How to Litigate the Left-wing Riots

The Right is wasting opportunities to bankrupt left-wing organizations that train or encourage protestors to commit crimes, including blocking traffic, that result in injuries to third parties.

The political education program in Portland-area school districts could be described as a ‘school to radicalism pipeline’ … a training ground for child soldiers.

— Christopher Rufo, America’s Cultural Revolution

Universities, high schools and other organizations that teach revolutionary criminal activism to students, who go on to commit legally actionable offenses based on their teaching, can be held financially liable for resulting injuries to third parties. Just as far-right organizations have been found liable for encouraging criminal activism among members who go on to commit crime, far-left organizations of any sort can be held liable for actuating criminal activism in the service of radical ideologies. The legal precedents already exist.

In 1987, Morris Dees of the Southern Poverty Law Center (SPLC) began using a new legal strategy to successfully sue hate groups for criminal acts of violence committed by their members. The judgements often bankrupted the defendant organizations. Dees’ strategy relied on agency theory, which asserts that an employer has legal liability for the acts of an employee when the employee performs their duties in line with the interests of the company. However, Dees applied agency theory outside of its traditional commercial context to non-profits and other organizations. In various cases, he persuaded jurors that if the members of an organization commit a crime consistent with that organization’s interest, then depending on the relevant facts, that organization has engaged in civil conspiracy or aiding and abetting, or both.

Proving civil conspiracy and suing for damages requires showing that a group of defendants had a plan of action to commit a crime which inflicted foreseeable injury on third parties. The existence of a conspiracy between the officials or administrators of an organization and their agents can be inferred as long as the nature of the relationship allowed for coordinated planning, and the nature of the crime was consistent with the organization’s purpose.

Suing for damages from aiding and abetting also requires foreseeability of injury to a third party, but does not require a plan of action, only that training or encouragement was intended to further a crime of the nature that the agent committed – even if the crime occurred some time after the training or encouragement.

The foundational case was Donald v. United Klans of America (UKA). In 1981, two members of the UKA murdered a random black man in retaliation for the failure of a jury to convict another black man in the killing of a white police officer. The two UKA members had already been convicted for the murder, but the UKA itself was still in operation, and Donald’s family was left without compensation.

Three years later, Dees, representing Donald’s mother, brought a civil suit against the UKA for conspiracy to commit murder. In order to establish that the UKA was institutionally violent, Dees called witnesses Rowe and Ward, who recounted past violent sentiments, violent acts and justification for such acts by UKA members and its leadership. Their testimony demonstrated that although the UKA constitution contained no explicit encouragement of violence, one of the organization’s main purposes was to secure “justice” for whites through violence and other criminal acts against blacks. Dees also showed that the murderers were acting in accordance with this purpose and that, although they had received no direct orders from their regional headquarters, a conspiracy could be inferred from a semi-military chain of command within the UKA. As Dees has asserted, “Trainers need not know what crimes will be committed to be liable for them, but only that their efforts are preparing foot soldiers to commit violence.”

First Amendment defenses are usually unsuccessful in such cases. While the Supreme Court in Brandenburg v. Ohio (1969) ruled that organizations can advocate for violence and lawless action in the abstract, it also wrote that the US Constitution does not protect “advocacy of the use of force or of law violation … where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” When considering cases of aiding and abetting, if the help or encouragement is more similar to training for lawless action than abstract advocacy of violence, then First Amendment protections are not even a consideration.

What about sovereign immunity to lawsuits against the state? This government defense is overcome in the situations that will be described below, because in almost all states immunity is waived by statute in cases where the government deliberately undertakes an action in bad faith, or where employees are negligent.

But are ideologies that have a history and acceptance of criminal and violent activism really being advanced and implemented in US public high schools, as they were in the backrooms of the UKA? Yes they are, at least two of them. In his new book, America’s Cultural Revolution, Christopher Rufo describes the pedagogical influence of Paulo Freire’s book, Pedagogy of the Oppressed.

The schools of Portland have self-consciously adopted Paolo Freire’s Pedagogy of the Oppressed as their theoretical orientation, activated it through a curriculum saturated in critical theory, and enforced it through the appointment of de facto political officers within individual schools under the cover of “equity and social justice”. The internal documents from three local districts – Tigard-Tualatin School District, Beaverton School District, and Portland Public Schools – reveal this revolutionary shift. Administrators and teachers have combined theory, praxis, and power in service of left-wing political activism.

