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 9/11—which 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 vacated—threw out—the 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 scholars—such as Noam Chomsky and Stanley Fish—have made the point that no researcher’s work could stand up to this kind of scrutiny.
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 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 Leiter’s Law School Reports), titled: “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. 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 speech—which can only rightfully be remedied by returning him to his job—is 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.