Genociding Ward Churchill for over a 20th of a century

CNews 27July09

Urgent Letter to Friends and Colleagues of the “Defend Dissent and Critical Thinking in Academia” Network: On July 7th, Denver Chief Judge Larry Naves vacated the jury verdict in April that affirmed Professor Churchill’s claim that he was wrongly fired by the CU Regents in retaliation for the essay he wrote right after 9/11—and not for alleged research misconduct as the university claimed. The ruling refuses to reinstate Ward Churchill to his teaching position at CU – Boulder. The judge also ruled that Churchill was not entitled to earnings, or a financial settlement. The day after the ruling, according to The Denver Post, the university announced it would bill Professor Churchill more than $10,000 for out-of-pocket costs it incurred while defending against his suit. On its face the ruling by Chief Judge Naves is ludicrous, utterly specious, and in complete denial of the truth. Now is a critical moment to reground ourselves in what this case has been about from the start. We need to analyze deeply the consequences of such an unjust and highly political ruling, that further threatens dissent and critical thinking within the universities, and ultimately in society if allowed to stand. We must then work together to find the most effective ways to challenge and “de-legitimize” this ruling in the public square. A few observations about the ruling: The ruling accepts CU’s claim that its Regents hold “quasi-judicial immunity,” as a matter of law. It is quite likely that the attorneys for CU waited until after the trial to make this claim because they expected a jury verdict in their favor, giving final legitimacy to their politically motivated firing of Churchill. Instead, the jury did the opposite. Making this ruling after the verdict has been reached, Naves has bestowed “quasi-judicial immunity” on a body whose members 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 body to be granted this kind of immunity, given their power over the lives and careers of university faculty and scholars who see their responsibility to pursue the truth- even in highly political arenas-wherever it leads, and to express that in public? 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 report on the Naves ruling, titled: “Attention State University Faculty in Colorado: You Have Almost No Remedy if the Regents Violate your First Amendment Rights.”* [*Brian Leiter’s Law School Reports]. But Colorado will not be the only state to feel the “spillage” from this message if it is allowed to stand; it clearly will be felt by faculty everywhere. Having first thrown out the jury’s verdict, Naves then goes on to invoke it. He claims that the jury’s $1 damage award compelled 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 tortured attempt to use the nominal $1 damage award to justify dismissing the jury’s verdict has no basis in law, and is refuted by the facts. The remedy for Churchill’s wrongful firing, in violation of his protected speech, can only be returning him to his job. How can that be mitigated by the amount of the damage award? To argue that the amount of damages is determinant of whether a constitutional violation will be remedied is absurd. What’s more, one of the jurors has submitted an affidavit with Churchill’s Motion for Reconsideration, disputing the judge’s interpretation of the meaning of their verdict, which states: “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…” And it ends with this: “…I feel that the Jury’s verdict was disrespected because the Judge did not follow what the Jury found. I am frustrated that I sat through the entire trial and our pronouncements were ignored by the Judge.” Naves’ ruling dismisses the very essence of the jury's verdict, and of the case itself: “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.” He then adds, “That is a very different question than whether Professor Churchill engaged in research misconduct, which remains the province of the University’s faculty.…” Naves accepts the finding that Churchill committed serious research misconduct, completely ignoring the expert testimony the jury heard at trial highly critical of the investigative committee’s findings – a key part of the basis of their verdict. This too is addressed in the Juror’s Affidavit: 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. And because the incoming Chair of the Ethnic Studies Department, Emma Perez, agreed with these criticisms of the misconduct charges and expressed support for Churchill’s reinstatement at the recent evidentiary hearing, the ruling calls the entire department into question: “If I granted reinstatement I believe there is a substantial likelihood that there would be future disputes about the propriety of Professor Churchill’s academic conduct, as well as the Department of Ethnic Studies’ ability to evaluate the probity and veracity of his scholarship.” This is a nasty and gratuitous slam at the integrity of the Ethnic Studies Department. Finally, Naves puts blame for refusing reinstatement on Ward Churchill’s statements demonstrating “hostility to the university.” Jonathan Turley, for one, characterized the rationale this way: “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 for his views.”

It’s not surprising to learn from Natsu Saito that the judge’s 42-page opinion was “lifted wholesale from the University’s pleadings.” (Go to www.wardchurchill.net to see a comparison of the two, as well as the other documents submitted in response to the ruling by Ward’s attorneys.) Once again the stakes of this are very high. Naves’ ruling, if allowed to stand, could legitimize the right of a university to punish, up to and including revoking tenure – faculty who express, even outside the academy, controversial views, especially those that challenge dominant narratives that underpin the notion of “American exceptionalism.”

What Is To Be Done?

We should work with Ward and Natsu to continue the battle within the courts to reverse the ruling. One idea that should definitely be pursued is to draft and submit a compelling amicus brief signed by scholars throughout the country.

