Thoughts in a Haystack

Ed Brayton at Dispatches From the Culture Wars has a post up about the trial court's decision in the case by the Association of Christian Schools International and Calvary Chapel Christian School against the University of California claiming that UC's rejection of various courses prepared and taught by the plaintiffs as "approved courses" for admission requirements is unconstitutional. The ACSI and Calvary Chapel had already lost their own motion for summary judgment against UC and UC's motion to dismiss the plaintiff's claim that the university's admission policies violated the free speech, free exercise of religion and equal protection provisions of the Constitution, as well as amounted to an establishment of a religion by the state, was granted.

That left only the plaintiff's claim that, even if the policies as written are not unconstitutional, they have been applied in an unconstitutional manner. At the request of both parties, UC was allowed, in an unusual procedure, to bring a second summary judgment motion seeking the dismissal of the remaining claim. In essence, the writing was on the wall and even the plaintiffs didn't want to go through the cost of a trial to just wind up thrown out of court.

Ed notes that the attorneys for the plaintiffs showed serious incompetence in the case. Specifically, the court explained that, as an educational institution, UC "necessarily facilitate[s] some viewpoints over others in judging the excellence of those students applying to UC" (e.g. Shakespeare is a better writer than Danielle Steele). That is permissible as long as such decisions are not based on animus and there was a rational basis for rejecting the course. Apparently, plaintiff's attorneys did not know that the case law includes an attempt to punish disfavored viewpoints within "animus." Quite apart from bringing into doubt their grasp of the language (okay, "animus" didn't start out as English but it's in pretty common use within it), that shows a lack of the basic lawyering skill of research.

But it didn't stop there. The court also excluded much of the plaintiff's expert testimony on the grounds that they disclosed the exact nature and scope of that evidence 10 months and more late, only after their claim that the admission policy was unconstitutional on its face was dismissed. Missing a discovery deadline in Federal court by a day is a major no-no for a lawyer, much less missing it by 10 months. What was their excuse? They did not prepare for the "as-applied" challenges because they did not expect the Court to reach those claims because they expected to win on the claim that the policy was unconstitutional on its face.

This raises a serious conundrum. If they truly expected to win on the facial claim, their competence at judging the strength of legal arguments is called into serious question since, in fact, the claim was so weak as to be dismissed on a motion for summary judgment, where the plaintiff's claim is given every benefit of the doubt. If they they knew it was weak, why weren't they preparing all the other possible avenues of attack as well? If they didn't pursue the "as applied" claims before because they knew that those claims were even weaker than the facial claim, why did they pursue them after the facial claims were dismissed? Maintaining frivolous claims can get you severely sanctioned in Federal court.

Their excuses have a distinct aroma of eau de canine about them.
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