September 2009
The University of Colorado won just about everything it wanted, and Ward
Churchill lost just about everything he wanted, in a ruling Tuesday by a state
judge in Colorado.
Judge Larry J. Naves ruled that the University of Colorado Board of Regents had
“quasi-judicial immunity” when it voted to fire Churchill from his tenured
position teaching ethnic studies, after faculty panels found that he had
committed multiple instances of research misconduct. Naves vacated an April
ruling by a jury in the case that found that Churchill had been inappropriately
fired. Based on that ruling, Naves could have ordered Churchill reinstated or
ordered Colorado to pay him — issues that would have been moot given that Naves
vacated the jury’s decision. But Naves went on and said that, even based on the
jury’s findings, Churchill was not entitled to his job back, or to any money.
And Naves went out of his way to stress that he found the university’s findings
of misconduct credible, and that the return of Churchill to the faculty would be
damaging.
Not surprisingly, the university praised the decision and Churchill denounced
it. Phil DiStefano, chancellor at the university’s Boulder campus, said in a
statement: “The judge’s decision today is a victory for faculty governance. It
reinforces the idea that faculty set the standard for academic integrity on our
campus and all campuses across the country. His decision reinforces the notion
that faculty establish research standards, abide by them and enforce them.”
In an interview Tuesday evening, David Lane, Churchill’s lawyer said that he
would “absolutely, positively appeal.” The decision, Lane said, “sends out to
America a very, very bad message that if the University of Colorado fires you
because they don’t like what you said, don’t look for justice from this court.”
Lane said that an appeals court decision would probably be around a year away —
extending the life of a controversy that started in 2005.
Ward Churchill started teaching at Boulder in 1978 and won tenure in 1991. The
author of numerous books and essays about Native American history, Churchill
uses fiery rhetoric to describe the wrongs committed by the United States. In
the years prior to 2005, Churchill became a popular figure on the campus lecture
circuit — although he tended to attract attention from those who shared his
views, and he was not widely known outside academe.
Then he accepted an invitation to speak at Hamilton College, a liberal arts
college in upstate New York, in early 2005. Some professors there circulated
some of his writings, including an essay with the now notorious remark comparing
World Trade Center victims on 9/11 to “little Eichmanns.” Within days, the
controversy spread, with talk radio hosts, politicians, and the survivors of
9/11 victims expressing shock that a man with such views would be given a
platform on a college campus. Hamilton initially stood by its invitation, on
academic freedom grounds, but in the end called off the appearance, citing
threats of violence.
At that point, the discussion shifted to Colorado, where numerous politicians —
from the governor on down —were demanding that Churchill be fired. After several
weeks of reviews, the university announced that the 9/11 essay could not be
grounds for dismissal, given Churchill’s rights to free expression and academic
freedom and the lack of any evidence that his political views interfered with
his teaching. But at the same time, Colorado announced that Churchill could be
investigated and possibly fired for scholarly misconduct. That was because —
once the controversy broke — scholars, journalists and others checked out
Churchill’s scholarship and quickly heard from researchers who said that
Churchill had plagiarized or distorted their work.
Colorado then started a series of investigations in which various faculty panels
examined the charges and considered potential punishments. While the panels were
far from united in urging Churchill to be fired, there was consensus that he was
guilty of repeated, intentional academic misconduct — plagiarism, fabrication,
falsification and more. That was May 2006. After still more reviews, the
University of Colorado Board of Regents fired him in July 2007. Churchill
maintained throughout that he was a victim of his politics — although at least
some of those who accused him of inappropriately using their academic work are
scholars of Native American history who share his belief that those they studied
were treated in horrific ways.
Churchill’s suit charged that political concerns dominated the review of the
charges against him. Significantly, under Colorado law, the jury that found in
his favor did not have to believe that he never committed research misconduct
(although he has repeatedly denied doing so). Rather the standard was that to
find in Churchill’s favor, the jury had to determine that his political views
were a substantial or motivating factor in his dismissal, and that he would not
have been fired but for the controversy over his opinions.
