Professors not opposed to Academic Fraud and Terrorism:

One hundred and ninety-nine faculty members at the University of Colorado at Boulder dishonored their school today by signing an advertisement in the Boulder Daily Camera in support of Professor Ward Churchill. Although the University of Colorado has many distinguished professors, the advertisement makes it clear that the University also has some professors with insufficient concern about academic and professional integrity. The Denver Post article on the ad is here; the Daily Camera ad itself is not on the web--although it would be a good idea for someone to place the ad on the web, as a permanent record of where some CU's faculty stood.

The advertisement purports to defend "Professor Churchill's right to speak what he believes to be the truth." This statement ignores the fact--which is perfectly obvious to to anyone who has been reading Colorado newspapers over the last several weeks--that Churchill is a consummate liar. There is overwhelming evidence--which Churchill has failed to refute in even a minimally plausible way--of the following falsehoods by Churchill:

As detailed by Lamar University's Thomas Brown, Churchill's writings claim that the U.S. Army deliberately caused an 1837 smallpox epidemic among the Sioux by distributing infected blankets. Yet the very sources cited by Churchill state that the epidemic was accidentally spread by travelers and that the army had nothing to do with it.

As detailed by the University of New Mexico law school's John LaVelle in the American Indian Quarterly and the Wicazo Sa Review, Churchill has lied about the 1887 General Allotment Act (falsely claiming that the Act required proof of a certain percentage of Indian blood in order for a person to be eligible to be allotted personal land on Indian reservations) in six books and eleven essays. LaVelle further demonstrates multiple instances of plagiarism by Churchill and of citing sources for the opposite of what they really said.

Churchill's academic career has also included time as Instructor of studio art and art history at Black Hills State College, and he promoted himself as an "Indian artist" until a 1990 law federal prohibited non-Indians from selling their work as Indian art. As detailed detailed by KCNC television, Churchill's 1981 serigraph "Winter Attack" is plagiarized from a nearly identical painting by the renowned artist Thomas Mails. Churchill merely reversed the left-to-right imagery, and colored a bush green.

"Professor Churchill's right to speak what he believes to be the truth" does not protect Churchill's apparently false claims that he received paratrooper training the Vietnam War, and that he served in a long-range reconnaissance patrol unit--although his military records show that he was instead in the motor pool. Mount Holyoke history professor Joseph Ellis was stripped of his endowed chair and suspended without pay for a year because of similar lies about his own Vietnam record.

As detailed by KHOW's radio's Dan Caplis and Craig Silverman and by the Pirate Ballerina weblog, Churchill's entire academic career has been based on advancement through his bogus claim to be part Indian.

The CU 199 purport to "defend an environment in which ideas may be openly exchanged." Yet Churchill himself has attempted to destroy such an environment, at CU and around the nation. Two former students have alleged that their grades were lowered in retaliation for their exercise of freedom of speech. (One student wrote a campus newspaper article reporting the evidence that Churchill is not an Indian; another student suffered retaliation for disagreeing with Churchill's statements in class that the 1995 Oklahoma City bombing was a good thing.) A CU professor reported that Churchill physicially threated her because she favored naming a building after a retired administrator, rather than after an Indian tribe, as Churchill preferred. Churchill called for the murder of anarchist writer Bob Black. He called for the death of a student newspaper cartoonist who had criticized a racist professor in Hawaii who wrote about her fantasy of mutilating and killing a white woman.

Although CU professors are required by state law to sign an oath to support the Constitution of the United States and the Colorado Constitution, Churchill has repeatedly called for the violent overthrow of the U.S. government, and has urged his audiences to perpetrate 9/11 type terrorist attacks in the United States. In doing so, he has provided explicit instructions about where the attacks should take place, and how the attacker should dress so as to be able to get to the target.

Now perhaps Churchill has credible defenses to the above charges, but if so, we have not yet heard them. There is overwhelming evidence that the University of Colorado's current investigation of Ward Churchill's conduct is well-grounded. For the CU 199 to claim otherwise is foolish. The CU 199 allege that to investigate Churchill undermines "the very idea of the university itself." To the contrary, the very idea of a university depends on professors who do their work honestly, rather than with fraud and plagiarism, and depends on professors who respond to their intellectual foes by using counter-arguments, rather than by threatening and promoting violence and homicide. That 199 professors could defend a fraudulent thug and bully like Ward Churchill shows how very far the University of Colorado has fallen from the very idea of a university itself.

