Revolution #220, December 19, 2010
Colorado Court of Appeals Rules Against Ward Churchill
In April 2009, after a month-long trial, a jury in Denver concluded that Ward Churchill had been wrongfully fired from his tenured position as Professor of Ethnic Studies at the University of Colorado (CU), where he'd taught for nearly 30 years. The case arose out of an orchestrated right-wing campaign launched in early 2005 targeting Churchill for controversial statements he'd written critical of the U.S. in the wake of 9/11. The University eventually fired Churchill after engineering a full investigation of charges of "research misconduct." And the controversy generated around Churchill became a major focal point of a nationwide campaign to chill and suppress critical thinking and dissent in academia.
The jury in Churchill's lawsuit found that he was fired in 2007 in retaliation for the essay he'd written—and not because of research misconduct as CU's administration and Regents claimed. And they determined that he would not have been fired for academic misconduct in the absence of his essay.
But three months later, in early July 2009, Denver Chief Judge Larry Naves threw out the jury's verdict and ordered a directed verdict in favor of CU on the grounds that the trial should never have taken place. This decision was based on a finding that the CU Regents were acting in a "quasi-judicial" capacity—that is, as judges—when they fired Churchill, so they were immune from being sued.
Having thrown out the jury's verdict, Naves then went on to hypocritically invoke it—in a way that contradicted and cut the heart out of the essential content of the verdict. He claimed that the jury's decision to award only a nominal $1 damage award "compelled" him to deny reinstatement, because it would disregard the jury's "implicit" finding that Churchill had suffered no damages that warrant reinstatement.
Churchill would not be reinstated, and he was not entitled to lost earnings or a financial settlement.
Three of the trial judge's rulings were challenged by Churchill's attorneys in the Colorado Court of Appeals. Two amicus briefs (filed by parties not involved in the lawsuit) were submitted as well by many of the most prominent national civil liberties and faculty groups, challenging the judge's ruling and pointing to the danger it would pose to the rights of professors everywhere. One was submitted by the Colorado ACLU (American Civil Liberties Union), the National ACLU, the AAUP (American Association of University Professors), and the National Coalition Against Censorship; the other by the National Lawyers Guild, the Center for Constitutional Rights, the Society of American Law Teachers, Latina/o Critical Legal Theory, and numerous law professors and attorneys. (All of the documents in this case can be found at www.wardchurchill.net.)
Appeals Court Approves the Reversal of the Jury's Verdict
On November 23, 2010, the Colorado Court of Appeals rejected all challenges to Judge Naves's findings put forward on Churchill's behalf.
The basis for the appeal was clear. First, to declare that a university's top governing body, with the power to hire and fire faculty and employees, is immune from legal challenge—after it has been shown to have violated the Constitution for political purposes—delivers a message of intimidation to faculty everywhere that they have no protection from retaliation for expressing political views at odds with those of their university employers.
Further, to argue that the amount of financial loss determines whether a constitutional violation should be remedied is absurd. And it's clear in this case especially that doing so on the basis of "speculation" about the intentions of the jury turns their verdict on its head. One juror, whose sworn statement was included with the appeal briefs to the Court of Appeals, directly contradicted the judge's finding. According to her, all but one of the other jurors wanted to grant Churchill some amount of money. Not being able to win over that juror, in the end they took to heart Churchill's testimony that the case was not about the money, hoping that the judge would give Churchill his job back or give him some compensation. "The jury did not award $1.00 because we believed that Churchill did not suffer 'actual damages.'"
Prominent attorneys and many academics and scholars spoke out sharply against Judge Naves's decision at the time. Professor Brian Leiter, philosopher, legal scholar, and currently John Wilson Professor of Law at the University of Chicago, described the decision as having "possibly catastrophic implications" in an online piece titled:"Attention State University Faculty in Colorado: You Have Almost No Remedy if the Regents Violate your First Amendment Rights." Jonathan Turley, George Washington University Law School professor and frequent national media commentator, called the refusal to reinstate Churchill "bizarre."