The jury’s ruling set the stage for a hearing last week, at which Judge Naves
heard testimony from Churchill’s supporters that he should get his job back, and
from university officials arguing against that.
Naves started his ruling with an analysis that led him to throw out the jury’s
findings. He noted that the university had preserved a defense of legal immunity
when it argued the rest of the case, because that issue is decided by a judge
not a jury. He then reviewed why he viewed the Board of Regents as immune in the
case, as a “quasi-judicial body.” Churchill maintained that the entire process
of reviewing the allegations against him was tainted, including the final review
by the Board of Regents. But Naves said that the procedures in place — multiple
layers of review, the chance for Churchill to question witnesses, introduce
evidence, receive guidance from a lawyer and so forth — both provided for a
reasonable process and gave the regents protection from being sued.
Then Naves turned to the issue of whether Churchill should get his job back.
Naves stressed the importance of colleges and universities making their own
determinations on academic matters, including research misconduct. He said that
faculty committees, not courts, should “define the standards of academic misconduct.”
Naves said: “I conclude that reinstating Professor Churchill would entangle the
judiciary excessively in matters that are more appropriate for academic
professionals.”
While leaders of the ethnic studies program backed Churchill’s return, Naves
said that their program would be damaged with Churchill back on the faculty.
“The evidence was credible that Professor Churchill will not only be the most
visible member of the Department of Ethnic Studies if reinstated, but that
reinstatement will create the perception in the broader academic community that
the Department of Ethnic Studies tolerates research misconduct. The evidence was
also credible that this perception will make it more difficult for the
Department of Ethnic Studies to attract and retain new faculty members. In
addition, this negative perception has great potential to hinder students
graduating from the Department of Ethnic Studies in their efforts to obtain
placement in graduate programs,” Naves wrote.
More broadly, Naves said that “I also fully understand” the concerns expressed
by other faculty members that Churchill’s presence on the faculty would make it
difficult to hold students to “high standards of honesty in research and
writing.”
Finally, Naves rejected the idea that Churchill deserved compensation for being
dismissed as he was. Naves wrote: “Professor Churchill’s own statements during
the trial established that he has not seriously pursued any efforts to gain
comparable employment, but has instead chosen to give lectures and other
presentations as a means of supplementing his income. Reportedly, he even
‘received a few job offers’ that he declined to pursue.” Noting that Churchill
has continued to give lectures and publish, Naves questioned whether Churchill
has been harmed by what happened.
Lane, Churchill’s lawyer, said that the comments by the judge “simply show the
world that he is a Churchill-basher just like everyone at CU.”
Cary Nelson, national president of the American Association of University
Professors, said that “there are so many problems with the judge’s decision that
it would require a full essay to respond to them.”
To
cite one example, he noted that Naves noted critical statements Churchill made
about the university administration to argue that relations between Churchill
and the university were so bad that he couldn’t return to the faculty. “That
shows remarkable ignorance about what faculty members conventionally say about
administrators and their impact,” Nelson said.
Ultimately, Nelson said, the jury recognized “that the university president’s
decision to fire Churchill was fruit of the poisoned tree — the public outrage
over Churchill’s extramural speech. But it was the judge’s responsibility to
honor the jury’s decision by reinstating him.”
But DiStefano, the Boulder chancellor, said in his statement that the ruling was
a victory for professors. “The judge elected not to expose us to a double
standard. Professor Churchill was found to have committed research misconduct by
a number of committees. The judge recognizes that we cannot hold one faculty
member to a different standard than we hold the rest of the faculty and the
students. To have that double standard would have been very harmful to the
campus,” he said. “This is not an issue about free speech or about academic
freedom. This is an issue about research misconduct.”
Inside Higher Ed. July 8, 2009.
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