NAISA has posted a link to the Ellen Schrecker article on Ward Churchill published in the AAUP online Journal of Academic Freedom. Schrecker was never a part of the case

and is not an expert in Native studies. She cites me briefly in her article as " a Cornell specialist in American Indian literature," which I am but also, crucially in terms of the case, a specialist in federal Indian law. In 2008-09, the journal Works and Days published a special issue Academic Freedom and Intellectual Activisim in the Post-9/11 University in which both Churchill and I have long essays on the case. Mine is titled "Framing Ward Churchill: The Political Construction of Research Misconduct." South Atlantic Quarterly just published a special issue on Academic Freedom in which I also have an essay, which deals with Churchill and other cases: "The Corporate University, Academic Freedom, and American Exceptionalism." I was an expert witness on Churchill's behalf both in his hearing before the Privilege and Tenure Committee at CU and at his trial in Denver. It's worth noting that the national AAUP is a little late in publishing anything on the trial and never stepped up when the case was in progress. In April of 2007, the Colorado AAUP, citing my research on the case, wrote a letter to Hank Brown, then president of CU, asking him either to have the case looked at by an independent outside body or to drop the charges altogether. That letter is published in my Works and Days essay. In addition I sent two op-ed pieces to Academe, journal of the AAUP, one on the Privilege and Tenure hearings and one on the outcome of the Denver trial, both of which they declined to publish. The two op-ed pieces are part of this blog.

The Ward Churchill Case: The Other Side of the Story

On July 24, 2007, with only one dissenter, the University of Colorado Regents voted to uphold the decision of University president Hank Brown and fire Ward Churchill, a tenured full-professor of Ethnic and American Indian Studies at the university’s Boulder campus. The dismissal alleged “research misconduct,” including “falsification” and “fabrication” of scholarly evidence and “plagiarism.”

As an expert in both American Indian studies and federal Indian law, the subjects covered by the research misconduct charges, I testified on behalf of Professor Churchill before the University of Colorado Privilege and Tenure Committee, the faculty body of final appeal, on January 12, 2007. Before that moment, I had never met Churchill. But as a professional in his field, as well as someone concerned about issues of tenure and academic freedom, which were on trial, I was necessarily interested in the case; and so when it was released in May of 2006, I read the Report of the Investigative Committee of the Standing Committee on Research Misconduct at the University of Colorado at Boulder concerning Allegations of Academic Misconduct against Professor Ward Churchill.

As stated in the title of its Report, the Investigative Committee was appointed by the Standing Committee on Research Misconduct. The university “rule” governing such an appointment is that the Investigative Committee should be composed of individuals “who have expertise relevant to the allegations being investigated.” Nevertheless, of the five members of the Investigative Committee, only one had any expertise in Churchill’s field, American Indian studies, and that was Robert Clinton, a professor of federal Indian law at Arizona State University. But the presence on the Investigative Committee of only one person who could claim any expertise in Churchill’s field certainly precluded informed debate about the merits of Churchill’s scholarship.

The Report itself expressed misgivings about the context in which it was generated, noting that the research misconduct “charges were commenced only after Professor Churchill had published some highly controversial essays dealing with, among other things, the 9/11 tragedy…. Thus, the Committee [was] troubled by the origins of, and skeptical concerning the motives for, the current investigation.”

Based on a thorough analysis of the Report, including the work of Professor Churchill’s under scrutiny (in point of fact a very tiny percentage of his enormous output), my testimony before the Privilege and Tenure Committee found the Report to contain substantial errors, which, in my estimation, invalidated it. Further, I found Churchill’s scholarship to be fundamentally sound and to constitute a part of an important debate within the field concerning issues of identity, sovereignty, and genocide. I also found the charges of plagiarism to be frivolous. As I told the Privilege and Tenure Committee, I found that the Report itself violated basic scholarly protocols by turning a debate within the field of American Indian studies into an indictment of one side of that debate.

In April of 2007, the Executive Committee of the American Association of University Professors’ Colorado Conference wrote a letter to Presdient Brown, stating that it found my evidence of serious errors in the Report “compelling” and noting that “the flaws in the Report are so serious that no legitimate action can be taken on the basis of the information contained therein.” Further the AAUP letter noted: “If the Report is not rescinded, [it] is incumbent upon the University of Colorado to ensure the Cheyfitz evidence is thoroughly examined for its validity and its impact on the original Report.” As the record shows, no action was taken by the University to answer these substantial charges before it fired Ward Churchill based on the conclusions of the Report.

