[Marxism] Ward Churchill lawsuit begins

Debordagoria phantasmagorias at yahoo.com
Wed Mar 11 13:34:15 MDT 2009


Excellent article. It sounds to me like Churchill is going to lose.
Michael D.

--- On Wed, 3/11/09, Louis Proyect <lnp3 at panix.com> wrote:

> From: Louis Proyect <lnp3 at panix.com>
> Subject: [Marxism] Ward Churchill lawsuit begins
> To: phantasmagorias at yahoo.com
> Date: Wednesday, March 11, 2009, 9:56 AM
> http://chronicle.com/daily/2009/03/13370n.htm
> Wednesday, March 11, 2009
> Ward Churchill's Day in Court Arrives
> By PETER SCHMIDT
> 
> Denver
> 
> 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.

cut 
 
> 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 
> decisions.”
> 
> 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.

cut



      




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