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Chastening Churchill: The Justice of Judge Naves’ Opinion
Yesterday Denver District Court Judge Larry J. Naves turned down Ward Churchill’s motion to be reinstated in his professorial position. The former University of Colorado Ethnic Studies professor walks away from his celebrated trial with his jury award of one dollar, the prospect of enduring popularity on the academic left, but not much more—for now. His lawyer, David A. Lane, says Churchill will appeal.
Opinion in higher education is divided. Was he treated fairly by the court? I think so, but The Chronicle of Higher Education reports that Cary Nelson, president of the AAUP, disagrees, as does Greg Lukianoff, president of FIRE. On the other hand, Ada Meloy, general counsel of ACE finds the decision “a great development for decisions made within higher education institutions.”
On a matter of such controversy, it may take a while for the dust to settle. Here is why I think Judge Naves decided the case correctly.
From the standpoint of higher education, the central issue in this controversy is the scope of academic freedom. I suspect that the AAUP, FIRE, ACE, and NAS agree on that. Academic freedom, however, is not a Constitutional matter and is only secondarily a legal doctrine. It is mainly a customary usage in higher education, oftentimes backed up by official statements of colleges and universities. Its exact meaning depends on what colleges and universities say about it and how they commit themselves to it in their relationships with faculty members, students, and the institution as a whole.
The notion of “academic freedom” looms large in discussions of how universities should conduct their affairs, but it is not a very precise idea, and in light of that courts have historically chosen to stand at a distance and let universities sort it out for themselves. Courts, of course, tend to act much more forcefully on First Amendment issues. When an abridgement of the right of free speech is at issue, as it often is, for example, in cases involving speech codes, the judiciary pretty clearly sides with the rights of Americans to express their views freely.
Academic freedom arguments and First Amendment arguments can overlap and, in light of that, there is some tendency to conflate the two. Ward Churchill undoubtedly has a First Amendment right to say whatever he wants about “little Eichmanns” in the World Trade Center and the like. Whether his statements come under the rubric of his exercising academic freedom is something else. But as it happened, the University of Colorado attempted to steer clear of that question. It instead focused on allegations that Churchill had made false statements about his academic record and engaged in other forms of academic misconduct.
His defenders have pointed out, plausibly, that Churchill’s academic misconduct probably wouldn’t have attracted the University’s attention or eventuated in his dismissal if it were not for his flamboyant anti-American statements. In that sense, the University’s decision to dismiss him is connected to acts that were clearly protected by the First Amendment and possibly by the doctrine of academic freedom. This left the jury and ultimately Judge Naves with the problem of dissecting the relative contributions of multiple factors.
Churchill’s academic misconduct all by itself amply justified his firing, but the University had turned a blind eye to that misconduct for a long time. Suddenly he was the object of national attention, and only then did the University get around to examining what sort of charlatan it had appointed, promoted, tenured, and entrusted to teach its students. It is not hard to see how the jury, after a month-long trial, reached the verdict that Churchill’s public statements were indeed a factor in his dismissal.
Cary Nelson’s response to this is to praise the jury for finding “that the university president's decision to fire Churchill was fruit of the poisoned tree—the public outrage over Churchill's extramural speech." The fruit of the poisoned tree is a Biblical metaphor (Matthew 7: 17-20) and a longstanding concept in American law for excluding evidence from a tainted source. But I think it’s the wrong metaphor. A man who is living a lie, as Churchill was at the University of Colorado, needs to be careful about drawing attention to himself. Perhaps the saying that most applies to Churchill’s situation is that those who live in glass houses shouldn’t throw stones. No matter how provocative Churchill’s statements were, he would have continued to enjoy his tenured position at the University of Colorado Boulder if he had not also been engaged in academic fraud. The poisoned tree, if there is one, is not shady procedure on the part of the University but Churchill’s shady life. He got caught. Should the doctrine of academic freedom retroactively award him immunity from a life of fraud? That argument looks all wrong to me.
Academic freedom is a doctrine meant to encourage scholars’ pursuit of truth by scholarly and scientific means. It is not a license meant to protect con men, thieves, liars, and other miscreants from the just consequences of their acts. Although the idea of academic freedom goes back much further than the beginning of the 20th century, it came into focus for American academics in a series of cases where universities dismissed competent and honest faculty members for speaking publicly on issues within their expertise but which rubbed university trustees the wrong way. The seminal statement on academic freedom was the AAUP 1915 “Declaration of Principles.” It was and is unmistakably a ringing defense of intellectual freedom, but it was also a statement infused with moral clarity. Academic freedom was not a doctrine meant to provide cover to scoundrels, or even to insouciant blatherers:
In their extramural utterances, it is obvious that academic teachers are under a peculiar obligation to avoid hasty or unverified or exaggerated statements, and to refrain from intemperate or sensational modes of expression.
