[News] New Assault on Critical Thinking and Academic Dissent in Ward Churchill Case

Anti-Imperialist News news at freedomarchives.org
Tue Aug 4 13:12:09 EDT 2009

New Assault on Critical Thinking and Academic Dissent in Ward Churchill Case

by Reggie Dylan / August 4th, 2009

In early April, after a month-long trial, a jury 
in Denver concluded that Ward Churchill had been 
wrongfully fired from his position as Professor 
of Ethnic Studies at the University of Colorado 
(CU). He was dismissed in retaliation for a 
controversial essay he wrote after 9/11­which was 
critical of the U.S., and not because of academic 
misconduct as the university claimed. The jury 
verdict was a welcome development, and a setback 
to the forces who are working to suppress 
critical thinking on campuses, and in society. But this battle is not over.

On July 7, Denver Chief Judge Larry Naves 
vacated­threw out­the verdict and issued a ruling 
that gave CU everything they wanted. Professor 
Churchill is not to be reinstated, and he is not 
entitled to lost earnings or a financial 
settlement. This ruling by Naves is as ludicrous 
as it is utterly baseless; it represents a 
decision to crudely step in to ensure that CU prevails, in spite of the truth.

Background to a Witch-hunt

This case began in early 2005 when Ward Churchill 
became the target of a highly orchestrated, 
nationwide right-wing political witch-hunt after 
an essay he’d written shortly after 9/11 came to 
light. The attack on Churchill became the focal 
point of a major assault on critical thinking and 
dissenting scholars in academia that continues to 
this day. A chilling message spread to faculty 
across campuses to “watch out!”­criticism of past 
or present U.S. crimes could threaten your 
reputation, your job, even your career.

Faculty, students and others stepped out to 
oppose the demand for Churchill to be fired, 
seeing it as a key battlefront in the growing 
push by powerful right wing forces to use this 
controversy to bring sweeping changes to 
university life, and intimidate and silence other 
progressive and radical scholars. University 
faculty wrote letters and op-ed pieces for 
newspapers and magazines, and circulated 
statements signed by hundreds and hundreds of 
professors in support of Churchill. A full page 
ad appeared in the New York Review of Books 
signed by many well known public intellectuals, 
including Noam Chomsky, Howard Zinn, Richard 
Falk, Derrick Bell, Rashid Khalidi, Mahmood 
Mamdani, Irene Gendzier, and others calling on CU 
to stop their push to fire him.

The university first tried to fire Churchill for 
the content of his essay, but then decided it 
would be wiser to switch gears and go after him 
another way. They combined several mainly old 
complaints about aspects of Churchill’s 
scholarship, and even solicited another; formed a 
faculty committee to investigate headed by a 
former prosecutor known at the time to be biased 
against Churchill, and used the committee’s 
findings of alleged research misconduct to fire him.

The verdict confirmed Churchill’s contention that 
this investigation of his scholarship, under a 
microscope, should not have taken place, and was 
for the sole purpose of finding a pretext to fire 
him for his scholarship and political views. 
Prominent scholars­such as Noam Chomsky and 
Stanley Fish­have made the point that no 
researcher’s work could stand up to this kind of scrutiny.

“Quasi-judicial Immunity”

The court ruling, in large part lifted 
word-for-word from the motion by CU’s attorneys, 
accepts CU’s claim that the Regents hold 
“quasi-judicial immunity,” as a matter of law. In 
essence this means that the school’s governing 
board can do practically anything, including fire 
faculty members for speech they find offensive, 
and the faculty have no remedy, as long as the 
university’s formal procedures are followed in 
firing them. (Find all of the court papers 

By making this ruling after the verdict has been 
reached, Naves is openly granting “quasi-judicial 
immunity” to a body whose members are known to 
have publicly denounced the “litigant” before 
trial; admitted being subjected to pressure to 
get rid of Churchill; and were found to have 
taken unconstitutional action in order to punish 
the exercise of First Amendment-protected speech. 
What does it mean for a powerful body to be given 
this kind of immunity for highly political 
decisions over the lives and careers of 
university faculty and scholars, including 
tenured faculty? This, and some of the points 
that follow, are taken from a letter opposing the 
ruling that is being circulated in the academic 
community by the Defend Dissent and Critical Thinking in Academia network.

Brian Leiter, philosopher and legal scholar, 
currently John Wilson Professor of Law at the U. 
of Chicago, described the decision as having 
“possibly catastrophic implications” in his 
on-line Report (Brian Leiter’s Law School 
Reports), titled: 
State University Faculty in Colorado: You Have 
Almost No Remedy if the Regents Violate your 
First Amendment Rights.” But the impact of this 
ruling, if it is allowed to stand, will be felt by faculty far beyond Colorado.

