[Marxism] Ward Churchill lawsuit begins
lnp3 at panix.com
Wed Mar 11 07:56:36 MDT 2009
Wednesday, March 11, 2009
Ward Churchill's Day in Court Arrives
By PETER SCHMIDT
The trial in Ward Churchill’s lawsuit against the University of Colorado
got under way here on Tuesday with lawyers for the opposing sides
painting starkly different pictures of both the controversial
ethnic-studies professor and the circumstances surrounding his dismissal
by the university in 2007.
In delivering their opening remarks in a crowded courtroom, both sides
agreed that the university had been under intense outside pressure to
fire Mr. Churchill as a result of the media uproar provoked by one of
his essays, in which he compared many of those killed in the September
11, 2001, terrorist attacks to a famous Nazi bureaucrat.
But, as they framed the arguments they intended to make during the
planned three-week civil trial in a state district court, the lawyers
made clear that they would concede nothing regarding their central point
of contention: whether the university’s decision to investigate, and
subsequently fire, Mr. Churchill was motivated by a desire to quell the
controversy over his essay—in violation of his First Amendment speech
rights—or whether it represented a justified response to alleged
academic misconduct on his part.
Standing near a three-foot-high stack of books representing Mr.
Churchill’s academic career, his chief lawyer, David A. Lane, told the
jury that the university’s findings of academic misconduct were a mere
pretense for sacrificing the professor to appease “the howling mob
calling for Ward Churchill’s head.”
“The mob mentality took over at the University of Colorado,” and the
university, lacking courage to stand up for Mr. Churchill, trumped up
charges to get rid of him, Mr. Lane said.
“He is now labeled. He is branded,” Mr. Lane told the overwhelmingly
young, predominantly-minority jury. He urged its members to “save the
First Amendment” by holding that the university acted wrongfully in
firing the professor.
A lawyer for the university, Patrick T. O’Rourke, told the jurors he
planned to demonstrate that a succession of university committees gave
Mr. Churchill a fair hearing, with the controversy over his essay
playing no role in their conclusions that he had engaged in fabrication,
falsification, improper citation, and plagiarism.
“Professor Churchill lost his job for one reason and one reason only,
and that is that he engaged in the worst kinds of academic fraud that
you can,” Mr. O’Rourke said.
“Research misconduct is not protected speech,” he said. “You should be
fired if you engage in it.”
Mr. Churchill’s lawsuit names as defendants, along with the university,
each member of the Colorado Board of Regents involved in the board’s
8-to-1 decision to fire him, arguing that they knew—or at least should
have known—they were violating his “clearly established” First Amendment
The jury was advised that it can expect to spend the next three weeks
sorting through university due-process procedure and hearing from a long
list of state and university officials, professors at the University of
Colorado at Boulder, and experts in Mr. Churchill’s field of Native
In beginning his remarks to the jury, Mr. Lane characterized Mr.
Churchill as a courageous champion of underdogs and the oppressed, and
as “the voice of Native Americans,” given his vast amount of scholarship
on that population. Invoking both the Roman Catholic Church’s
persecution of Galileo in 1616 over his astronomical observations and
the famous prosecution of John T. Scopes in 1925 for teaching evolution,
Mr. Lane said teachers and professors need to be free to express their
views “without fear that Big Brother is going to come down on them and
In an apparent effort to persuade the jurors to distance themselves from
the various university panels that passed judgment on Mr. Churchill, Mr.
Lane characterized the trial getting under way as Mr. Churchill’s first
chance at a fair hearing. “They put together committee after committee
of pet poodles,” he said. “You are here as citizens to decide this case,
not as a committee of bureaucrats.”
Mr. Lane also sought to defend, as misunderstood, the essay that had
made Mr. Churchill such a focus of controversy. In it, Mr. Churchill had
argued that many of the office workers killed in the World Trade Center
were not truly innocent because their companies’ activities promote
oppression abroad. “If there was a better, more effective, or in fact
any other way of visiting some penalty befitting their participation
upon the little Eichmanns inhabiting the sterile sanctuary of the twin
towers, I’d really be interested in hearing about it,” Mr. Churchill wrote.
Mr. Lane called the online article, written the day after the attack, a
“stream-of-consciousness essay” that invoked Karl Adolf Eichmann not
because Mr. Churchill saw many World Trade Center victims as Nazis, but
because he viewed them as people who commit evil by unthinkingly doing
their jobs. The essay’s basic point was “when you push people and you
push people and you push people, sometimes they push back,” Mr. Lane said.
An Academic Defense
Mr. Lane said Mr. Churchill’s essay “set off an explosion” when it first
drew media attention in 2005, with conservative media figures like Sean
Hannity and Bill O’Reilly, organizations like the American Council of
Trustees and Alumni, and politicians on both the state and national
levels calling for Mr. Churchill’s firing.
“The media was out of control. It was an absolute mob mentality,” Mr.
Lane said. “As you know, a mob mentality is no mentality whatsoever”
Mr. O’Rourke called the “little Eichmanns” reference in Mr. Churchill’s
essay “cruel and heartless.” But he argued that the controversy over the
essay played no role at any stage in the process in which the
professor’s scholarly conduct was evaluated.