In addition, it is important to contribute Op Ed pieces to Colorado newspapers, as Richard Delgado (in the Boulder’s Daily Camera) and others have done; but even more, to influential national newspapers – The New York Times, The Washington Post, The Los Angeles Times, U.S.A. Today, etc. This should start right away, and with a special push in late August, as the fall terms begin. Work could begin now on a formal statement that would be circulated for signatures of faculty nationwide in time to have it published in key campus newspapers, as well as in journals, major on-line news sites, in addition to regular newspapers, to coincide with the start of school in the fall. If this were accompanied by a call for faculty (and student!) meetings and conferences, even rallies in some cases, the public challenge from within the academy to the legitimacy of this ruling could spill over into the major media.

It may also be time to consider a second major piece, like the one that appeared as an ad in the NYRB in April, 2007, initiated and signed by prominent public intellectuals. That piece had first been submitted as a letter to the New York Times, the NYRB, and to Harper’s. This time we may be more successful in getting one of them to publish it. But if necessary, we should be prepared to raise the funds for its publication. These are just some initial ideas and suggestions to “get the juices flowing.” Let’s correspond and share ideas, and ways in which you’re willing to contribute to this vitally important effort.

CNews 23July09

Some idiot (stand among Professor Doctor Indian CU employee Ward Churchill's Dune Buggy Attack Battalion and point in any direction) spends 30 pdf pages "proving" District Court judge Larry Naves is guilty of, well: "None Dare Call It Plagiarism". (ht Leah)

CNews 22July09

Professor Doctor Indian CU employee Ward Churchill is now asking District Court judge Larry Naves to reconsider his decision (ht Leah)
Excerpt:

Ward Churchill's lawyer, David Lane, filed a motion Tuesday asking Denver District Judge Larry Naves to amend his ruling and reinstate Churchill to his former position as a tenured professor at CU's Boulder campus.

Naves ruled July 7 against Churchill's bid to return to his job as an ethnic studies professor. He said the decision by the university's governing Board of Regents to fire Churchill in 2007 for plagiarism "occurred with sufficient procedural protections."

Update:
...Speaking of "as if!", apparently 15 minutes of fame wasn't enough for Bethany Newill, the only juror on the court case to talk to the press; she submitted an affidavit along with Churchill's motion yesterday. "I am frustrated" she said, "that I sat through the entire trial and our pronouncements were ignored by the judge." (ht Leah)

Update II: Here's Bethany's affidavit (pdf)

Update III:

CNews 20July09

The Council is now aware—as were several participants in the discussion—that one element in Committee A’s decision not to act in 2007 may have been the information it received that Churchill never actually asked for an [AAUP] investigation. Churchill’s own belief is that he did. Certainly his wife Natsu Saito—a lawyer and law professor who was acting as his legal representative in dealing with the AAUP—repeatedly wrote exactly that. Thus a September 5, 2006, letter from Saito to General Secretary Roger Bowen and Department of Academic Freedom and Tenure Director Jonathan Knight, quoted here with her permission, concludes, “As noted in our previous communication, we appreciate the statement issued by the AAUP early in this process, as well as your longstanding defense of academic freedom, and hope that you will be willing to investigate the many breaches of faculty rights, due process, and academic freedom involved in this case.” The national office never requested anything more explicit from the Churchills. And the request came up in a phone conversation between Churchill, Saito, Knight, Bowen, and Alan Jones, vice president and dean of faculty at Pitzer College in California, who was also assisting Churchill with his case. Cary Nelson recently asked Knight about this discrepancy; he replied that he could no longer remember the details after this much time has passed. Roger Bowen acknowledged his contacts with Saito in an April 1, 2009, letter to the Wall Street Journal. He also offered his opinion that “portions of Mr. Churchill’s scholarship were dishonest,” thereby (since Bowen had been general secretary from 2004 to [2007]) implicitly implicating the AAUP in a stand it did not take.

"We always knew it was going to get worse before it got better," an Obama loyalist moaned. "But it got worser."

CNews 16July09

A major fault line in the case is whether the reason why the university undertook its investigation made its action illegitimate. To Churchill defenders such as AAUP president Cary Nelson, the fact that the investigation was triggered by the hostility to his “little Eichmanns” essay meant that he was being punished for his opinions, thus an assault on academic freedom. Nelson argues that the findings of academic misconduct were “fruit of the poisoned tree” and therefore should be thrown out.

Nelson is suggesting an analogy to criminal law’s “exclusionary rule” which prevents evidence obtained from an illegal search or seizure from being introduced in court. The purpose of that rule is to dissuade police from trampling over the Fourth Amendment. There’s much to be said for that, but only in the field of criminal law. Americans have a constitutional right not to have their homes searched without a warrant, but no constitutional right not to have their academic veracity investigated.

