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<h1><font size=4><b>New Assault on Critical Thinking and Academic Dissent
in Ward Churchill Case</b></font></h1><font size=3>by Reggie Dylan /
August 4th, 2009<br>
<a href="http://dissidentvoice.org/2009/08/new-assault-on-critical-thinking-and-academic-dissent-in-ward-churchill-case/" eudora="autourl">
http://dissidentvoice.org/2009/08/new-assault-on-critical-thinking-and-academic-dissent-in-ward-churchill-case/<br>
<br>
</a>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.<br><br>
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. <br><br>
<b>Background to a Witch-hunt<br><br>
</b>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.<br><br>
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 <i>New York Review of Books</i> 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.<br><br>
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.<br><br>
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.<br><br>
<b>“Quasi-judicial Immunity”<br><br>
</b>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
<a href="http://dissidentvoice.org/2009/08/new-assault-on-critical-thinking-and-academic-dissent-in-ward-churchill-case/www.wardchurchill.net">
here</a>.)<br><br>
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.<br><br>
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:
“<a href="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</a>.” But the impact
of this ruling, if it is allowed to stand, will be felt by faculty far
beyond Colorado.<br><br>
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.<br><br>
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.”<br><br>
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?<br><br>
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:<br><br>
</font>
<dl>
<dd>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.<br><br>
</dl>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”: <br><br>
<dl>
<dd>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.<br><br>
</dl><div align="center">*****<br><br>
</div>
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.<br><br>
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.<br><br>
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.<br><br>
Reggie Dylan can be reached at:
<a href="mailto:reggiexdylan@hotmail.com">reggiexdylan@hotmail.com</a>.
<a href="http://dissidentvoice.org/author/ReggieDylan/">Read other
articles by Reggie</a>, or <a href="http://">visit Reggie's
website</a>.<br><br>
<br><br>
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