Yes, Mr. O’Rourke said, Philip P. DiStefano, who was then the interim
chancellor at Boulder, launched his initial investigation of Mr.
Churchill to determine if his essay had overstepped the bounds of his
speech rights as a public employee. But Mr. DiStefano had fairly quickly
concluded that the essay was protected speech under the First Amendment.
The university started a second investigation of Mr. Churchill,
examining his scholarship, because in the course of the first inquiry,
several scholars in his area of expertise had raised concerns about his
work, Mr. O'Rourke said. The university is obliged to investigate such
allegations, he said, because people in academe build on one another’s
work, and scholarly misconduct “tears down what universities stand for.”
In a brief submitted to the court, the university argues that a ruling
holding the investigation of Mr. Churchill to be a First Amendment
violation “would deny public employers the ability to make informed
The brief cites a 2006 U.S. District Court decision involving one of Mr.
Churchill’s own supporters, a Colorado public employee who had claimed
he was subject to a workplace investigation after expressing support for
the controversial professor on a radio program. The judge in that case
had reviewed applicable legal precedents and concluded that the courts
had never viewed an investigation of an employee as, in itself, an act
that can be viewed as retaliatory.
In respect to Mr. Churchill’s dismissal, the university’s brief argues
that the law requires him to prove that his constitutionally protected
speech played a substantial role in the university’s decision, and not
simply that the chain of events leading to his dismissal was triggered
by his remarks.
Moreover, the brief argues, Mr. Churchill cannot prove retaliation under
the law by showing that some of the regents acted against him out of
retaliation, but instead must show that a majority of the board had such
an unlawful retaliatory motive. “Because the Board of Regents acts as a
whole, and no single regent has the ability to act on behalf of the
board, Professor Churchill cannot establish causation,” the brief says.
In addition, the brief argues, the courts—out of a desire to prevent
employees from manufacturing constitutional arguments to thwart their
managers—have called for defendants like the university to prevail if
they can show they would have taken a challenged action anyway. The
court, the brief says, must side with the university if it can show it
would have fired Mr. Churchill for alleged scholarly misconduct in the
absence of his controversial remarks about September 11.
Tuesday’s opening statements made clear that much of the trial will
focus on the university’s motivations in handling the misconduct
Mr. O’Rourke acknowledged that the uproar surrounding the essay caused
“massive disruption” at the university, monopolizing the attention of
the regents and Chancellor DiStefano as donors and lawmakers threatened
to withhold funds and parents threatened to withdraw their children. But
he denied allegations by Mr. Churchill’s legal team that the university
had gone looking for reasons to fire Mr. Churchill, combed through
everything he had ever written, or stacked the various panels that
weighed his case with his critics.
All of the faculty panels that handled his case—the Boulder campus’s
Standing Committee on Research Misconduct, an investigative panel that
the standing committee set up to examine his research, and a hearing
panel of the Faculty Senate—included people who had strongly defended
Mr. Churchill’s speech rights, Mr. O’Rourke said.
“There will be no evidence—zero—that any of these faculty members were
pressured in any way by a regent, by a chancellor, by Bill O’Reilly, by
a governor, to say that Professor Churchill engaged in research
misconduct,” Mr. O’Rourke said.
In a videotaped deposition given in January, Bill Owens, who was
Colorado’s governor at the time, admitted under questioning from Mr.
Lane to having repeatedly called for the university to fire Mr.
Churchill, and did not deny having said the university’s budget should
be put under scrutiny if he remained employed there.
But Mr. Owens also pointed out that Colorado’s governor has little say
over the state budget, which is mainly the creation of the state
legislature’s Joint Budget Committee. He said he never had “any ability
to really pressure or influence the regents,” who are elected, and “the
staff and faculty at the University of Colorado ignored me most of the
Part of the trial is expected to focus on the veracity of some of Mr.
Churchill’s scholarly statements, such as his assertion that the U.S.
Army distributed smallpox-infected blankets to American Indians.
Mr. O’Rourke told the jury that there is no reference at all to such
blankets in the book Mr. Churchill cites as his source. Mr. Lane argued,
however, this was because “the winners write history.”
Mr. Lane said he will show that plagiarism accusations brought against
Mr. Churchill stem from works he edited, rather than wrote, and that his
obligations as an editor did not involve verifying the authenticity of
the writings submitted to him.
Among the witnesses that Mr. Lane plans to call to the stand is Derrick
Bell, a visiting professor of law at New York University who plans to
recount his own highly publicized conflict with a former employer,
Harvard University, over academic freedom in the early 1990s.
The first witness Mr. Lane called on Tuesday was Evelyn Hu-DeHart,
director of Brown University’s Center for the Study of Race and
Ethnicity in America, who had worked with Mr. Churchill in a former
capacity as chairwoman of the University of Colorado’s Department of
Ethnic Studies. Under questioning from Mr. Lane, she characterized the
proposal of controversial ideas, and engagement in stirring debate, as
key parts of every ethnic-studies professor’s job description.
“I think the worst thing that can happen to a scholar is when no one
pays any attention to you,” she said.
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