Put another way, it does matter whether the police had probable cause to conduct a search, but it should not matter why a school (or individual) decides to look into the scholarship of a professor. Merely because an investigation was undertaken with a supposedly bad motive—disagreement with the professor’s views—that shouldn’t confer immunity on him for academic misconduct.

CNews 14July09

When Judge Larry J. Naves ruled (Daily Camera, July 9) that the Colorado Board of Regents were immune from suit because in dismissing Churchill as they did they were operating as a quasi-judicial body, the judge unwittingly summoned up a history of Anglo manipulation of that very same notion.

I refer not to immunity in the legal, but the medical sense. In a chapter of history that Professor Churchill wrote about–to the consternation of some of his critics– the westward-marching settlers and the U.S. Army may have deliberately introduced smallpox to the Indians by supplying them with disease-infested blankets.

Lacking immunity from the disease, the Indians sickened and died in large numbers.

Their ranks decimated, they proved unable to offer effective resistance to the Anglo invaders and went down to defeat.

Immunity, then—or, rather, the Indians’ lack of it–was what enabled white men to achieve what they had been unable to do otherwise, namely defeat their adversary on the field of battle.

How fitting, then, that to dispatch a modern-day Indian scholar, the judge deployed the legal doctrine of immunity to deny Churchill redress for a violation of his constitutional rights.

There is a part here that I don't understand. You write:

"All the jury found is 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 research misconduct for which there was no such finding by the jury and remains the province of the University’s faculty."

No such finding? In this post on your blog, http://www.theracetothebottom.org/ward-churchill/churchill-trial-concern-over-a-jury-instruction.html, we were told that this was the instruction to the jury:

"If you find in the Plaintiff's favor with respect to each of the facts that the Plaintiff must prove, you must then decide whether the Defendants have shown by a preponderance of the evidence that the Plaintiff would have been dismissed for other reasons even in the absence of the protected speech activity. If you find that the Plaintiff would have been dismissed for reasons apart from the speech activity, then your verdict should be for the Defendants."

It seems that the jury did then come to a finding on research misconduct -- they did not believe there was any, they did not see that the University fired Churchill for any reason other than exercising his freedom of speech.

Someone has overlooked something, either you or Judge Naves.

Also, for the record, it would be useful if you provided the actual court documents: the ruling by Judge Naves, but also the complete and unedited list of instructions to the jury.

...to which, "Thomas" responds:

Max, you have overlooked an intermediate position -- the jury may have believed that Churchill engaged in misconduct, but also believed that CU would not have fired Churchill for said misconduct but for the additional factors.

Note that the trial was about CU's conduct, not Churchill's. The jurors were not asked to arrive at a decision on Churchill's conduct. CU did not call a single expert witness re the research misconduct issues. Instead, CU took a minimalist strategy that focused on due process. It was a risky move, but it paid off in the end.

As for the second jury instruction you raised, Max, this is one of those situations where the law is an ass. The jury was instructed to engage in counterfactual speculation about what would happen in an alternate universe in which the Regents had never heard of Churchill's offensive comments. Nonetheless, I agree with their speculation -- that Churchill probably would not have been fired in that alternate universe. Still, that does not mean that he is innocent of misconduct -- simply that he would not have been fired for it.

Finally, note that Churchill's lawyer selected the most unqualified jurors he could get. In voir dire, he used seventeen exceptions to exclude educated members of the panel. He wound up with a jury that had only a single person with any university education, and she had ties to CU's Ethnic Studies department.

So not only were the jurors asked to speculate about what the university would have done in that alternate universe -- they were doing so without any useful experience or knowledge of how universities work.

BTW: RttB also has posted both CU defense attorney Patrick O'Rourke's final brief to Judge Larry Naves concerning his "quasi-judicial immunity" defense and Churchill's legal sock-puppet David Lane's final response. Did we say "legal sock-puppet"? We meant to say "hopelessly outmatched abject failure of a legal sock-puppet". (ht Leah)

CNews 13July09

Suddenly, for AAUP prexy Cary Nelson, it's all about competency. (ht Waldo Pepper)
Now (2009):

"Academic freedom protects you from retaliation for your extramural remarks, but it does not protect you from being prohibited from teaching in an area where you are not professionally competent, and there are doubts on whether she has the competency in human rights," Nelson said. He said that there is in fact an "international consensus, save a few countries like Iran" that gay people should not be treated as criminals.

Then (2007):

“It’s about the future. It’s about our students. It’s about the kind of country that higher education can help shape. It’s about the desire to establish the 1,000 year Republican reich,” he said. “It’s an effort to create in the public mind the notion that one should properly ask a candidate for a professorship: Are you now or have you ever been a registered Democrat?”

