[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
http://dissidentvoice.org/2009/08/new-assault-on-critical-thinking-and-academic-dissent-in-ward-churchill-case/
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 hed 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 Churchills
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 committees
findings of alleged research misconduct to fire him.
The verdict confirmed Churchills 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
researchers 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 CUs attorneys,
accepts CUs claim that the Regents hold
quasi-judicial immunity, as a matter of law. In
essence this means that the schools 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
universitys formal procedures are followed in
firing them. (Find all of the court papers
<http://dissidentvoice.org/2009/08/new-assault-on-critical-thinking-and-academic-dissent-in-ward-churchill-case/www.wardchurchill.net>here.)
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 Leiters Law School
Reports), titled:
<http://leiterlawschool.typepad.com/leiter/2009/07/attention-state-university-faculty-in-colorado-you-have-no-remedy-if-the-regents-violate-your-first-.html>Attention
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. Thats why, having first thrown out the
jurys verdict, Naves then goes on to invoke it.
He claims that the jurys $1 damage award compels
him to deny reinstatement. If I am required to
enter an order that is consistent with the
jurys findings, I cannot order a remedy that
disregards the jurys implicit finding that
Professor Churchill has suffered no actual
damages that an award of reinstatement would
prospectively remedy. This argument is
completely baseless. The jurys 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 judges attempt to interpret
the jurys findings is also contradicted by one
of the jurors, who has written an affidavit filed
with Churchills response to the ruling. In it,
the juror explains, It was difficult for us to
put a value on Churchills emotional distress,
and in the end, we listened to Churchills
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 Churchills attorney David
Lanes Reconsideration motion puts it, how can
there be no evidence of academic misconduct
serious enough to justify Churchills firing, but
there is sufficient academic misconduct in the
courts 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 jurors 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 Colorados 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 Churchills 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.
<http://dissidentvoice.org/author/ReggieDylan/>Read
other articles by Reggie, or <http://>visit Reggie's website.
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