[Marxism] Ward Churchill lawsuit begins

Louis Proyect lnp3 at panix.com
Wed Mar 11 07:56:36 MDT 2009

Wednesday, March 11, 2009
Ward Churchill's Day in Court Arrives


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.”

Invoking Galileo

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 
American studies.

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 
fire them.”

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.

Underlying Issues

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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