CNews 12July09

From our Bullshit Hath Charms to Soothe the Savage Breast department: Two Colorado professors approach the dangerously unpredictable proletariat and, with gentleness and short, softly-spoken words, explain why Churchill's "little eichmanns" essay was right. co-authors Francis A. Beer (professor emeritus, political science at CU) and Joseph B. Juhász (professor of architecture and environmental design at the University of Colorado-Denver). First question: What's a Hungarian psychologist doing teaching architecture and environmental design? (ht Leah)
Excerpt:

[...] There are two Americas, with very different attitudes toward free speech. When Churchill spoke, his words challenged the dominant myth of American politics—the myth of the Good America taught in high school civics courses—that the United States is a virtuous society, motivated by peaceful intentions and democratic ideals, including free speech.

He told another story, of a bad America, familiar to Native and African Americans as well as other minorities. He exposed in public an original sin that dared not speak its name: that Americans' self-image was self-deception, hypocrisy, camouflage, and rationalization; that the United States was basically cruel and callous.

While most people see themselves as proud members of the Good America, their actions went in another direction. Many used the folk wisdom of democracy to reject the speech. They believed that the speech and the speaker were not only ridiculous and offensive, but also dangerous, and that Churchill should be fired.

Churchill spoke the story of Bad America. But, ironically, he acted in the spirit of the Good America, where speech was free and even the unspeakable could be spoken. The violent public reaction went in the other direction, ignoring the Good America and acting out the Bad.

We should have liked to believe that the American legal system was a part of the Good America, that it would at least redress the balance and allow Churchill to speak without penalty. Instead it ruled that Churchill could indeed be investigated, disciplined, and punished for his speech and that, shockingly, he did not even have a right to legal appeal. Churchill's experience teaches him, and us, to be very skeptical about the America to which we really belong.

CNews 11July09

Amazing how the DBAB's development of m4d legl sk11z coincides so perfectly with Judge Naves' decision in the Professor Doctor Indian Ward Churchill v Everybody Else case. Maximilian Forte, Marc Tyrell, Peter "Pip! Pip!" Kirstein (America's Dumbest Professor), ad nauseam... legal scholars of the first water, one and all.
[ed. note: In the following excerpts, all links, scare quotes, errors, omissions, and fatuous stupidities are sic]

Forte:

The point is that regardless of your politics or your feelings about Churchill, Naves’ “judgment” is universally repugnant, only praised by those whose obsessions have driven them to the feed on the bottommost residue of their ideological septic tanks. While the lead legal blog covering the trial argued that Churchill had been denied even a Pyrrhic victory, the fact is that the Pyrrhic victory belongs now to the University of Colorado, its ruling clique, and all academics who support or abide by this decision, since it represents the loss of free speech and academic integrity.

Tyrell:

“Justice” Naves decision also breached several other Constitutional guarantees in addition to Freedom of Speech. In particular, he has allowed a small coterie of people who mask a religious doctrine in politics which is further masked as scholarship to be both judge and prosecutor in a State institution, thereby breaching the separation of Church and State.

Kirstein:

The judge’s argumentation was that C.U. and Ward Churchill were irreconcilable and that his presence would contribute tension and disruption to the Boulder campus. This essentially gives a “hecklers’ veto” to the university. The issue is not one of equipoise but justice; the issue is not whether to tolerate only consensus academicians who teach without controversy but to permit critical thinking and even controversial pedagogy in the classroom; the issue IS whether a democratic society can tolerate a tenured faculty member at professor rank being fired for an article which attempted to balance the 9/11 fury at Al Qaeda with a call for introspection and the meaning of a glutinous, bureaucratic capitalism.

CNews 10July09

The Daily Camera presumes to know what's best for CU (ht Leah)

Face the State cartoonist Milton establishes the No Fraud Left Behind employment program (ht Waldo Pepper)

CNews 9July09

Over at DU Sturm College of Law's Race To The Bottom blawg, Charlene Hunter returns and sees that the race is not always to the eloquent in her post "Pat O'Rourke's Clever Trap" (ht Leah)
Excerpt:

Back in 2007, O’Rourke saw ahead to the possibility of needing to use the quasi-judicial immunity defense.“I know that I’m never going to be able to beat David in terms of courtroom drama – he’s very good at what he does, so I’ve got to try to create some legal openings somewhere else in the case,” O’Rourke replied when I asked him about his strategy.

[...]

Mr. O’Rourke’s initial Motion did not mention the Stipulation agreement to explain why quasi-judicial immunity applied in this case. If it had, Lane would have been alerted at that point and used his Response brief to try to counter the assertion. Mr. Lane’s Response to the Motion only noted, rightly, that CU had waived its 11th Amendment immunity, and that quasi-judicial immunity applied to individuals, not to entities such as CU. No reference to the Stipulation, which infers that Churchill’s attorneys did not even then see the trap. It was not revealed until Mr. O’Rourke’s Reply when he quoted the phrase in the Stipulation agreement that gave the reason the usual limitation to individuals did not apply in this case. That would have been the last word in briefing arguments (and one can only think that Pat O’Rourke planned it that way) except that Judge Naves ordered additional briefs be submitted on the issue. The briefs did not offer any new arguments, but probably added protection to the ruling being overturned.