Pedagogy of the Oppressed explicitly advocates for revolutionary activist violence:

Violence is initiated by those who oppress, who exploit, who fail to recognize others as persons – not by those who are oppressed, exploited and unrecognized. Consciously or unconsciously, the act of rebellion by the oppressed (an act which is always, or nearly always, as violent as the initial violence of the oppressors) can initiate love. Whereas the violence of the oppressors prevents the oppressed from being fully human, the response of the latter to this violence is grounded in the desire to pursue the right to be human.

The internal documents mentioned by Rufo provide evidence of conspiracies (or acts of aiding and abetting) to guide, indoctrinate and pressure children into radical criminal activism based on Freire’s ideas – without parents’ awareness. For example, they show that critical pedagogist Zinnia Un was hired during the Floyd riots to head the new Department of Equity and Inclusion in the Tigard-Tualatin School District. She created a revolutionary curriculum based in part on Freire’s ideas. Un also appears to have incorporated extreme elements of a second explicitly activist ideology taught in Portland’s public high schools, critical race theory (CRT), encouraging white students to analyze their “covert white supremacy” in order to eradicate from their identities the supposed pathology of “whiteness”. Students are trained to become “accomplices for anti-racist work” and to participate in protests after developing “solidarity” with “Black rage”.

In the Beaverton School District, students are now introduced to revolutionary concepts beginning in kindergarten. This radical curriculum is developed at higher grade levels, with students being told that, in fighting against “whiteness”, “they must embrace the principles of ‘revolution’, ‘resistance’, and ‘liberation’”. Revolutionary activism, almost by definition, nearly always involves criminality. Classroom lessons use pictures of child activists and the Black Power fist and Black Lives Matter (BLM) protests.

The internal documents describe other similar curricula being taught at other elementary and secondary schools throughout the city, and Rufo details various acts of student criminal activism that may have directly resulted from these ideas. For example, the Youth Liberation Front (a revolutionary group founded by teenagers that recruited from Portland area high schools) engaged in, “rioting, burglary, property destruction, throwing rocks and bottles at police officers, brandishing a fake handgun at a crowd, setting fire to the police union headquarters, and stomping a man unconscious.”

Of course, the activism need not be violent, as long as it breaks the law and inflicts damages on third parties. Consider Rufo’s description of a Portland protest: “At Ockley Green Middle School, the ‘police abolitionist’ Teressa Raiford held an assembly on social justice and led hundreds of students into the streets to perform a ‘die-in’ in the middle of the intersection – without the permission or notification of their parents.” If schools trained their students to block intersections – and resulting traffic jams caused people to miss work, or prevented them from getting timely access to medical treatment – then any number of lawsuits could be brought against the school district.

There are other similarities between circumstances surrounding the activities of the UKA and those related to Portland area school districts that would tend to support lawsuits alleging conspiracy or aiding and abetting. For example, the UKA planned to provide its members who committed criminal activism with legal assistance. During questioning, Ward “recalled a telephone conversation … during which the Imperial Wizard told Ward that Klansmen implicated in shooting incidents would receive legal and financial aid.” Dees used this fact as evidence to support a claim of aiding and abetting.

Likewise, critical race theory co-founder Richard Delgado, in his recent book Introduction to Critical Race Theory: Fourth Edition, envisions lawyers providing legal assistance to criminal activists:

The white establishment may resist an orderly progression towards sharing power, particularly in connection with upper-level and technical jobs, police agencies, and government. As happened in South Africa, the change may be convulsive and cataclysmic. If so, critical theorists and activists will need to provide criminal defense for resistance movements and activists, and to articulate theories and strategies for that resistance.

In the eyes of Delgado and other critical race theorists, the recent SCOTUS ruling outlawing affirmative action may well represent major white resistance to sharing power. If that is the case, then following Delgado’s CRT activist framework, in the years to come Americans can expect even more CRT-inspired criminality from students. Lawyers may then be able use statements such as the ones quoted above as evidence of criminal conspiracy, or of aiding and abetting, by critical race theorists and the educational institutions or law firms that employ them.

