Appeals Court Voids College Official’s Libel Suit Over Racism Charge : Constitution: An open letter accusing the man of being a bigot is an expression of opinion, justices rule.

Upholding the right to free speech on campus, a state Court of Appeal has ordered the dismissal of a libel suit against a University of California official who accused a colleague of being racist.

An appellate panel in San Jose ruled unanimously Thursday that the statements in an open letter written by the official were not assertions of fact, but expressions of opinion on a matter of public concern, and thus protected under the Constitution.

“Accusations of racism in a college community are more apt to be expressions of anger, resentment, and possibly political differences of opinion, than to be factual accusations intended to be taken literally,” Appellate Justice Eugene M. Premo wrote for the court.

The decision was issued at a time of widespread debate on college campuses over efforts to curb inflammatory speech. Some colleges have sought to impose codes prohibiting statements that demean or stigmatize others because of race, sex, religion or sexual orientation.

“This ruling is extremely important because it vindicates free speech on the campus and concerns a very important issue--racism on campus,” said Edward M. Chen of the American Civil Liberties Union of Northern California, an attorney for the defendant. “Had this case not been thrown out of court it would have really chilled debate over important and timely topics.”

Alfred Lombardo of Salinas, the attorney for Don Vandenberg, the official who brought the suit, said the ruling would be appealed to the state Supreme Court. Vandenberg, a strong believer in affirmative action, was the victim of an unfair attack that ruined his career, the attorney said.

“If you read that letter you would have thought he was in the Ku Klux Klan burning crosses on people’s lawns,” Lombardo said. “There was a certain element out for a witch hunt, and they found him even though he wasn’t the witch.”

The case arose after Vandenberg, bursar of Crown College at UC Santa Cruz, agreed to cancel a campus Filipino dinner celebration Dec. 7, 1988, after complaints were made over serving Asian food on the anniversary of the Japanese attack on Pearl Harbor. The original fare had been replaced with spare ribs, fried chicken and quiche.

A furor quickly arose and university Budget Director Victor Kimura wrote an open letter protesting the action, saying that Vandenberg and Crown College Provost Peggy Musgrave “are perfect examples of what enlightened people of all ethnic and cultural backgrounds define as ‘racist’ and ‘bigoted.’ ”

The letter said that in the view of a growing number of faculty, students and administrators, Crown College was “extremely racist”--and blamed Vandenberg and Musgrave for “seriously impeding” affirmative action on campus.

In the aftermath, Vandenberg received death threats and his car was painted with racial epithets. Vandenberg took a leave of absence and Musgrave resigned, citing lack of university backing against Kimura’s charges.

Vandenberg brought suit against Kimura and the university, alleging defamation and intentional infliction of emotional distress. Vandenberg said that as a result of the charges, his career had been ruined and he suffered “total psychiatric disability” that would prevent him from returning to his job.

Kimura sought dismissal of the case, but a Santa Cruz County Superior Court ruled that the case must go to trial. In a 25-page opinion by Premo, joined by Appellate Justices Christopher C. Cottle and Franklin D. Elia, the appeal panel held that the case must be dismissed.

The court concluded that under rulings by the U.S. Supreme Court and California courts, the statements in the letter were protected against a libel suit and could not be contested at trial.

“We hold that this unreasonable, emotional and angry letter cannot reasonably be understood as implying any facts, that it is more opinion than fact, and as such is not appropriate for jury determination,” Premo wrote.