Anatomy of a Witch Hunt
For those who are not regular readers of Revolution, 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. This essay was critical of the U.S. role in the world, and characterized those people who worked as functionaries for the large corporations with offices in the World Trade Center serving "America's global financial empire" as "little Eichmanns"—a reference to the functionaries of the Nazi regime. Churchill's essay became the focal point of a major assault on critical thinking and dissenting scholars in academia that continues to this day.
Right-wing hit man David Horowitz published The Professors: The 101 Most Dangerous Academics in America, and used (his version of) Ward Churchill's case as his introduction. And the American Council of Trustees and Alumni (ACTA), a powerful, right-wing force dedicated to transforming and suppressing critical thinking and dissent in the universities started by Lynne Cheney, wife of the former vice president, published a pamphlet before the investigation of Churchill was completed titled "How Many Ward Churchills?"—with their answer being, "They're everywhere." A chilling message spread to faculty on campuses around the country to "watch out!"—criticism of past or present U.S. crimes could threaten your reputation, your job, even your career.
In this controversial and intimidating atmosphere, faculty, students, and others stepped out to oppose the demand for Churchill to be fired, seeing it as a key battlefront in the growing assault on academia, with the goal of bringing 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 Derrick Bell, Noam Chomsky, Richard Falk, Irene Gendzier, Howard Zinn, Rashid Khalidi, Mahmood Mamdani, and others calling on CU not to fire Churchill.
The CU Board of Regents had first tried to openly fire him for the content of this essay, and appointed a committee to look over every word Churchill had ever published or spoken in public to find a way to fire him based on the content of his work. Then, after Horowitz published an article in the Rocky Mountain News "advising" the University to take a different tact, the Regents announced they were switching gears and now were going to investigate Churchill for academic misconduct. They cobbled together some mainly old complaints about certain aspects of Churchill's scholarship, formed a faculty committee to investigate, and used the committee's findings of alleged research misconduct to fire him in July 2007.
The decision to investigate Ward Churchill's scholarship was nothing but a sham, a way to accomplish the same goal of firing him for his political views, but under cover of "concern for academic standards." The investigation itself lacked credibility—Churchill's body of work was put under a microscope, often focusing on things like footnotes. In one case, the investigating committee spent more than 40 pages discussing a controversy and the footnotes involved, when Churchill had spent no more than a couple of paragraphs on it.
There isn't a single writer, author, academic, or anyone who has written in any kind of significant volume, whose work could withstand this kind of microscopic examination without revealing footnoting errors, or problems in crediting sources. And then this so-called "inquiry" into his academic work was used to attack academic research and critical analysis about the genocide of Native people in the U.S.
Verdict Unacceptable to Those Targeting Churchill
When the verdict was announced, very powerful ruling class analysts and media mouthpieces were outraged. A significant setback had been delivered to the forces in the ruling class hell bent on suppressing and stifling dissent and critical thinking on campuses. A great deal of political "capital" had been "invested" in the public lynching of Ward Churchill. His name had been made synonymous with all things "wrong" with the university—critical thinking; and particularly challenging and laying bare the embedded mythologies that have played a crucial role for centuries in whitewashing this country's crimes past and present, from its origins in slavery and genocide, through its predatory history that has enabled it to gain and maintain the top-dog position in the world it clings to today. The image of America as the "good guys" fighting the "evil-doers in the world" had been taking a hit since the 1960s. All the more valuable was the fact that they'd been able to package this assault on the universities as a defense of academic standards.
Despite the verdict, for them Churchill remained the "poster-boy for academic irresponsibility in both substance and style," as the Chairman of the conservative National Association of Scholars put it. A senior fellow at the ruling class think tank the Manhattan Institute called Churchill's scholarship "hideous and embarrassing," blaming the University for hiring "for diversity reasons, an unprepared, erratic, ideologue with no sense of fairness and no academic credentials." And Ann Neal, president of ACTA, described "shock, hurt, and even anger as surely natural reactions" to the verdict.