And just as with the UKA, there is a history of contemplating violent solutions in the service of “justice”. For example, in 1989 Derrick Bell wrote a counterstory, published in the University of Michigan Law Review, about a bombing that results in the mass murder of all of Harvard’s black professors and its white president, who are meeting to discuss the university’s ineffective affirmative action policies. The killings lead to race riots. In Bell’s account, “[T]he ensuing racial violence with its threat of social disorder prompted renewed commitment to affirmative action enforcement by long-dormant government agencies.” And in books like The Rodrigo Chronicles, Delgado’s fictional interlocutor, Rodrigo – whom Delgado describes as his “alter ego” – expressly contemplates carrying out terrorist acts to correct what he perceives to be racial inequities in US society.

What’s more, the hierarchical bureaucracies in state public school systems and other educational institutions are similar to the UKA’s organizational command structure. One teacher in the Portland public school system reported that she had been told by administrators that if she did not teach extreme ideas in her classroom, she could be in danger of losing her job. Educational administrations are responsible for mandating that the values of revolutionary activist social justice be taught to students, which could support claims of third-party liability for aiding and abetting or conspiracy, in particular during times of revolutionary upheaval, like the Floyd riots.

Rufo explains that in 2017, Oregon passed a bill mandating K-12 ethnic studies programs instill the radical race-based precepts of “subversion, resistance, challenge, and perseverance,” as part of the fight for “social justice”. Justifications for political violence appeared directly on several elementary schools’ websites in the city, with ideas like, “The root cause of every riot is some kind of oppression. If you want to end the riots, you have to end the oppression.” And in California, the state Board of Education approved in 2021 a required high school ethnic studies curriculum based to a large extent on Paulo Freire’s ideas.

The same logic that applies to high schools also applies to universities, where curricula may be even more oriented toward criminal praxis. Take, for example, the 2017 student uprising at Evergreen State College in Washington state. Professor Bret Weinstein refused student demands to absent himself from campus because he is white (Jewish, to be specific – at least one student referred to him as a ‘yid’). A campus police officer informed him that the college president had ordered all officers to “stand down”, even though the police knew it was likely that a potentially dangerous student mob was looking for Weinstein. Weinstein said that administrators, “were quite responsive to the protesters’ demands, even when those demands were accompanied by threats of violence.”

In a documentary where Weinstein and his wife are interviewed about the event, he identifies with the feelings of Jewish mathematician Benoit Mandelbrot – who, while fleeing the Nazi’s, had the sense of being “a hunted civilian”. Weinstein’s wife says he was more shaken than she had ever seen him. Weinstein’s intense emotional distress may have been legally actionable.

But was the student uprising at Evergreen State the result of students’ own half-baked ideas, or was it the result of a revolutionary activist curriculum that the administrators and teachers at Evergreen taught them? Fortunately, one of the student protestors who invaded the professors’ weekly faculty meeting answered this question quite clearly: “Didn’t you educate us on how to do shit like this? It was you that taught us that in class. Right, though? You taught us to go and change the world. Ain’t that what you all sell on that Evergreen State College page? To when shit is wrong we’re supposed to try to change it? So why you all in here eating cake and chewing?”

What exactly was Evergreen State selling on its webpage? Was it any different from what educational institutions and departments at the secondary to university levels sell on their webpages today?

Counter-revolutionary activists like Rufo are seeking ways to deradicalize private colleges and universities, which is difficult to do without a sympathetic Republican administration. Lawsuits, however, carry the threat of potentially huge monetary penalties and only depend on the judiciary. They may therefore be more effective than legislation and less dependent on changing political winds.

One writer has been keeping up with the paltry punishments that BLM protestors are now receiving after convictions for very serious crimes like attempted murder and homicide. A history of BLM’s support for violent Hamas extremism, and its close ties with that organization is further evidence that BLM is institutionally violent, which would support claims of conspiracy or aiding and abetting in criminal activism. In some instances, lawsuits based on gross negligence may also be appropriate.

Why haven’t organizations like the SPLC been more vigilant about rooting out left-wing extremism? A search of the SPLC’s website for occurrences of the word ‘Nazi’ yields 3237 results, and the word ‘Klan’ 1492, but there are only 28 occurrences of the word ‘Bolshevik’, and 434 occurrences of the word ‘Communist’, nearly all of which are mentioned in articles critical of various right-wing organizations and policies. When one reporter asked why this is so, a representative of the SPLC admitted that, “We’re not really set up to cover the extreme Left.”

Litigators should file lawsuits and develop caselaw that will reframe what constitutes criminal activism and hate group litigation to bring more balance to our ideological and political culture.

This article was originally published on the Aporia Magazine website.