Arizona State University announced a lawsuit settlement last week with Rae'Lee Klein, the student who became a symbol of "cancel culture" after being fired as radio station manager following a tweet. But the school left out a few key details. In its news release, ASU noted how Klein had asked for $500,000 plus reinstatement to her job, but that she would be paid a much lower amount: $7,040, which ASU described as "reimbursement for certain of her school fees." No other explanation for the amount was given.
Asked the reason for the specific dollar figure, Klein and her pro bono attorney, Jack Wilenchik, told Phoenix New Times the settlement was related to her decision to move out of student housing because of alleged harassment and threats.
"ASU seemed especially sympathetic to the fact that Rae’Lee had to move out of school housing due to harassment from other students and I think they agreed to that particular number because it was representative of the money paid for housing etc.," he said.
Wilenchik released emails marked "confidential" between him and ASU's attorney in the case, David Bodney, that show ASU considered the alleged threats in making its settlement decision. Asked to comment on Wilenchik's new context, ASU put out a biting statement that claimed Wilenchik had asked for attorney's fees despite his public statement of working pro bono, or free, for Klein, and insisting that the settlement amount "was not tethered to any allegation of harassment."
The squabble marked a bitter end to the high-profile higher-education saga that began with an opinionated tweet on August 29 by Klein about Jacob Blake, a Black man left paralyzed after being shot multiple times by Wisconsin police.
Harassment After Tweet
The Blake shooting sparked new anti-police demonstrations across the country, some of which turned violent. As public tensions soared, Klein, a student at ASU's Walter Cronkite School of Journalism and Mass Communication scheduled to graduate later this spring, and who was beginning her second year as station manager for student-run Blaze Radio, dropped her tweet.
"Always more to the story, folks," she wrote on her personal Twitter account on Saturday, August 29, linking to a New York Post article that described how Blake was an accused rapist. "Please read this article to get the background of Jacob Blake’s warrant. You’ll be quite disgusted."
Many of Klein's student peers expressed outrage at the tweet, with some deeming it "racist." Klein's six fellow Blaze Radio board members voted to remove her as station manager, but only ASU could actually fire her. An online change petition claimed that Klein had done something "harmful to not only journalists of color but nearly all journalists" at ASU and other schools.
But Klein found plenty of support, mainly from conservative pundits and advocates of free speech. She refused to resign her position and faced a barrage of hate and criticism.
"It was very scary when it seems like you have an entire population of kids you have to go to school with turn on you," she said.
Someone named Chase Hunter tweeted on September 4 to "hack" Klein and, she says, her family members. An anonymous critic named Vincent sent several F-bomb-laden messages that sounded threatening to her.
"FUCK YOU," one of Vincent's messages said. "Nobody supports you. Nobody. Leave Cronkite and Blaze and never come back. Everybody hates you. Go to hell."
"Cronkite is no place for racists, and we'll be sure to eliminate you if you think you still belong here," came another apparent student's message.
According to Wilenchik, another student allegedly said about Klein in a now-deleted tweet, "I wouldn't come back to campus, there’s a bounty on your head." (The student, whose name is being withheld by New Times, strongly denied writing or publishing any such message.)
At the time of the controversy, Klein had just returned from a summer in her native Wyoming. She soon decided her student housing was no longer safe and moved out.
Meanwhile, student experiences stagnated at Blaze Radio because the board canceled all programming as leverage to make Klein quit. Kristin Gilger, Cronkite's acting dean, told Klein that it was "not an option" to remain as station manager and gave her other choices, including starting her own radio station.
Klein filed her federal complaint in October against the Cronkite school, ASU, the Arizona Board of Regents, and Gilger, alleging that ASU and Gilger had violated her First Amendment rights.
In December, U.S. District Judge Steven P. Logan tossed the case against all of the defendants except Gilger, saying the court had no jurisdiction over ABOR, ASU, or Cronkite due to the legal concept of sovereign immunity. While the case against Gilger continued in federal court, Klein threatened to file a lawsuit under Arizona laws. With Wilenchik's help, she submitted a notice of claim to the state in January seeking $500,000 and reinstatement of her job.