UPDATE: Although the CU 199 never say so explicitly, the ad appears to adopt the theory of Churchill's attorney, David Lane, that none of Churchill's litany of misconduct can be the basis for firing him, because the current investigation of Churchill was started by the Regents after Churchill's infamous "little Eichmanns" essay became the subject of public controversy. The ad from the CU 199 states that "the investigation of Professor Churchill's scholarly record has been initiated in direct response to criticisms of his ideas and without any prior format complaint of specific professional or academic misconduct on his part."

The claim of the CU 199 is wrong as a matter of fact, and as a matter of law. According to articles in the Denver Post and Rocky Mountain News (Post archives are available on the web; Rocky archives are not), there have been repeated complaints made to the administration about Churchill's misconduct in the classroom and his threats. Furhter, as reported in Westword in 1994, the National American Indian Movement filed a complaint with the University of Colorado about Churchill's ethnic fraud. As was the norm at CU, none of these complaints appear to have resulted in any administrative action. Given such repeated failures, it is within the Regents' discretion to order their own investigation.

Further, as the Second Circuit case of Jeffries v. Harrelston makes clear, there was nothing improper about the initiation of an investigation following the uproar regarding Churchill's hateful comments. In Jeffries, the head of the Black Studies Department at the City College of New York was stripped of his chairmanship following the uproar resulting from a crackpot racist speech he gave in Albany. The Second Circuit explained that the City College Regents could demote Jeffries "based upon a reasonable prediction that the Albany speech would disrupt university operations." The CU Regents certainly had the right to order the torpid CU administration to conduct an investigation of similar issues. (Although ordered by the Regents, the investigation is being conducted by three CU administrators, two of whom appear to have brushed off previous complaints about Churchill.)

Implicit in the ad from the CU 1999 is that the issues of academic fraud and plagiarism are off-limits because no-one has made a "formal complaint" to the CU administration. But there is no rule that a university must blind itself to a professor's fraud and other misconduct unless someone files a "formal complaint." There certainly should be an inquiry, however, about why the CU Arts & Sciences administration failed to take action following the publication of Professor LaVelle's articles in the late 1990s, and failed to respond to a formal complaint which someone filed with CU about Churchill promoting terrorism at a speech in Minnesota.

Moreover, Churchill's book on the Justice of Roosting Chickens, which contains the "little Eichmanns" essay, is itself a very fit starting point for an inquiry into Churchill's scholarly competence; most of the book is a crackpot history of the United States, filled with obviously incompetent statements. Churchills calls George Washington was "the richest man in North America" during the revolutionary war. Churchill writes about "Future president Alexander Hamilton." He asserts that white people "demonstrably perpetrate crimes at rates as great or greater than persons of color." For this last claim, he supplies a footnote which does not support the claim; in fact, whether one relies on victim surveys or on arrest data, data overwhelmingly show higher crime rates among people of color. Churchill tells his readers that in 1980 the CIA operated in Jamaica "subverting military and police officials into undermining and ultimately deposing the liberal left government of Michael Manley." Actually, Manley did charge that his political opponent, Edward Seaga, was supported by the CIA, but Manley was not deposed; he lost the 1980 election, then returned to power after winning the 1989 election.

In short, the Jeffries case affirms that Regent concern about the disruptive effects of Churchill's hate speech was a lawful, constitutional grounds for commencing an investigation of Churchill's academic record. Although the University of Colorado's administration had repeatedly failed to take action in response to formal complaints about Churchill, the Regents' investigation is under no stare decisis requirement to emulate the administration's errors. Nor are the Regents obliged to ignore additional, substantial evidence of misconduct which has been uncovered by the media in recent weeks. The media have a First Amendment right to write articles and produce radio programs on subjects of interest to their audience and themselves. Churchill has no First Amendment right to silence the media simply because media interest in him was initially provoked by his mean-spirited essay celebrating the 9/11 attacks. Nor are the Regents or the CU administration required by the First Amendment to blind themselves to the new evidence of Churchill's misconduct which the Colorado media have been exposing on an almost-daily basis.

Churchill should not be fired because he is a hate-monger, but the CU Regents have the legitimate authority to investigate whether Churchill's hate-mongering disrupts the University of Colorado, and they have no duty to ignore evidence which is brought forward by third parties that Ward Churchill is an academic fraud. Nor are the Regents obliged to ignore the catastrophic liability that CU could face if one of Churchill's acolytes follows Churchill's instructions to perpetrate a 9/11 style terrorist attack.