These were the stakes that confronted Judge Naves when he stepped in and "fixed" the problem. In doing so, he demonstrated that when interests that are fundamental to those who rule are at stake, the courts are compelled to "interpret" the law in service of those interests. And this is all the more pronounced when the need to make a societal shift is involved. The ruling of the Colorado Court of Appeals has only made this clearer.
Appeals Court Ruling Strengthens the Universities' Coercive Control Over Faculty and Students
The Appeals Court considered and ruled on three questions. The first was whether Churchill suffered an "adverse employment action" (defined as "an act that would deter a reasonable person from exercising his First Amendment rights") as a result of the investigation into the content of his writings launched by the Board of Regents. Their conclusion? No. He did not.
The facts are that the CU Board of Regents held an emergency meeting on February 3, 2005, where they condemned Churchill and his essay, and unanimously voted for a resolution to investigate every word ever published or spoken publicly by him in search of a "cause for dismissal" in the content of his work. And the purpose of the investigation was made public.
The testimony showed that the investigation harmed Churchill's professional reputation, affected his personal life, and had a chilling effect on other members of the faculty. Churchill testified that he missed deadlines and defaulted on book contracts. Speaking engagements were cancelled. Natsu Saito, a law professor on the CU faculty and wife of Ward Churchill, testified that she was compelled to resign from the University because she felt she was equally vulnerable to attack. And the investigation scared a number of junior scholars who said, "If I'm going to have a career, I can't say things like this. I can't do things like this." [From Churchill's Opening Appeal Brief]
What does it say that a state Appeals Court can look at this evidence and deny that the Board's actions would have a chilling effect on faculty members' exercise of their First Amendment rights?
The second question the Appeals Court ruled on was whether the trial judge was wrong to grant CU's Board of Regents quasi-judicial immunity—which therefore meant they could not be sued for damages. No, they said—he was not.
To be granted quasi-judicial immunity, a body has to be functioning in a judicial capacity. But as the briefs submitted to the Appeals Court by attorneys for Churchill and by those in support argue, the Board of Regents does not fit that criterion. First, because they have a stake in the outcome of the matter and represent one side in the dispute, they cannot be considered to be acting in an independent and impartial manner. Judges in such a situation would have had to remove themselves from the case. And second, the majority of the Regents, if acting as impartial judges, would also have had to remove themselves from the deliberations because they had expressed their belief that Churchill should be fired before all of this began.
In a special issue of Revolution (issue #81—"Warning: The Nazification of the American University"), we wrote that powerful right-wing forces have set out to transform university administrations into "instruments of coercive enforcement and control over faculty and students—intimidating, threatening, and 'cleaning house' of dissident thinkers when called on to do so, while leaving scholars under attack to fend for themselves."
This ruling by the Colorado Court of Appeals greatly assists this transformation now taking place on university campuses everywhere.
The final question was whether the trial judge was wrong to refuse to reinstate Churchill to his position on the faculty of CU-Boulder. No, said the Appeals Court. He was not.
The jury verdict in the trial has been a "problem" for the court all along. The most fundamental one was the determination that Churchill's firing was in violation of his constitutionally protected right to free speech. The assumed remedy in such a situation, where someone's constitutional right is violated, is reinstatement. The Appeals Court avoided mentioning explicitly Naves's effort to hang his decision on his imagined "intent" of the jurors' verdict. But it still ruled that it was within the discretion of the trial judge to determine what a just remedy was. So the Appeals Court declined to "disturb" the decision of the trial court—even though it decided to grant no remedy at all!
There is clearly a great deal at stake in whether this fundamental transformation in academia is defeated. As we wrote after the jury's verdict in April 2009, "The overall objective of this attack on dissent and critical thinking is to change the university as we have known it: in its internal life and functioning and in its effects on society. If this reactionary program wins out, the university will be turning out students who will have had little, if any, opportunity to think critically, into a society qualitatively more severely repressive than anything seen in this country's history…
"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."
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