After ASU announced the settlement last week, Wilenchik and Klein declared victory: "Rae’Lee Klein is one of a new brand of heroes who, by simply doing their jobs or speaking their minds, found themselves targeted by this out-of-control culture that harasses, boycotts, or cancels anyone or anything that dares to challenge it," Wilenchik said in a prepared statement. "Like an increasing number of the victims of this new leftwing McCarthyism – stood her ground, she fought back, and she won."
"Although Arizona State continues to deny any wrongdoing, or infringement of my 1st Amendment Rights," Klein wrote in her own statement, "the settlement illustrates an understanding of their misjudgement and lack of support. College is supposed to be a place of free thought and free speech for all, regardless of political or personal beliefs. The university did not stand up for those ideals, and instead let the culture of harassment dictate the success of those who challenge them."
ASU has contended all along that Klein wasn't fired for her tweet, and that no First Amendment issue was at stake. Lawyer David Bodney of Ballard Spahr LLP, (whose clients include the Arizona Republic), said it was Klein's "conduct after the tweet, which demonstrated her inability to lead the station, that ultimately led to her removal."
Asked to elaborate, Bodney added, "I was referring to her post-tweet interactions with the student members of Blaze Radio, some of which is mentioned in The Republic’s [February 25] article."
Yet the article doesn't mention much in the way of post-tweet interactions, except to point out that after fellow students raised objections to the tweet, Klein defended it "as sharing truthful information and an additional perspective."
Wilenchik admitted to New Times that it hadn't been realistic to think Klein could force her way back into the job "and work for people who don't support her." Getting a monetary settlement was the best option, he said.
The resulting settlement was more than seven times the penalty under Arizona law for a free speech violation, Wilenchik said last week. But as he and ASU explained this week, the money is a refund for student housing and meal costs that Klein had prepaid but didn't use after moving because of threats.
Wilenchik said he has to "give ASU some credit" because officials "did appear to be genuinely concerned about the harassment and implied that [they] didn’t know about it either."
In a December 24 email shared by Wilenchik marked "Confidential — Rule 408," a court rule that relates to the privacy of settlement negotiations, Bodney told Wilenchik he's related a settlement proposal to ASU and "they are gathering information" with the proposal in mind.
"As per my previous email," Bodney continued," ASU is concerned about Ms. Klein’s claims of harassment and intends to look into them irrespective of whether we are able to settle the litigation. To that end, with respect to this past semester (Autumn 2020), please let me know: the date(s) when Ms. Klein was harassed; the name(s) of the person(s) who harassed her; and the date when she moved out of her student housing."
Bodney clarified a few days later that "based on Plaintiff’s settlement demand, it would be helpful to know the date when she moved out of her student housing."
Klein told Bodney she "never went back" to her dorm after the harassment began over her tweet but moved out on August 31.
ASU officials released a lengthy response on Monday to New Times after being asked about the harassment angle, starting with a dig on Wilenchik for asking for "upwards of $20,000 to cover his attorney's fees."
Bodney had to remind Wilenchik that he had already declared publicly he was handling Klein's case for free, ASU explained. Wilenchik then said the settlement wasn't about his fees, but about Klein "having to move out of her housing because of harassment. This was the first that ASU had heard of this," the March 1 statement says.
Bodney encouraged Klein to file an official complaint about the harassment, but she never did.
"ASU was nevertheless willing to settle this case by giving her back some of her money in an amount equivalent to what she had previously paid for fall semester housing and for a meal plan she never used," the statement says.
Negotiations continued about what the two sides would tell the public about the payment, and they agreed the line would be that it was to "reimburse certain of Klein's school fees," according to ASU. "The amount was not tethered to any allegation of harassment."
A settlement payment that was actually just a refund of Klein's own money "made eminent sense," the statement says.
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