What does the AAUP today say about this language? Basically it proclaims that ‘Times change, and we need a broader, more flexible understanding of academic freedom.” Do we?
The jury in the Churchill trial came in with a verdict that almost perfectly captured the diffidence American feel about the matter. It recognized that Churchill’s firing was in some wise connected to his provocative speech, but it didn’t deny the plain evidence of Churchill’s plagiarism, academic misconduct, and falsified credentials. The one-dollar award was the minimum that Judge Naves told the jury it could award in the event that it found in favor of Churchill.
The Chronicle of Higher Education expresses doubt that even the one-dollar award will stand in light of Judge Naves 42-page decision, which it sees as vacating the jury verdict. I have no legal expertise and can’t venture an opinion on that, although in my layman’s reading of the decision, Judge Naves seems pretty deferential to the jury’s findings of fact. The only time he explicitly vacates a portion of the jury’s verdict is on the question of whether Churchill can sue the individual members of the administration. That comes at the conclusion of the beginning section responding to the University’s motion that its officers be immune from individual liability because they should enjoy “judicial immunity.” Judge Naves examines the law and the circumstances of the case and grants the motion. This forecloses Churchill from hectoring his former colleagues with nuisance suits—an all too likely possibility. The Judge’s findings on this point take up more than half of the entire decision—and seem unlikely to attract much comment within the academic community.
The part that rivets attention begins on page 26 and concerns Churchill’s “Motion for Reinstatement of Employment.” Judge Naves, most likely anticipating appeals, is systematic. After summarizing the jury’s findings, he presents four separate reasons why “reinstatement is not an appropriate remedy.” They are:
1. The jury determined that “Professor Churchill suffered no actual damages.”
This seems counter-intuitive. Surely losing a tenured position at a major university is “damage” of some sort. But Judge Naves says he is bound by the jury’s finding of one dollar damages, which is to say, no real damage. A mindless legalism? I suppose a common sense reading of the “no damages” finding is that no man is entitled to something he held by means of fraud. Bernie Madoff didn’t suffer “damages” either when the Court in New York stripped him of his pelf.
2. Reinstating Churchill would “likely result in undue interference in the academic process.”
From the standpoint of those of us who care about the integrity of higher education and the possibility of reforming it from within, this is the most important part of Judge Naves’ decision. It ought not to be up to a jury or a judge to decide when a faculty member has crossed the line into academic misconduct. Faculty members can err by framing spirited hypotheses, overlooking methodical flaws, mis-transcribing data, arguing points tendentiously, and so on, and such errors are subject to normal reproofs and corrections. Sometimes, however, faculty members engage in deliberate fraud, misrepresentation, systematic falsification, and over deep forms of dishonesty. The university needs to have the autonomy to sort this out. If it fails too often in that function or tries to use “academic freedom” as a cover for not pursuing malefactors, society will quickly enough move in to set things right. “Academic freedom” exists on sufferance from a liberal and tolerant society. Judge Naves respects it. Those who would give Ward Churchill a pass on his fraudulent career in the name of academic freedom put the whole doctrine at risk.3. Reinstatement is inappropriate when “relationships between the parties are irreparably damaged.”
Judge Naves is mindful that the damage has to be on both sides. It is clear the University of Colorado doesn’t want Churchill back because it has a firmly established view of the nugatory value of his scholarship and a dismal assessment of his character. But the judge points out that the hostility is mutual. Since the jury verdict, Churchill has gone out of his way to vilify the University, statements that are “not likely to create productive and amicable working relationships.” Judge Naves cites four examples:
(1) Professor Churchill’s post-verdict reference to the University as having “degenerated to a not very glorified vo-tec, a trade school.” Exhibit H to Brief in Opposition to Motion for Reinstatement of Employment; (2) Professor Churchill’s reported post-verdict reference to the University’s administration and witnesses as “the string of unprincipled liars the university called to the stand…” Exhibit F to Brief in Opposition to Motion for Reinstatement of Employment; (3) Professor Churchill’s statement that “A random group of homeless people under a bridge would be far more intellectually sound and principled than anything I've encountered at the university so far.” Exhibit AA to Brief in Opposition to Motion for Reinstatement of Employment; and (4) Professor Churchill’s reference to the faculty as the “ostrich factory,” presumably with their heads buried in the sand. Exhibit V to Brief in Opposition to Motion for Reinstatement of Employment.
