23, 1998); Ceiriog Hughes v. Halbach & Braun Industries, LTD, et al., Docket No. 97-1348 (West. Dist. Pa. March 3, 1998); Allegheny Environmental Action, Coalition, et al., v. Westinghouse Electric Corporation, et al., Docket No. 96-2178 (West. Dist. Pa. June 5, 1997); and Christopher Allen M.D., et al., v. Washington Hospital, et al., Docket No. 96-1950 (West. Dist. Pa. Feb. 20. 1997).

III. PLAINTIFF'S BURDEN

To recover on a guaranty of non-discriminatory instruction, the plaintiff must establish that he is the holder and owner of the guaranty, and that relief is due and owing on the guaranty. At issue therefore is the plaintiff's 42 U.S.C. Section 1981 claim.

Again note: The defendant failed to raise any available defense. That is, they failed to file an Answer to the Amended Complaint, and with one lone sentence (page 15) of their 25 page original argument they acknowledged the claim but failed to identify a defense.

As amended by the Civil Rights Act of 1991, Section 1981 provides:

(a) Statement of equal rights

All persons within the jurisdiction of the United States shall have the same right... to make and enforce contracts... and to the full and equal benefit of all laws... as is enjoyed by white citizens...

(b) "Make and enforce contracts" defined

For the purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

c) Protection against impairment

The rights protected by this section are protected by non-government discrimination and impairment under the color of state law.

IV. PLAINTIFF'S UNDISPUTED CASE
(PROVED WITHOUT GENUINE AND MATERIAL DISPUTE)

The elements of a Section 1981 claim are: (1) the plaintiff is a member of a racial minority; (2) the defendant had the intent to discriminate on the basis of race; and (3) the act of discrimination concerned one or more of the activities enumerated in the statute. See Main v. Conaldson Lufkin & Genrette Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Green v. State Bar of Texas, 27 F.3d 1083, 1086 (5th Cir. 1994).

The first element of a Section 1981 claim is present; plaintiff alleges he is an African American. See Paragraph 11 Amended Complaint.

The second element is additionally present:

(1) He made application in Fall of 2000 to the defendant online law school, scored 14 of 15 correct on the entrance examination, passed the "psychological testing," and was advised by a decision maker, Matt McClanahann (Director of Enrollment) that he was "accepted for an October 2000 start as a third-year transfer student." See Paragraph 12 Amended Complaint.

(2) Soon thereafter, he received notice from the Administrative office (Matt McClanahann Director of Enrollment) that the law school "changed its mind." That is, the defendant law school communicated specifically "race (African American) didn't meet the planned demographics the administrative office wanted for the inaugural group of students." See Paragraph 13 Amended Complaint.

(3) The "change of mind" party-opponent admission was also communicated to a third party. See attached affidavit. See also Fed. R. Evid. 801(d)(2)(A). That is, under Rule 801 (n1), an out-of-court declaration is admissible against a party opponent if the declarant was an employee of the party, he made the statement while so employed and it concerned a matter within the declarant's employment. See Paragraph 14 Amended Complaint. And, because the statement was made by an individual in a management/supervisory position as part of his responsibility as liaison between the administration, tech folks, and the students (to "oversee what was done"), is an admission as to the corporate culture in which the decision to deny plaintiff the ability to make, perform, enforce, modify or terminate an educational contract (ability to enjoy the fruits of a contractual relationship) was made. See Fed. R. Evid. 801(d)(A).

Allegations sufficient to support the third element are also present. That is, the online law school denied him the right to "make and enforce" a contract because his race didn't meet the demographic the planned for the inaugural group of students. See affidavit attached to motion for Summary judgment. See also Paragraph 13 Amended Complaint.

Both the plaintiff and the defendant has introduced evidence demonstrating that the defendant:

(a) added an ex post facto attendance policy in October 2001 that directly impacted the plaintiff third-year of law study, but didn't apply to the third year of law study of non black comparators: Paula Shaver, Roberto Lee, Elazar Harel, Laura Collins, John Jascob, Farzad Naeim, Patrick T. Reilly, Sandusky Shelton, Chris Zouboulakis, and Ellen Bowden;

(b) requested a "Waiver of Maximum Clinical Hour Limit for Correspondence Law Study" that changed the 2002 fourth-year curriculum directly impacting the plaintiff (violated his State Bar of California approved study plan) but benefitted non black comparators;

(c) held a "Fourth year Forum" at the Los Angeles Marriott in October 2001 with the comparators, but didn't invite the plaintiff;

(d) offered a LEEP program and/or the mandated prerequisites for non black comparators but not the plaintiff;

(e) held alleged professor-led group chats for the 2001 Evidence course for non black comparators, but didn't invite the plaintiff

(f) retaliated against the plaintiff (12 month suspension), removal of free speech writings from a public board, refused to share test results (what was marked correct and/or incorrect), and the like;

(g) didn't adhere to the stated grievance procedure; and

(h) retaliated a second time (denied re- admission without comment).