...and, in another post ("Looking Closer At Judge Naves' Order"), Ms. Hunter iterates through the Judge's  reasoning (ht Leah again)
Money shot:

The Order is exhaustively thorough, as would be expected from a judge who anticipates the judgment will be appealed. The rationale for each decision is clear, logical and supported with case law and evidence. As Mr. Lane himself has noted, it will be a difficult job to have it overturned.

Marc, you tell so many whoppers here that’s its hard to know where to begin.

First, you falsely accuse the CU administration of “subversion of faculty process”. The truth is that every faculty committee at CU unanimously found Churchill guilty of research misconduct worthy of sanction. The Faculty Senate does not want Churchill back. The process worked.

Second, you falsely accuse Judge Naves of needlessly holding a trial. The truth is that the attorneys for both sides agreed to postpone the immunity decision until after the trial.

Third, you falsely accuse Judge Naves of being “creative” in granting the regents immunity. Had you read his decision, you’d see that he cited extensive case law in support of his decision.

I don’t like the immunity case law any more than you do, and I agree that it stinks for academic freedom plaintiffs. But place the blame for this state of affairs where it belongs — on Congress and the Supreme Court — not Judge Naves.

Churchill’s attorney, David Lane, said the former ethnic studies professor is only concerned with regaining his job at CU. Lane said it would be hard for Churchill to leave a community where he has lived and worked for years.

“He’s still writing and researching, but I don’t know how many options he has,” Lane said. “He’s lived in Boulder for decades, and I don’t know if he wants to uproot his life to live somewhere else. CU has spent the last four years trashing his reputation, so I don’t know how many schools would hire him at this point, given the hatchet job CU has done.”

'Hachet job'? Isn't that sort of, you know, racist?

“I think the department is headed in the right direction,” [ES chair Al] Ramirez said.

[...]

Associate professor Emma Perez will now lead the department.

Let those who abide silently, suffer in silence — and I mean suffer the ultimate indignity of not being able to truly communicate, and communicate truthfully, when they sacrificed so much to enter a career whose [sic] primary basis is communication.

CU will bill Churchill for legal expenses

Breaking News: We contacted CU defense attorney Patrick O'Rourke this morning via email and learned that he intends to bill Churchill for out-of-pocket legal expenses, such as deposition transcripts, out-of-state travel, and witness fees. "We haven't totaled those yet," O'Rourke told us, "but those expenses will probably be significant."

In regards to attorney's fees, however, Mr. O'Rourke notes:

[Churchill] brought suit under a federal civil rights statute, 42 U.S.C. 1983. When a plaintiff is a "prevailing party" under that statute, his attorney is entitled to a "reasonable fee" under another federal civil rights statute, 42 U.S.C. 1988. That statute normally allows the attorney's fees to be awarded in favor of a successful plaintiff, but does not normally create the same entitlement for a successful defendant. I saw that one of your readers posted a suggestion that the University might be able to recover attorney's fees under Colorado law for prevailing on a Rule 12 motion, but my motion wasn't filed under that particular rule, so Colorado law isn't much help either on attorney's fees.

CNews 8July09

As a counterpoint to Russell Means' preposterous bluster yesterday, Jodi Rave's post this morning is hard to beat
Excerpt:

As a former Churchill student and CU graduate, I’ve long taken a stand against Churchill who I’ve maintained was an academic fraud who pretended to be a Cherokee. I’ve always had a hard time understanding why any Native man or woman would stand beside him and defend such a vile man who has repeatedly shown hate against Native people. If anyone read the affidavits written by Native people they could see the disdain he had against people he purported to defend.

Are Native people really that desperate for a hero?

In effect, Judge Naves has, unless reversed on appeal, sanitized CU of the taint of the jury’s decision that CU terminated him not for research misconduct, but for expressing his first amendment rights in violation of the Constitution.

Thus, not only is Churchill not entitled to the $1 jury award and the vindication the award represented, but his attorneys cannot seek reimbursement of their attorney fees conjectured to be over $1,000,000 since Churchill did not prevail in his Section 1983 first amendment claim.

Most of this cost would never have been incurred by Churchill and his attorneys (or, for that matter, the jury’s time in sitting through a month long trial) had the issue of quasi-judicial immunity been determined before trial by Judge Naves through a motion for summary judgment that as a matter of law CU would prevail.

In the trial's closing arguments, Churchill's attorney portrayed CU as a nest of liars in thrall to the "master narrative" of history that Churchill had bravely tried to counter. "The master narrative," David Lane said, "has been the master narrative for hundreds of years because basically the white guys in suits write history."

They do, do they? On Tuesday, it was a black guy in a black robe who authored a sterling chapter in the judicial history of this state, one that helps to reclaim the meaning of scholarship. One can only imagine the grotesque conspiracy that Churchill will claim to discern in that.

