Over the past week, David Kopel at Volokh and Stone Mountain have had an interesting debate on whether a legal justification exists for dismissing Ward Churchill. In this morning’s Rocky Mountain News, two Denver attorneys, Dan Caplis and Craig Silverman, who co-host a left-right radio talk show, published the most tightly reasoned case I’ve seen for firing Churchill.

Caplis and Silverman, who have gone through a good number of Churchill’s remarks, have concluded:

Churchill has made things up to put himself in a position to incite and actively advocate violence against the U.S. and its citizens.

Churchill stands credibly accused of ethnic fraud, grade retribution, falsification of the nature of his military service, academic fraud, plagiarism, selling other artists' creations as his own and falsely accusing Denver Post columnist Diane Carman of inventing incendiary quotations.

All this provides ample justification for termination pursuant to accusations of incompetence and lack of integrity. But it is Churchill's instructions on violence that demand immediate suspension followed by termination. Due process must be provided, but unless this accused can somehow suppress his own statements, he should ultimately lose his job.

The newly discovered quotes uncovered by Caplis and Silverman include Churchill asking in 2003, “Why, by the way, did it take Arabs to do what people here should have done a long time ago?”; his contending that terrorists “must” deliver the United States a"dose of medicine" through a chemical, biological, or nuclear strike; his asserting, in reference to the illegal “colonization” of the United States,"Killing the colonizer is a figurative proposition, it is a literal proposition, but either way, and by all available means, the proposition has to be fulfilled”; and finally, when asked by a white man in a Q+A session in Seattle during 2003 about how to most effectively carry out a terrorist attack against the nation’s financial centers, his responding,"You carry the weapon. That's how they don't see it coming. You're the one. They talk about 'color blind or blind to your color.' You said it yourself. You don't send the Black Liberation Army into Wall Street to conduct an action. You don't send the American Indian Movement into downtown Seattle to conduct an action. Who do you send? You! With your beard shaved, your hair cut close and wearing a banker's suit."

“The ongoing employment of Churchill,” the attorneys conclude, “is a catastrophe for CU,” since, while “some issues are a matter of left vs. right,” the “Churchill controversy is a matter of right vs. wrong.”

I continue to believe that dismissing Churchill would do more harm than good (assigning him to teach classes is another matter), and feel that the CU administration should use the affair to investigate the university’s personnel policies to determine exactly what criteria the relevant faculty committees have been using. Along these lines, Colorado chancellor Betsy Hoffman probably sealed her fate with awkward public comments Thursday (I bet she wishes she had waited until the Caplis/Silverman article came out) comparing Churchill’s critics to McCarthyites, remarks that have the state’s GOP legislative leadership demanding her dismissal and which the Rocky Mountain News strongly and properly censured in an editorial today.

The most troubling aspect of the Churchill case—and the related (and far more serious) MEALAC crisis at Columbia—involves the response of the faculty on campus. This Monday, 199 professors at Colorado signed a public statement denouncing the inquiry into Churchill’s conduct, suggesting, in effect, that because figures from outside the university have condemned Churchill, the university itself has no right to even inquire into serious allegations of academic fraud and (if the Caplis/Silverman story is correct) possible legal liability to CU for inciting violence. At Columbia, by my count, only three professors on the entire arts and sciences faculty have publicly condemned the conduct of the MEALAC professors, creating the (hopefully false) impression that personnel bias and in-class intimidation are standard fare at Morningside Heights.

The faculties of Columbia and Colorado have justified their positions by citing academic freedom. Yet the doctrine arose, as Scott Jaschik’s recent piece in Inside Higher Ed reminded us, in a period when professors were regularly fired for their political views—but also in which professors were expected not to bring their political views into the classroom. (The 1915 AAUP statement on academic freedom and the since-repudiated University of California academic freedom policy, drafted in the 1930s, were explicit on this point.) Therefore, it was correctly reasoned, professors shouldn’t be fired for saying controversial things in public (even if their remarks were intellectually dubious), because these comments had nothing to do with their academic qualifications or how they taught their classes.

Of course, the line between political and classroom speech was never as clearcut as the California or AAUP resolutions implied. But the defenders of Churchill and MEALAC have argued that there should be no line—that political speech is perfectly appropriate in the classroom, if this is how a professor wants to teach his or her class. I don’t agree with that proposition, and I think that many in the academy don’t agree with it. But, having taken this approach, there seems to me a tension between arguing that professors are free to bring their political views into the classroom and contending that academic freedom protects a professor’s out-of-class utterances on the grounds that a fundamental distinction exists between such remarks and what the professor does in the classroom.

Perhaps the positions of the Colorado faculty who have condemned the inquiry into Churchill and the Columbia faculty who have defended MEALAC would be more defensible if they attempted to resolve this tension.

Van L. Hayhow - 3/7/2005

Guess not.

Chris Levesque - 3/7/2005

The local NBC affiliate is reporting that Betty Hoffman has given the Board of Regents her resignation.

It's about time. Between her ineffective leadership during the football sex assault scandal, and the mess surrounding Ward Churchill, I'm surprised they didn't fire her.

Robert KC Johnson - 3/6/2005

Very interesting. Perhaps Brodhead, like the presidents of Brown and Columbia (and Summers, before his de facto censure), can be counted as among those interested in charting a new course for the academy.

Jeff Vanke - 3/6/2005

A litte more than one hundred years ago, a Duke history professor by the name of John Bassett published some remarks against the new Jim Crow consensus in the South. (It was actually still Trinity College, but already under the Duke family's patronage and moved to Durham.)