The judge provides numerous different, 
conflicting arguments for his decision, no doubt 
hoping to make it unlikely to be overturned on 
appeal. That’s why, having first thrown out the 
jury’s verdict, Naves then goes on to invoke it. 
He claims that the jury’s $1 damage award compels 
him to deny reinstatement. “If I am required to 
enter an order that is ‘consistent with the 
jury’s findings,’ I cannot order a remedy that 
‘disregards the jury’s implicit finding’ that 
Professor Churchill has suffered no actual 
damages that an award of reinstatement would 
prospectively remedy.” This argument is 
completely baseless. The jury’s verdict that 
Churchill was fired in violation of his protected 
speech­which can only rightfully be remedied by 
returning him to his job­is in no way mitigated 
by the amount of the damage award. The argument 
that the amount of damages determines whether a 
constitutional violation should be remedied is absurd.

As it turns out, the judge’s attempt to interpret 
the jury’s findings is also contradicted by one 
of the jurors, who has written an affidavit filed 
with Churchill’s response to the ruling. In it, 
the juror explains, “It was difficult for us to 
put a value on Churchill’s emotional distress, 
and in the end, we listened to Churchill’s 
testimony that the case was not about the money 
and hoped that the Judge would give him his job 
back or give him some compensation.”

In search of yet another argument for overturning 
the meaning of the verdict, the ruling claims: 
“The jury determined only that the University did 
not prove that a majority of the Regents would 
have voted to dismiss Professor Churchill in the 
absence of his political speech. That is a very 
different question than whether Professor 
Churchill engaged in academic misconduct
” The 
judge argues that despite the verdict, Churchill 
committed such serious academic misconduct that 
it would be wrong and harmful to the university 
to reinstate him. As Churchill’s attorney David 
Lane’s Reconsideration motion puts it, how can 
there be no evidence of academic misconduct 
serious enough to justify Churchill’s firing, but 
there is sufficient academic misconduct in the 
court’s mind to deny reinstatement?

At trial, the jurors heard testimony by experts 
in American Indian Studies and Indian Law highly 
critical of the findings of the faculty 
investigative committee, as well as by witnesses 
for the university, and that was a critical part 
of the basis for their conclusions. Again, as the juror’s affidavit states:

A majority of the Jurors thought that the 
academic misconduct charges were not valid. We 
felt that the procedures afforded to Churchill by 
the University of Colorado, before his 
termination, were biased. In fact, during our 
deliberations, we listed every witness that 
testified at trial, and determined that the 
majority of the University of Colorado’s witnesses were biased and dishonest.

Jonathan Turley, George Washington University Law 
School professor and frequent national media 
commentator, called the refusal to reinstate 
Churchill “bizarre.” He blasted Naves’ final 
argument that puts the blame for refusing 
reinstatement on Ward Churchill’s statements 
showing “hostility to the university”:

The university opposed the reinstatement on the 
ground that, if he returned, the relationship 
‘would not be an amicable one.’ That was obvious 
from the jury verdict. However, that is like 
using the bias as a defense. First, the 
University is found to have improperly terminated 
Churchill due to its hatred for his views but 
then successfully blocks reinstatement due to its hatred of his views.


There is a great deal at stake for academia and 
for society overall right now in upholding and 
defending this verdict, and deepening its 
lessons. An ugly, high-stakes public witch-hunt 
by dangerous, reactionary, and powerful forces, 
aimed at spreading a repressive chill over the 
universities, has been dragged into the light, 
and dealt a setback. But these forces, far from 
retreating, are regrouping, and trying to turn 
the meaning of this verdict on its head. This 
absurd, twisted and clearly unjust decision by 
Denver Chief Judge Naves only contributes to 
those objectives, and it must be opposed. And at 
the same time, the debate we called for in that 
article is needed more than ever, with those 
within and outside academia who, in spite of the 
verdict, are still taken in by a distorted view of what the case is about.

As the fall term approaches, faculty and 
students, and everyone concerned with the defense 
of the unfettered search for the truth, 
intellectual ferment, and dissent, need to step 
forward on campuses around the country and 
develop plans for how to call out, build 
opposition to, and to delegitimize, this ruling, 
calling meetings and rallies, writing letters to 
newspapers and to CU and the Colorado court, 
taking out ads, and more. And broader segments of 
society need to join with them.

The challenge to administrators, faculty, and 
especially students is to stand up to this 
assault. And broader segments of society must 
join with them. We must continue to defend those 
like Ward Churchill when they are singled out for 
attack, and, more generally, defend the ability 
of professors to hold dissenting and radical 
views. It is vitally important that the new 
generation of students step forward to defend an 
unfettered search for the truth, intellectual 
ferment, and dissent. One way or another, this 
struggle over the university and intellectual 
life will have profound repercussions on what 
U.S. society will be like, and on the prospects 
for bringing a whole new society into being.

Reggie Dylan can be reached at: 
<mailto:reggiexdylan at hotmail.com>reggiexdylan at hotmail.com. 
other articles by Reggie, or <http://>visit Reggie's website.

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