...and the DP gets personal injury & criminal defense attorney Scott Robinson to opine on the inevitability of a Churchill appeal (spoiler: it's inevitable) (yet again via DrunkaWokeUpEarlierThanUsThisMorning)
Excerpt:

[I]s it in the least "judge-like" to publicly denounce a litigant before trial, as the regents did Churchill, in an ill-advised resolution approved in February 2005, long before allegations of research misconduct surfaced?

In that unanimous resolution, the regents proclaimed that Churchill had brought "dishonor" to the university through his unabashedly unpatriotic 9/11 essay, "welcomed" his resignation as the chair of the Ethnic Studies Department, and apologized "to all Americans" for Churchill's "disgraceful comments."

Not really very judge-like behavior, by any definition, and certainly, grounds for recusal in any courtroom in the land.

This case thus pits liability-law social policy against free-speech entitlement, with Naves' decision representing only the most recent chapter in the Churchill saga, which is nowhere near final resolution.

Mr. Churchill's lawyer, David A. Lane, responded to Judge Naves's ruling by announcing plans to appeal. In a statement e-mailed to The Chronicle, the lawyer said, "The message in this ruling is that if your First Amendment rights are violated by the University of Colorado, don’t look to Denver District Court for justice, because justice did not prevail in this instance."

The crowing by the University of Colorado administration after the latest twist in the Churchill case illustrates this claim pretty well. Provost Phil DiStefano seems to have huffed a few lines of Hogwarts Ambiguity Powder to keep a straight face while dubbing CU’s trampling on Churchill’s academic freedom, subversion of faculty process and transparent political thuggery “a victory for faculty governance.”

[...]

Yessir, Naves says, the Regents are immune from legal liability because—here’s the creative part—he thinks they’re kinda like judges, a “quasi-judicial body.” They can’t be sued for decisions taken in relation to their jobs. (Unlike faculty at public institutions, who a growing web of hostile law says can be retaliated against for disagreeing with the thugs and political hacks who boss them.)

Now, the law doesn’t actually come out and say the Regents are immune—that’d be too pedestrian and straightforward. You need a good Reader and Thinker to see that.

As RaceToTheBottom points out, Naves could have spotted this analogy of Regents to judges, and the corresponding immunity from lawsuits before the trial, and spared Churchill the expense of a month-long hearing. But before the trial—not knowing its inconvenient result—Naves didn’t need this clever (and false) analogy.

Look for this stinker to be reversed on appeal. And if it isn’t—whoa, nelly. Strap on for a wild ride. Increasingly the Law says administrations have academic freedom—and you don’t.

Associate professor of cultural studies Marc Bousquet, author of the above (and our first nominee for PB's Cheyfitz Memorial Dead Rat And A String To Swing It With Award), has been a reliable flack for Churchill for a while now. We first noticed his superlative toadying in a July 21, 2008 post.

Churchill criticized the decision. "What [Judge Naves is] saying, in essence, is they were not prepared to treat me as any other faculty member would be treated, which was all I ever required."

He said he would appeal. "I will continue to deal with it until the day I drop," he said.

Awwwwwww Part IV

Russell Means checks in with his as-always reasoned & balanced (and completely unrehearsed) take on today's decision, written (allegedly) in response to Truthforce's lament. (ht Leah):

If you’re an American Indian in the United States of America, whether you are a Lakota or a Navajo, a tenured professor or a Nobel Peace Prize winner, or an elected president of another country, you will not receive justice in any form from the white people of America. 

They attacked Vine Deloria, Jr. (on the day of his funeral), Rigoberta Menchu and Evo Morales. An Indian on a reservation can’t get justice. And a tenured professor can get unconstitutionally thrown out, vindicated by a jury of his peers in a court of law, and it doesn’t matter.

Everyone I’ve named cannot fight back. Evo Morales has to worry about being the president of a country; Rigoberta Menchu has to continue working for her people. Vine Deloria is dead.  Indian people on reservations have no power of any kind. Only Ward Churchill has the ability to fight back and win, and it’s still not good enough. They still quash him.

The American Indian has been living at Guantánamo Bay since the founding of the United States of America.

Awwwwwww Part III

The statement of CU-Boulder Chancellor Phil DiStefano:

The judge's decision today is a victory for faculty governance. It reinforces the idea that faculty set the standard for academic integrity on our campus and all campuses across the country. His decision reinforces the notion that faculty establish research standards, abide by them and enforce them.

The judge elected not to expose us to a double standard. Professor Churchill was found to have committed research misconduct by a number of committees. The judge recognizes that we cannot hold one faculty member to a different standard than we hold the rest of the faculty and the students. To have that double standard would have been very harmful to the campus.

This is not an issue about free speech or about academic freedom. This is an issue about research misconduct. I said back in 2005 and again in 2006 that Professor Churchill's speech is protected. However, there were numerous allegations of research misconduct that needed to be investigated and we did so. A number of faculty committees reached a consensus there was research misconduct.