The Raleigh paper called for his dismissal. The Duke trustees gave it some serious thought. A very large, perhaps overwhelming, block of Duke faculty threatened, not a strike, but mass resignations if Bassett were dismissed. The trustees kept him on. Locally, this is celebrated as a landmark case in tenure protection.

In an otherwise unrelated coda, I'll make an observation about new Duke President Richard Brodhead and the PSM conference last fall. When one student editorialist made particularly inflammatory anti-Israel remarks, Brodhead immediately condemned their substance in the student newspaper. (He also sent alumni a four-page letter in advance of the conference, with no surprises there.) Months into his tenure, then, he has shown much more willingness to protect free speech while criticizing thoughts freely spoken, than did predecessor Nannerl Keohane when an unrepentant Weatherman-ish felon murderer was a guest speaker.

Robert KC Johnson - 3/6/2005

Fascinating. That the CU policy does, in fact, regulate against political discourse in the classroom suggests even more problems for Churchill. I'd also be curious to see if this policy has ever been enforced.

On the nature of whether the current inquiry is improper: I don't think he shouldn't be fired, but I'm on the fence on the question of the propriety of the inquiry. If troubling information comes into the university's hands, should the university be precluded from investigating it on the grounds that there is a vague post-tenure review process that occurs every five years?

Some of the allegations against Churchill (the misuse of sources, the apparent copyright infringement in his art) involve events that occurred more than five years ago, and it's clear that whatever type of post-tenure review that occurred didn't do a very good job.

In general, as is the case with Columbia and the MEALAC defenders, I'd feel a lot better about this case if the protesting professors demonstrated any inclination for policing themselves. Instead, the message that comes through is, "Trust us, and trust the procedures we have in place." But this is the same process that hired, promoted, and tenured a Ward Churchill, about whom, at this stage, nearly everyone can agree possessed dubious qualifications. Given that, a message of trusting the existing faculty procedures without any demonstration of how the procedures might have gone wrong in the past doesn't seem to me to suffice.

Fred Vincy - 3/6/2005

Just to be clear, the CU policy on academic freedom (which I link to in my post that you link to) does regulate political discourse in the classroom. Basically, the professor should not introduce controversial matters that are unrelated to the subject of the class and, even when they do introduce controversial subjects, should be respectful of opinions of others. That strikes me as about right, but it is not quite the same as keeping politics out of the classroom entirely.

The second clarification is that my position, and I think that of the 199 CU profs., is that _this investigation_ is inappropriate on academic freedom grounds, not that Churchill is immune from sanction pursuant to the proper procedures.

Jonathan Rees - 3/6/2005

Actually Ralph, I like KC's argument here, but my fear is that people will use him as cover for much less thoughtful positions. I didn't intend my last comment to be any different than you teasing him about Horowitz.

JR

Robert KC Johnson - 3/6/2005

Jonathan's point is taken--although on the Churchill issue, I'd say that neither position has a monopoly of all their advocates being on the side of the angels.

This is one reason, I should reiterate, why I so strongly oppose allowing professors to bring political speech into the classroom and call it protected by academic freedom. Once that's done, it's hard to resist the calls of political partisans who don't like the kind of political speech that's being employed.

Robert KC Johnson - 3/6/2005

Perhaps so. But the comment in the Seattle Q+A (which was on tape) is an astonishing comment--a college professor giving someone (admittedly pretty stupid) advice on how to get away with a terrorist attack on Wall Street. I'm not saying I favor Churchill's dismissal: I don't. But if I were working in Colorado's general counsel's office, I'd have to look long and hard at the legal liability question.

Ralph E. Luker - 3/6/2005

Jonathan, Your last point is, I think, a part of the human condition. I have no regrets about having been a part of the civil rights movement. I had then and have now some real questions about some of the people with whom I was allied in it. Nonetheless, I don't think that it is appropriate to use guilt-by-association arguments to dismiss a person's position. In fact, you're doing something like what Tim is criticizing KC for on another thread here.

Jonathan Rees - 3/6/2005

That's a good question and I can't answer it, but check this out:

http://www.collegegop.org/PressReleases/index.cfm/ID/27.htm

Once again K.C., you explain your position with thought and subtlety, but I'd really worry about some of the other people on your side.

JR

Ralph E. Luker - 3/6/2005

Is the Smith Act still on the books?

Jonathan Rees - 3/6/2005

It just seems that our society doesn't have much faith in itself if we are really afraid that someone like Ward Churchill is going to lead the next American Revolution. I think there's a big difference between giving a speech that is INTERPRETED as a call for violence and actually planning it.

JR

Robert KC Johnson - 3/6/2005

I think the Smith Act was unconstitutional and a terrible law. Even though I don't support Churchill's dismissal, I don't think this situation is comparable, for two reasons: (1) Churchill has a host of other, non-ideological, allegations against him (fraud, copyright violation, grade retaliation); (2) I agree with the lawyers that the 2003 speech exposed the university to potential legal liability on grounds of inciting violence. Let's say the person to whom he gave advice on how to commit an effective terrorist act against Wall Street actually had done so: a case could be made that the university was legally liable.

Robert KC Johnson - 3/6/2005

I changed the post title at the last minute to reflect the latest news--her statement defending Churhcill's comments and the GOP calls for her dismissal. But yes, I plead guilty to poor title choice!

Ralph E. Luker - 3/6/2005

KC, Isn't your post mis-titled? Although you say CU Chancellor in hot water, the post is about Churchill, not the CU Chancellor. It seems to me that she's managed to negotiate some extremely difficult matters so far with considerable skill. The problems are problems that she inherited -- not ones of her own making. She may be in hot water, but I'm not convinced of that from anything in your post.

Jonathan Rees - 3/6/2005

What do you think of the Smith Act? Do you think this situation is comparable?

JR