See paragraphs 19 through 42 Amended Complaint. See also Defendant's Exhibit "E" of the Memorandum Supporting the "pre-amended complaint" Motion to Dismiss, i.e., OCR Report.

V. ARGUMENT

The defendant failed to file an Answer to the Amended Complaint and thus have not presented even a facially meritorious defense. Because of the defendant's failure to file an Answer (waiver of a defense), the court must accept as true the undisputed evidence that the plaintiff has provided in its Amended Complaint.

The plaintiff has unequivocally proved without any genuine and material dispute from the defendant, each of the essential elements for his 42 U.S.C. Section 1981 claim.

In regards to the "racial animus" link to the separate and unequal treatment that followed the Director of Enrollment's racial comments, the Third Circuit has held "that discriminatory comments by non-decisionmakers, or statements temporally remote from the decision at issue, may properly be used to build a circumstantial case of discrimination." Abrams v. Lightolier, Inc., 50 F.3d 1204, 1214 (3d Cir. 1995). That is, unequivocally the discriminatory (separate and unequal) treatment that followed the Director of Enrollment's statements goes much further than "a failure to notify a student of certain instructional programs," as suggested by the court.

That is, the Director of Enrollment's undisputed "racial animus" proves a circumstantial case of discrimination (defendant created conditions that were not equal to that afforded the non black comparators: Paula Shaver, Roberto Lee, Elazar Harel, Laura Collins, John Jascob, Farzad Naeim, Patrick T. Reilly, Sandusky Shelton, Chris Zouboulakis, and Ellen Bowden). See paragraphs 19 through 42 Amended Complaint. See also Defendant's Exhibit "E" of the Memorandum Supporting the "pre-amended complaint" Motion to Dismiss, i.e., OCR Report.

Because Mr. McClanahann's statement(s) haven't been disputed by the defendant, the court must find "no genuine and material dispute" of the essential elements of the 42 U.S.C. Section 1981 claim See also Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 641 (3d Cir. 1993) (court may consider as circumstantial evidence the atmosphere in which the company made its employment decisions); Roebuck v. Drexel Univ., 852 F. 2d 715, 733 (3d Cir. 1988)(discriminatory remarks of University President admissible since he had a significant influence on the attitudes and procedures of decisionmakers).

VI. CONCLUSION

1. The plaintiff has complied with the Court's instruction (see October 5, 2004 order). He has requested relevant information.

2. Discovery rules are to be construed liberally in favor of the party seeking discovery. Hickman v. Taylor, 329 U.S. 495 (1947).

3. Generally, discovery will be permitted "unless it is clear that the information sought can have no possible bearing upon the subject matter..." LaChemie Lacoste v. Alligator Company, Inc., 60 F.R.D. 164, 171 (D.Del. 1973).

4. In light of the averments of the Amended Complaint and the defendant's own Exhibits (Exhibit "A" attached to the discovery response and Exhibit "E" of the Memorandum Supporting the "pre-amended complaint" Motion to Dismiss, i.e., OCR Report), discovery must be granted.

5. In the alternative, the plaintiff's Motion for Summary Judgment should be granted.

In conclusion, Kaplan Executives also lied to the court (filed false affidavits claiming no Title IV funding) to avoid constitutional claims that they couldn't defend.....

aenglish

The Busheviks aren't seeking a popular mandate, they just want power. If they stay in power, they will move us closer to their ultimate goal, theocratic dictatorship. A second Bush administration would be even more radical and militaristic. Remember, this group is not reality-based.

Marc Brazeau

Two off the cuff thoughts in response to this and the preceeding post.

One of the things that has really been hammered into my head in the last year or so is how much people's politics are driven by temperment rather than principles. In fact, without that insight about themselves, most people use principles as sophistry to justify what their personal temperment leads them to believe.

I think the Bush administration has tapped in to the conservative temperment brilliantly while steering clear of conservative values that their funding constituency would find unprofitable.

While the war in Iraq betrays at least two conservative principles, it goes right to hawkish temperments and transforms the war on terror into something that fills the void left by the end of the Cold War for folks with temperments that feel more comfortable when the US has one big readily identifiable enemy.

Tax cuts may be fiscally irresponsible, and do nothing (short term) to bring about smaller government, that is only troubling to the conservative head, the heart thumps with pride and joy.

My second thought, that I've been mulling over for some time is wondering when thoughtful people at CATO and AEI etc. will wake up and realize that their salaries have been bought and paid for to provide ideological cover for a massive redistribution of wealth from most of us to the wealthy and not for any great love by their funders for the ideas of Burke, Hamilton, Smith, Carlyle, et al.

They seem to be starting to get a little pissed off.

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