There are lots of faculty members in the United States who have dim views of the colleges and universities they work for, but few who would campaign for re-appointment by publicly belittling their would-be colleagues in this manner. The doctrine of academic freedom supposes some basic level of maturity and civility that Ward Churchill seems unable to muster. That’s one more reason—mine, not Judge Naves’—why I view the academic freedom defense of Churchill as profoundly mistaken.
4. Resinstatement would “impose harm on others.”
Judge Naves is thinking of both the regular faculty of the University of Colorado and the students. Faculty would be hurt because reinstatement would mean that the University effectively has no capacity to “discipline errant and dishonest colleagues.” And students would be hurt because it would be evident that the University cannot hold them to high standards either. These seem self-evident points to me, but it is good that Judge Naves put them in the record. Higher courts are perfectly capable of ignoring the self-evident harm that comes from promiscuously forcing colleges and universities to bring recognized scoundrels back into their midst.
I hope this decision withstands the scrutiny of higher courts, if that is where it is headed. And if those appeals are wrapped up in the language of academic freedom, I hope courts will have the sense to distinguish the sober freedom needed to get on with the important work of scholarship from the rascally freedom used by con men in an attempt to get away with fraud.
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(1) It is hard for me to reach a complete assessment of Naves' decision because I am unclear about the First Amendment issues in the case—and that is because of Garcetti and other recent court opinions I mentioned in my Virginia Tech piece. It is perfectly clear that Churchill has First Amendment rights as a private citizen to say what he did. (For example, he obviously could not be arrested for saying what he did.) What is not clear to me is whether he has a right to say what he did as a state employee. Garcetti and recent decisions would seem to indicate that he didn't.
However, my impression is that Garcetti and the questions it raised were not engaged in the Naves court. That is, Naves seems to have taken it as a given that Churchill did have free speech rights to say what he did that barred the University of Colorado from firing him. If so, then surely the case was wrongly decided, and the chances are good that it will be overturned on appeal. Why? Because the jury found that the University fired Churchill for political reasons, not because of plagiarism and research misconduct. That was the crucial finding. Given that finding, Naves surely had no choice but to reinstate Churchill.
Of course, the University of Colorado deserves to be lambasted for not having exercised due diligence and for having failed to fire Churchill for academic misconduct before his remarks on 9/11. If anyone should surely be fired, it is the dean of Churchill's ethnic studies department and other administrators for letting Churchill get away with his whole fraudulent career for as long as he did. Apparently, clear evidence of Churchill's research misconduct and academic malpractice has been circulating at Boulder and elsewhere in the academy for many years. There is no First Amendment protection for failing to uphold even a semblance of academic standards, which is what happened in this case, so there is no legal bar to firing them! But so far as the law is concerned, it is crucial that the jury found that the University's rationale (research misconduct, plagiarism etc.) was one that it had concocted after the fact, and that the motive was in fact political.
That being the case, I'm with Greg Lukianoff of FIRE on this one: "Nonetheless, [Lukianoff] called the ruling ‘a very odd, troubling, and hopefully entirely unique decision.’” "No matter how people feel about Ward Churchill," Mr. Lukianoff said, "they should recognize that ultimately what the court is saying is that a professor was fired in violation of his free-speech rights, yet there is nothing to be done about it."
Because it had been derelict about Churchill's academic frauds before his 9/11 statements, it seems to me, the University has put itself in a position where Churchill's free speech rights must prevail over the University's belatedly recognized but wholly legitimate concerns now about Churchill's fitness to teach at the University. The University has made its bed: now it must sleep in it.
This does not mean that if Churchill were reinstated that he would have lifetime immunity for continued academic fraud and incompetence—it is just that his past academic fraud and incompetence cannot be used by the University as a pretext after the fact for having fired him for political reasons. (This is what the jury found that it had done.) If Churchill were reinstated to the University, his life there would not be an easy one, for the University could, should, and undoubtedly would fire him if he continued his academic malpractice.