The CU 199, however, simply elide these issues. Some of the 199 have impressive records of scholarship in their own specialties; others appear to be politically correct hacks. But the terrible judgement of 199 faculty members in attempting to protect a bully who is unfit to teach in any institution, let alone a state's flagship university, will provide prospective students and parents with further reason to doubt that true intellectual diversity and freedom can be found at CU Boulder.

Ward Churchill and the Jeffries Case:

Stone Court raises some interesting issues regarding my recent post regarding the 199 University of Colorado professors who signed a petition demanding the termination of the Regents' inquiry about Ward Churchill's misconduct.

Jeffries is a Second Circuit case in which the Supreme Court, pursuant to the recently-decided Supreme Court case Waters v. Churchill, reversed a previous decision of the Second Circuit. On remand, the Second Circuit upheld the decision of the Regents of the City College of New York to strip Jeffries of his chairmanship of the Black Studies Department, because of the Regents' reasonable concerns that Jeffries' off-campus racist speech would disrupt the operation of CCNY. Although Jeffries is a Second Circuit case, the Supreme Court's involvement gives the case national significance; Jeffries is an important case suggesting that the University of Colorado Regents' investigation of Churchill, based on the disruptive effects of Churchill's own hate speech, is perfectly lawful. And accordingly, the CU 199's assertion that the investigation is a violation of the First Amendment is extremely implausible.

Stone Court does not seriously dispute this point, but instead raises a separate issue from the Jeffries case. Waters v. Churchill set a fairly loose standard for the dismissal of public employees based on the potentially disruptive effects of employee speech. In the Second Circuit remand, an amicus brief from a group of university professors urged the Second Circuit to carve out a special academic freedom exception to Waters v. Churchill. The Second Circuit declined to do so, explaining that there was no need to consider the issue, because Jeffries had not lost his academic freedom; he was still teaching at CCNY. Stone Court argues that Jeffries stands for the proposition that Ward Churchill cannot be fired.

This misses the main point of my post--which was to refute the CU 199's assertion that the investigation of Ward Churchill is improper and must be terminated immediately. To the contrary, Jeffries validates an investigation begun because of the potential disruption caused by Ward Churchill's speech.

One can imagine all sorts of sanctions which the CU Regents might impose short of firing. For example, Churchill could be barred from campus until he successfully completes a therapy program for his inability to control his anger. He could be ordered to write formal retractions of the various academic frauds he has perpetrated. He could be ordered to pay full compensation to the copyright holders for the various works he has plagiarized.

But in the Ward Churchill case, I think that termination would probably be the proper remedy, and that Jeffries provides Churchill with less protection than Stone Court realizes. That the Second Circuit declined, on the facts of the case, to consider whether to create an academic exception to Waters v. Churchill does not mean that the Second Circuit (or, more relevantly, the Tenth Circuit) would create such an exception in a case where the issue was properly before the court. There is no such exception currently in the law, although the Second Circuit's statement in Jeffries does at least imply that creating an exception would be worth a court's consideration, in a proper case.

So if the CU Regents fire Churchill because of the disruptive effects of his speech, it's possible that the Tenth Circuit might create a Waters exception for Churchill's benefit. But the possibility that such an exception might be invented by some court in the future does not mean that the Regents' investigation is presently improper, or that firing Ward Churchill pursuant to the black-letter law of Waters v. Churchill would be a violation of the Regents' obligation to obey the First Amendment as it is currently interpretted.

Moreover, the history of the Jeffries case is hardly helpful to Ward Churchill. After the trial in the Southern District of New York, district Judge Conboy lambasted CCNY for demoting Jeffries solely because of Jeffries' off-campus hate speech, despite an abundance of evidence which clearly would have supported demoting (or firing) Jeffries and would have left him with no First Amendment counter-argument. For example, Jeffries had threatened to kill a student newspaper reporter. Judge Conboy also affirmed that the First Amendment does not require colleges to subject their students to the classroom ravings of incompetent "pseudo-scholars."

As my previous post argued, there appears to be an abundance of evidence to support the termination of Churchill's employment, on grounds which offer Churchill no shred of a First Amendment argument. Such grounds include academic fraud, and violation of the Colorado statute requiring all public university professors to take and obey an oath to support the U.S. and Colorado Constitutions. Well-established Colorado caselaw affirms that such an oath is violated when a professor calls for the violent overthrow of the U.S. and Colorado governments, as Churchill has done repeatedly.

Much of the evidence of Jeffries' professional misconduct (which CCNY failed to use when demoting Jeffries) was brought to public attention as the result of the public uproar following Jeffries' hate speech in Albany. By castigating CCNY for failing to base its actions on such evidence, Judge Conboy implied that it would be proper for a college to use such evidence as grounds for disciplining a professor. Accordingly, the assertion of the CU 199 that the University must ignore the developing evidence of Churchill's misconduct is implausible.

