Rule of Law?
Posted By Marc on July 10, 2009
Q: Since when are university regents “administrative officials performing functions analogous to those of judges and prosecutors” (quoted here)?
A: Since July 7th, 2009.
This quote, from Chief Denver District Judge Larry Naves, delivered in the case of Ward Churchill neatly set aside the actual verdict of the jury, along with his First Amendment guarantee of Free Speech and the entire tenure system in the US. A press conference containing rhetoric reminiscent of that used by as-Sahab described this travesty of the Rule of Law as a “victory for faculty governance”.
How, pray tell, does the exercise of free speech in a non-academic setting now come under the control of a small coterie of pseudo-judges who, apparently, will now enjoy immunity from their actions and be able to engage in any witch hunt they feel like?
In 1970, Ted Carpenter wrote a work entitled They Became What They Beheld
“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.
His argument, apparently, is grounded in the belief that since he could not understand the intricacies of scholarly debate, that should be handled by the “profession” (aka, the U of C regents). I do have to wonder about this, especially in light of the fact that a) the article which sparked the controversy was not an academic article, and that b) only a small group of bigots actually argued at the trial that he had ever committed anything even close to a breach of scholarly ethics.
I have to wonder how far reaching this decision will be? Will Naves’ ruling be taken up by university administrations in other places as “proof” that they can purge any academic who disagrees with them? Will we, for example, see the American Anthropology Association declaring anyone who has the temerity to work with the US military takfir? How will Judge Naves handle the problem when university regents and academic professional associations declare each other takfir?
Postscript
I have not blogged much about the Churchill case since it is more than adequately covered elsewhere, especially by Max Forte at Open Anthropology.
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Excellent piece Marc, certainly one of the best statements I have read on the outcome of this trial, given added weight by the fact that I think you are quite close to what anyone would call objectivity here since it is doubtful that you share Churchill’s political positions.
I have to say that I too would stoutly defend the right of any citizen’s and any academic’s right to free speech, regardless of their political positions. We cannot have a functional democracy, let alone sound universities that do their job, under such regulations.
Of course, in Canada, we do work under some limitations regarding “hate speech”, whose definition and application seem murky to me, and perhaps that was the intention?
[...] Ward Churchill, ward churchill lawsuit, Ward Churchill Trial by Maximilian Forte I recommend this excellent commentary from Marc Tyrell about the meaning of the judgment against Ward Churchill by Judge Larry Naves, along with a video [...]
Hi Max,
You’re quite right that I don’t share Churchill’s position or, at least, the rhetorical parts of that particular paper. OTOH, I’ve never had a problem with his scholarly work even if I disagree with some of his interpretations.
I am, however, a great believer in the concept of “agree to disagree” as the basis for a civilized, and sustainable, society. I truly believe that, as a matter of historical pattern, every time we develop societies that limit civilized thought and speech, we degrade ourselves and open our societies up to destruction.
In the court’s ruling, here, the judge states that,
“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… [t]herefore, 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.’”
So this is not a precedent-setting case in which administrative officials are all automatically granted quasi-judicial immunity from now on (though this is fairly common; for example, such immunity applies to many administrative boards, such as town zoning boards). This immunity was the result of bargaining that occurred in the case, as well as state statute (which is not affected by common law).
In regard to the determination of what the board of regents booted Churchill for, I think that they were careful to boot him for having, “plagiarized, fabricated and falsified some of his work.” Obviously this investigation would not have occurred without the uproar over his 9/11 comments. So this was a disingenuous investigation. On the other hand, Churchill should also have the integrity to acknowledge his actual academic misconduct. Neither party is blameless. This seems analogous to trying to get a speeding ticket revoked because the police officer had a headlight out when he pulled you over, even if you acknowledge driving 20 MPH over the speed limit.
Hi Schmedlap,
I’ve just been reading through the actual judgement and, as a matter of law, you’re quite correct. The precedent appears to have been set earlier in Hulen v. State Board of Agriculture, 98-B-2170, (D. Colo. 2001), at least as far as universities in Colorado are concerned and before that in Gressley v. Deutsch, 890 F.Supp. 1474, 1480 (D.Wyo. 1994).
There is, however, a problem. The analog by which they are granted quasi-immunity is that their internal systems operate in a manner analogous to a judicial proceeding. The “proceeding” that led to Churchill’s termination, however, is not analogous to a judicial proceeding, at least in my understanding of US proceedings, since the President of the University over-road the findings / recommendations of the committee. This was not, apparently, the case in Hulen where it was over-rulled by the provost and appealed to the president and board of governors.
If we switch the analogy back into the judicial process, the Churchill case would be analogous to an appellate court judge deciding that s/he didn’t like a particular decision and over-ruling it without an appeal being launched by the defendant or prosecution. The key, to my mind, lies in the Gressley decision where it was determined that
I believe that, in the Churchill case, provisions a) and c) were not met. In the first case, from the evidence available to me (and I could be wrong on this , while their functions may have been similar, they were not analogous. Second, the regulatory framework in this case did not provide sufficient safeguards since, as a finding of fact, he had only committed possible infractions as shown in the original committee decision. NB: part of the “safeguards” includes a common law assumption that matters of “standard practice” within a community shall form the basis for judgement. I would be fascinated to see the academic work of the officials involved going through the same scrutiny as they put Churchill’s work through!