Awwwwwww Part II

Over at the future ex-blog of Churchill's dog, Benjie, Churchill's future ex-wife, Natsu "Truthforce" Saito laments:

July 7, 2009

On April 2, 2009, after hearing evidence for a month, a Denver jury unanimously found that Ward Churchill had been fired from the University of Colorado not because of research misconduct but in retaliation for speech protected by the First Amendment.

After more than four years of political attacks on Ward Churchill, a clear statement had been made:  the University of Colorado had violated the U.S. Constitution when it fired Churchill, a tenured full professor of American Indian Studies.

The normal remedy in such cases?  Reinstatement.

Today, July 7, 2009, Judge Larry Naves of the Denver District Court threw out the jury’s verdict, adopting the University’s argument that the Regents have “quasi-judicial” immunity from such lawsuits.  In essence, this means that the Regents and University administrators are free to continue to violate the Constitution.

In a 42-page opinion lifted wholesale from the University’s pleadings, Judge Naves went on to explain why Ward Churchill should not be given front pay, back pay, or be reinstated.

All of these are irrelevant, of course, if the jury’s verdict is not upheld. But the fact that the judge went to such pains to adopt the University’s arguments — which often directly contravened the factual record in this case — speaks volumes.

This ruling simply confirms what we have observed so often.  When given access to the facts, regular people on the street can make clear, reasoned decisions that uphold constitutional values.  It is rare, however, to find persons in positions of power who will not bow to political pressure.

Attorney David Lane will, of course, appeal this decision.  Ward Churchill’s reaction?  “I can’t think of any way to improve upon Steve Earle’s line from The Hard Way:  ‘There are some who break and bend.  I’m the other kind.’”

...and in an earlier post, Benjie achieves bathetic perfection by accusing Naves of, yes, plagiarism (all emphasis in the original):

Y’know an interesting exercise might be to compare portions of Judge Naves’ ruling to, say, some of CU’s motions.

For instance, I stumbled on this line in Naves’ ruling:

Professor Churchill argues that the University is not entitled to quasi-judicial immunity because the University waived its Eleventh Amendment immunity, but Professor Churchill’s response mistakenly assumes that Eleventh Amendment immunity is the same thing as quasi-judicial immunity. They are separate immunities.

Something about it struck me as oddly familiar. So, having way too much free time, I flipped over to CU’s Reply Brief In Support Of Motion For Judgment As A Matter Of Law Quasi-Judicial Immunity, did a quick search, and found this:

The University concedes that it has waived its Eleventh Amendment immunity, but Professor Churchill’s response mistakenly assumes that Eleventh Amendment immunity is the same thing as quasi-judicial immunity. They are separate immunities.

I’m no kind of lawyer, but it doesn’t seem entirely on the up-and-up for a judge to simply copy portions of his ruling verbatim from motions filed by one side or the other. If nothing else, it’s plagiarism, right? Which is pretty ironic, given the case and Naves’ ruling for CU.

Awwwwwww

In a resounding defeat for ousted University of Colorado professor Ward Churchill, a judge decided Tuesday to neither give the controversial professor his job back at CU nor award him any financial compensation for his dismissal from the school nearly two years ago.

The ruling from Chief Denver District Judge Larry Naves, which was released this afternoon, comes in stunning contrast to a jury's verdict from a civil trial Churchill brought against the school earlier this year, in which six jurors determined that CU had unlawfully stripped Churchill of his job for expressing his political beliefs in a controversial essay he wrote about the Sept. 11, 2001 attacks on the United States.

The judge's ruling puts to an end a 4 1/2 year saga that generated headlines across the nation and set talk radio abuzz, with politicians, academicians and pundits locked in debates over patriotism, the limits of free speech on campus, and what constitutes academic misconduct.

Let the wailing and gnashing of teeth (not to mention the endless appeals) begin!

...and just because good news bears repeating:
Judge rules Churchill will not get job back
No job, no money for Ward Churchill
Colo. Prof In 9/11 Flap Loses Bid To Reclaim Job

Update: Judge Naves decision (pdf; ht Leah (again!))

Update II (Churchill, hoist by his legal sock-puppet's petard department) (from Judge Naves' decision):

If I granted reinstatement I believe there is a substantial likelihood that there would be future disputes about the propriety of Professor Churchill’s academic conduct, as well as the Department of Ethnic Studies’ ability to evaluate the probity and veracity of his scholarship. Those disputes would necessarily raise the question of whether the University has retaliated against Professor Churchill, especially given Professor Churchill’s counsel’s post-verdict statements, such as, “Anything that is deemed retaliatory is another lawsuit. If they look at him cross-eyed, they could very well end up back in court.”