One small point: I criticized the University of Colorado administration for failing to act on complaints about Churchill's misconduct (including a violent threat against another faculty member) which were brought to the administration in the 1990s. Stone Court writes: "The unstated premise of Kopel's claim is almost certainly that the system was broken for Churchill because his political views were beloved by the alleged prevailing left-wing university establishment." Not so. I don't know if Churchill was simply the beneficiary of lax enforcement of rules for faculty in general; even today, the administration does nothing to enforce the university rule that professors should not politicize their classroom or verbally attack students because of the students' political views. Alternatively, if the administration was specially lax with Churchill, the reason might be that Churchill received favorable treatment on "diversity" grounds, because he was (supposedly) an American Indian. The latter theory is especially plausible because University records show that Churchill was hired for an affirmitive action job counseling minority students, was later given a teaching position, and was later pushed for tenure by the administration (two departments rejected him, but a third aceded to the administration's request) based on the adminstration's belief that Churchill is an Indian.

The First Amendment Defense of Ward Churchill:

Many academics and commentators continue to make the bald assertions that:

1. The CU Regents' investigation of Ward Churchill violates his First Amendment rights, and

2. Because of point 1, nothing that is brought forward during the investigation--even material brought forward by private citizens, rather than by the investigators--can be used against Churchill.

I have two challenges for people who persist in making these assertions:

1. Please explain why the investigation is a violation of the First Amendment, notwithstanding the Supreme Court case Waters v. Churchill, which allows a government employer to fire an employee because the employee speech harms the employer's ability to carry out its mission, as I discussed in a previous post. Note that the question of whether the fully-developed facts of the Ward Churchill case would support firing Ward Churchill under the standards of the Waters case is distinct from whether the CU Regents can investigate whether such facts exist. Explain why mere investigation is prohibited by existing First Amendment doctrine as elucidated by Waters.

2. Hypothesize that the Waters case does not exist, and rather that the pretend First Amendment of Churchill's defenders is the real First Amendment. Please explain why, even assuming that the investigation of Ward Churchill is improper, no fact discovered during that investigation can be used to fire Churchill. In particular, remember that "fruit of the poisonous tree" is criminal law doctrine for the exclusion of certain evidence, but does not apply to labor law or First Amendment law.

Imagine that a particular employee at a factory makes a speech, off the job, and says "All workers in town, especially at the factory that employees me, should be unionized." The employer decides to investigate the worker. The employer's investigation discovers that the employee has been producing defective products, making violent threats against female employees, and has committed many other acts which are plainly fireable offenses.

So the company fires the employee. He brings a lawsuit, and complains that the real reason he was fired was because of his legally-protected speech.

My understanding of the law--and I invite people with greater expertise to explain why I'm wrong--is that the issue of retaliatory discharge is a jury question. For example, the fired employee might show that the employer has consistently tolerated and promoted employees who make violent threats against women; thus, the jury might conclude that firing the lone employee because of his threats was merely a pretext, and that the real reason for the firing was because of the speech. If so, the jury would rule in favor of the employee.

Hypothetically, Ward Churchill might be able to show a jury that CU tolerates academic fraud, violent threats, encouraging the violent overthrow of the U.S. government, and other violations of University rules. Thus, Churchill might win his lawsuit, by convincing the jury that his discharge was motivated by speech, rather than by his misconduct.

Alternatively, a jury might credit the testimony of CU President Betsy Hoffman that she would never allow any professor to be disciplined because of his speech.

It's all a jury question, isn't it? I don't doubt that Churchill's attorney David Lane would allege that Churchill's (hypothetical) firing was retalition for his speech. I don't need a summary of the various facts that Lane might marshall, or of the various rebuttal facts that CU might present. What I'm asking for is how the heck Churchill's defenders can assert as a matter of law that nothing in the Churchill investigation can be used as a basis for firing him? Precisely what is the legal basis of their alleged exclusionary rule, if we hypothesize that the investigation of Churchill violates the First Amendment?

If people want to argue that "true First Amendment values" or "the spirit of the First Amendment" create some kind of immunity for Churchill, they're free to so argue. But I'd like to know if there's a serious argument, based on First Amendment doctrine as it actually exists in March 2005, which proves as a matter of law that the investigation of Ward Churchill is improper (notwithstanding Waters v. Churchill) or that, even if the investigation of Churchill is improper, nothing from that investigation can be used against Churchill.