(2) Judge Naves held that reinstating Churchill would “likely result in undue interference in the academic process.” This is very odd. Naves' job was to rule in a case and controversy involving the law. As a judge, he should have confined himself to what the law says, and let the chips fall where they may inside the academy. As it is, he seems to have plainly disregarded the jury's verdict about the facts of the case. (One might disagree with the jury's central finding, but as a judge Naves himself could not.) It is inconsistent as a matter of law to hold that Ward Churchill had free speech (First Amendment / academic freedom) rights that barred the University from firing him for saying what he did, and then, in the face of a jury verdict that the University did fire him for saying what he did, to not reinstate him. By imagining that a different ruling would have resulted in "undue interference in the academic process," he has introduced incoherence into the law—and it is the law that had to be his pre-eminent concern as a judge.
(3) So far as the interests of the academy are concerned, there are a number of issues that need to be distinguished. Obviously, U Colorado-Boulder would have been a better university if Churchill had been fired for academic fraud and malfeasance years ago. However, it does not follow that U Colorado-Boulder—and the academy generally—would be a better place without Churchill now after a jury has found that he was fired for political reasons, and in violation of his free speech rights. A decision like this has consequences, one of which is the chilling effect it will undoubtedly have on free speech in the academy.
(4) I am not sure that Naves fully understood the implications of his decision on what he calls "the academic process.”
Ada Meloy, general counsel to the American Council on Education, called the ruling "a great development for decisions made within higher education institutions.” I am not surprised that the general counsel of ACE was relieved by Judge Naves' ruling, because it essentially removes accountability from the academy for frauds like Churchill. (Who doesn't want to be held beyond accountability?) The academy has done little or nothing to weed out academic frauds and incompetents like Churchill, just as the AMA has done little or nothing to weed out incompetent doctors. Under the Naves ruling, the University of Colorado pays essentially nothing for firing Churchill, even though a jury found (rightly or wrongly) that its motive was political, i.e., that Churchill's free speech rights were violated. How will this removal of accountability serve the academy?
It would be far more salutary for the academy to have deans and administrators live in dread that they are harboring others like Churchill, and that if they fail to identify them and weed them out in a timely way, they will rue the day when the rocks at their own institutions get overturned and it is too late for them to do anything about it.
(5) I have argued in the Virginia Tech piece that if the Garcetti line of cases prevails in future cases involving academic freedom and employment law, the academy must mobilize to make sure that free speech rights of faculty gets instated in contract law. Whether guaranteed by contract law or First Amendment law, however, free speech rights will be meaningless under a ruling like Naves'. In contract law, for example, the rule could not possibly be that a university is barred from firing a faculty member for political reasons unless it finds, after the fact, that it has cause to fire him or her for academic reasons. One can expect a university to be quite creative in concocting "academic reasons" to fire anyone who has become an embarrassment or a liability for political reasons, and the courts could soon find themselves flooded with such cases. Under contract law, as under First Amendment law, the rule has to be that the faculty member's rights are fully protected if that individual is a member of good standing in the academy at the time of the event. And this is just the problem in this case, for due to the University’s malfeasance, Ward Churchill was a member in good standing as a tenured faculty member at the time he made his remarks about 9/11.
(6) U Col-Boulder harbored in its midst for years an academic charlatan and incompetent, and then, apparently, violated the free speech rights of that faculty member after he had drawn hostile attention to the university because of comments he made about 9/11. The outcome of Judge Naves' ruling is that the University pays no price for having done either thing.
Many critics of the academy and of Churchill in particular think this is a good ruling for us, but I see it very differently. Judge Naves' ruling is bad law (which I expect will be overturned on appeal), and sends all the wrong signals to the academy. The last thing the academy needs is to let the deans and administrators who allowed Ward Churchill to run loose at U Colorado off the hook.
Tom Wood
by Tom Wood Posted on 07/08/2009
I think that Professor Churchill should have been fired because he violated the principles of academic freedom as set forth in the AAUP's 1915 statement, particularly the paragraph quoted above by Dr. Peter Wood. Her did so both before the 9/11 statement (plagarism, etc) and afterwards, with his reckless statements regarding the cause of 9/11. gseaver
by gseaver Posted on 07/09/2009
Hmmmmmmmmmm....OK. I understand. Sounds Good.
1) I don't have a PhD, but I want to be a college professor.
2) I claim to be a member of a minority .... say... Martians ... you don't have any Martians on your faculty.
3) I do bogus research and plagiarize to produce publications.
4) When the game is up ... and they are about to haul me up for violating academic standards, I'll just come up with an unpopular position --- say, promoting cannibalism.
5) Then, I'll deflect any criticism by claiming academic / religious / cultural freedom.
It almost worked for Ward .. .maybe it will work for me.
by NealS Posted on 07/13/2009