Let me return to Hulen and Gressley for a minute, since they form the basis for the decision in the Churchill case – at least in applying it in universities. Both cases involved the transfer of a professor from one department to another. Churchill, OTOH, was being terminated “for cause”. Now, I’ll admit that I don’t know US employment law as well as Canadian employment law, but it strikes me that this establishes a very serious breach of both law and principle. In effect, it now argues that “cause” may be defined on a whim by an administrator who enjoys immunity from the consequences of that decision and even when that cause is shown, in court, to include fabrications and malicious intent on the part of the administrator(s) involved, there is no recourse.
This is Rule of Law? Rather, it strikes me that this is the legalization of Administrative Whim as law. The priniciple of judicial immunity was established in this manner (according to Naves, p.9):
He then goes on to show how this has been extended, but the extension must, IMO, be limited to matters directly relating to the specific analog, to whit, the pre-existing legal standards. Churchill, remember, was fired “for cause” which, according to the UC regulations is
In this case, to my mind at least, the jury acted in an appellate manner by deciding that the administrators erred as a matter of fact in their finding that Churchill engaged in “conduct which falls below minimum standards of professional integrity”. This is, to my mind at least, the crux of the matter. This decision was over-ruled by the judge by extending quasi-immunity to administrators even after it had been proven to the satisfaction of the jury that they had not met their burden of proof.
So, we have a failed administrative process that was clearly driven by a political agenda. We have the application of “standards” that are clearly prejudicial and not commonly applied (these used to be called Jim Crow laws, but at least those were laws!). Finally, we have a judge overturning a jury finding of fact verdict in a manner that now establishes as a matter of common law that administrators may arbitrarily apply any standards they wish in order to terminate a person and, most importantly, that there is no legal recourse against this arbitrary action.
*******
As you might imagine, this bugs me, hence the rant
.
BTW, yes, it does appear that Churchill committed a few minor infractions over his 20+ year career. They are, IMO, more analogous to driving at the speed limit +/- 1 MPH. The “plagiarism” charge came about from his having worked with someone else on a paper and not having his name on that paper, and then quoting it. To my mind, that is pretty problematic since most of us will engage in editorial work on our friends and colleagues papers as a matter of professional courtesy.
I’ll still call it a “precedent setting case” solely because, in my mind and I’m open to correction on this, I see it as extending administrative privilege by allowing for individually tailored “standards” to be applied in the establishment of “cause” for terminations.
I thought you folks fought a revolution to escape from the principle of Administrative Whim as Law?
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Marc, you’re misinformed re Churchill’s infractions. He plagiarized two entire articles. His excuse is that someone else mistakenly gave him credit for the purloined works. Repeatedly. You may or may not buy his defense, but the alleged offense is significantly more serious than you acknowledge. There are also the issues of Churchill’s fabrication and falsification. I shudder when scholars say that such infractions are “minor”. What does that say about the reliability of your own work?
Tom,
I will admit to getting most of my news about the trial from Max’s posts, but he is usually quite accurate (even if we disagree on a lot of things). Here is the post about the supposed infractions – http://openanthropology.wordpress.com/2009/03/21/news-from-days-9-10-of-ward-churchills-lawsuit-against-the-university-of-colorado/
Do you have a particular source for the plagiarism and “fabrication and falsification” that goes beyond what was reported?
Tom,
Just out of interest, have you lodged a plagiarism complaint against Professor McIntosh yet? I’m wondering since according to this document (http://www.wardchurchill.net/files/research_mIsconduct_complaint_against_mcintosh_and_invest_cmte_for_plagiarism.pdf) it certainly appears that you have a case.
You should really read the SCRM report:
http://www.colorado.edu/news/reports/churchill/churchillreport051606.html
If you need more, see my two articles in Plagiary.
The notion that the IC report plagiarized me is absurd, and is typical of the tu quoque arguments repeatedly deployed by Churchill’s defenders. I submitted my work as a complainant, and the committee was bound by CU policy to keep complainants anonymous. In other words, Marjie was forbidden from citing me. She did her own research anyway, partially in my footsteps, and came to the same conclusions that I did — as has everyone else who’s done the primary source research.
That’s right, Ward Churchill plagiarized himself, making use of his own words without proper self-attribution.
He really should be fired for such an egregious frontal assault…indeed, let’s join Thomas Brown (and the others who have made a personal career of destroying Churchill’s) by screeching “RAPE!” at the top of our lungs at the unruly, ill mannered little Indian.
“…the committee was bound by CU policy to keep complainants anonymous.”
Ah, the anonymous accuser.
How intriguing, and . . ., Stalinesque.
It does make one wonder, doesn’t it? I had thought that, in the US, there was a legal right to face one’s accusers… Under the 6th Amendendment if I’m not mistaken…
It is the 6th, specifically the Confrontation Clause. The accused has the right of cross-examination of the accuser.
I think the Confrontation Clause is also a deterrent to the admission of hearsay into the proceedings of a court.
In the SCRM’s “quasi-court” we see a most unusual chain of hearsay – that is, “Marje” tells the Committee that Prof. Brown told her that Prof. Cohen implied that Prof. Churchill plagiarized her work.
This bizarre chain of hearsay, rumor, and innuendo would never link up in an actual civil proceeding.
On another note, the Committee members were acting as “quasi-prosecutors” in the matter. Prof. Brown might want to contemplate the fate of an accuser who secretly conspires to prosecute a crime that wasn’t committed.
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