Update III (Churchill, hoist by his own petard department) (from Judge Naves' decision):

I rely upon Professor Churchill’s statements demonstrating his hostility to the University. His statements illustrate that reinstatement, as a practical matter, is not likely to create productive and amicable working relationships.

Update IV (Churchill, hoist by his own petard department) (from Judge Naves' decision):

Professor Churchill’s own statements during the trial established that he has not seriously pursued any efforts to gain comparable employment, but has instead has chosen to give lectures and other presentations as a means of supplementing his income. Reportedly, he even “received a few job offers” that he declined to pursue. [...] Under these circumstances, I do not believe an award of front pay is appropriate.

Update V (from Judge Naves' decision):

The evidence was credible that Professor Churchill will not only be the most visible member of the Department of Ethnic Studies if reinstated, but that reinstatement will create the perception in the broader academic community that the Department of Ethnic Studies tolerates research misconduct. The evidence was also credible that this perception will make it more difficult for the Department of Ethnic Studies to attract and retain new faculty members. In addition, this negative perception has great potential to hinder students graduating from the Department of Ethnic Studies in their efforts to obtain placement in graduate programs.

To avoid this unnecessary cost and complexity, the University agreed to waive its Eleventh Amendment immunity, thus allowing direct claims to be brought against the University and the Board of Regents. In return for the ability to bring direct claims, however, Professor Churchill agreed that the University acquired the ability to assert any defenses that would be available to individual Regents. [...] Therefore, because quasi-judicial immunity was a “defense that would have been applicable to any of its officials or employees” it is a defense available to the University and the Board of Regents.

Update VI: DrunkaBlech reports Churchill's legal sock-puppet, David Lane, will be holding a press conference at 4pm today. Drunka's live-blogging coverage from Crapless & Silverfish*

Update VII: We missed this first read-through, but Judge Naves also VACATED the jury award (the infamous One Dollar Victory™). Great catch, Amy! @sspats be upon you!

Update VIII (and apropos to nothing):

The sneer is gone from Casey's lip, his teeth are clinched in hate;
He pounds with cruel violence his bat upon the plate.
And now the pitcher holds the ball and now he lets it go,
And now the air is shattered by the force of Casey's blow.

Oh! somewhere in this favored land the sun is shining bright;
The band is playing somewhere and somewhere hearts are light,
And somewhere men are laughing and somewhere children shout;
But there is no joy in Mudville -- mighty Casey has struck out.

 *  ©2006 Churchill's dog, Benjie. All Rights Reserved. Used without permission.

Tech Note

CNews 2July09

Sloppy writing and blatant hero worship mark two of DU Sturm College of Law's Race to the Bottom's "reportage" of the Ward Churchill reinstatement hearing yesterday.

First, their color commentary
Excerpt:

While the witnesses—especially Professor [Richard] Jessor—spoke passionately about the importance of research integrity to maintain academic standards, this is a pretty esoteric concept.

In the end, CU had only speculation that the sort-of-proved allegations of research misconduct would so damage the University’s reputation as to affect hiring and enrollment.

Professor Churchill’s testimony was—as ever—eloquent. He emphasized that he filed a lawsuit as “a matter of principle to preserve the concept of academic freedom, which is to say that political powers cannot silence professors because they disagree with their beliefs.” (all quotes approximate) “And to obtain justice, restitution, restoration to the position that jury found I was illegally removed from.”

CNews 1July09

Today's the day. We'll post news, most recent first, of Professor Doctor Indian Ward Churchill's reinstatement hearing as we learn of it.

DrunkaRadioyente wraps up the Crapless & Silverfish hearing coverage quite nicely


Testimony ends, ruling on reinstatement expected early next week (Daily Camera)
Excerpt:

Before court ended, Churchill attorney David Lane cross-examined CU Chancellor Phil DiStefano on the stand.

He asked the chancellor what the appropriate remedy is -- given a jury's finding earlier this year that CU violated Churchill's constitutional rights -- short of giving his client his job back.

"If he didn't commit research misconduct, I would support him coming back to the university," DiStefano said.

"If Ward Churchill were reinstated, in terms of reputation, do you think it (the university) would suffer?" CU attorney Patrick O'Rourke asked Todd Gleeson, the dean of the college of arts and sciences.

"I believe it would suffer nationally," Gleeson said. "It taints the department with a reputation of having standards that don't match our national or campus expectations of scholarly work."

CU attorney Patrick O'Rourke immediately pounced on Churchill's assertion that he is not after money in the case.

He presented a number of statements Churchill had made in the past about suing for damages and seeking seven figures.

O'Rourke also asked why Lane had made such an issue about awarding money to Churchill during his closing arguments to the jury at the civil trial earlier this year.

Churchill said the more important factor was that the jury found CU violated his constitutional rights.

"It was never about money," Churchill said. "There were three other components to that verdict and they did exactly what I wanted them to do."

"They are lining up to take classes with Ward," Emma Perez said. "In the academy throughout the nation people see Ward as a hero."