It is important to note that the Privilege and Tenure Committee dismissed the bulk of the fabrication and falsification charges against Professor Churchill, while holding onto two plagiarism charges and two charges that Churchill had cited sources that he had ghostwritten, though the University has no regulations against the latter. In light of its investigation, the Committee voted 3-2 not to fire but to sanction Churchill with a one-year suspension without pay and demotion to the rank of associate professor. President Brown and the Regents clearly ignored this recommendation, thereby undermining faculty governance.

As of the moment, Churchill’s side has filed the case in state court in Colorado.

Eric Cheyfitz
Ernest I. White Professor of American Studies and Humane Letters
Cornell University

Churchill v. The University of Colorado Becomes Naves v. Churchill.

On July 7, 2009, Judge Larry Naves of the district court of the state of Colorado, denied the reinstatement motion of Ward Churchill, former professor of American Indian Studies at the University of Colorado at Boulder. In doing this, Judge Naves vacated the verdict of the jury in the Churchill suit against the University and in effect retried the case. The jury had found that Churchill was fired for speech protected under the First Amendment of the U.S. Constitution: an internet essay he had written following the 9/11 attack by Arab militants on the World Trade Center and the Pentagon in which he argued that given the violence of U.S. foreign policy in the Middle East, particularly the ten-year embargo of critical medical and food supplies to Iraq, resulting in the deaths of an estimated 500,000 children, the U.S. should not be surprised at the attack, or “counter-attack” as Churchill put it.

Ostensibly, the University had fired Churchill in the summer of 2007 for what it termed “research misconduct,” a list of seven charges entailing falsification and fabrication of historical material and sources as well as plagiarism. But after I and other expert witnesses in the field of Native American studies and federal Indian law testified on his behalf, the Privilege and Tenure Committee of the University, the final faculty body to hear the case, substantially dropped four of the charges and voted 3-2 not to fire Churchill but to sanction him with a year’s suspension without pay and reduction in rank from full to associate professor. Nevertheless, the then-president of CU Hank Brown overrode the faculty decision and fired Churchill. Subsequently, Brown was upheld by the CU Regents with only one dissenting vote.

In the trial that ensued in 2009, in which, as I had done before the Privilege and Tenure Committee, I testified point by point to the fundamental groundlessness of the research misconduct charges, the jury, based on the judge’s instructions, found that “a majority of the Board of Regents of the University of Colorado [did] use Plaintiff’s protected speech activity as a substantial or motivating factor in the decision to discharge the Plaintiff from employment” and that “the Defendants [have not] 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.” In other words, it seems fair to infer that the jury found the research misconduct charges insubstantial. It is important to note that the University did not present any witnesses at the trial in the field of Native American studies to support its charges, save for Robert Clinton, an expert in federal Indian law though not in Native studies more generally, who was one of the authors of the University investigative report charging Churchill with research misconduct in the first place.

Commenting on Naves’ decision to cancel the jury verdict, Kevin O’Brien, a lawyer and associate professor at the University of Denver’s Daniels College of Business, who blogged during the trial, noted: “What is remarkable about the judge’s decision is that it adopted almost every argument proffered by CU’s legal briefs. Reading today’s trial decision felt like I was re-reading the CU briefs.”

At the conclusion of the trial, based on the jury’s verdict and the case law of Squires v. Middle Smithfield Township (1994), which mandates reinstatement as the preferred remedy in cases of this kind, O’Brien had predicted that “Churchill will likely be reinstated at CU.” But in his decision Naves never mentioned the Squires decision. Instead, he faithfully followed the University’s argument based in a very partial reading of Butz v. Economou (1978) and its progeny that CU was entitled to “quasi-judicial immunity” because the Regents in firing Churchill functioned not as an executive but as a judicial body. From this partial perspective, Naves negated the jury’s verdict and implicitly the plain language in Squires, cited by O’Brien in his blog, which states that “Once the jury has found in favor of plaintiff on liability, the existence of a constitutional deprivation is an established fact which may not be re-examined in … subsequent determinations -- including determinations of appropriate equitable remedies.”

In support of his radical reversal of the jury, Naves’ opinion claims that the jury’s awarding of only nominal monetary damages to Churchill intended that he not receive any form of compensation, including reinstatement. But this claim is refuted both by the context of the trial, where Churchill emphasized his desire not for monetary damages but for the restoration of his teaching job, and by the comments of individual jurors after the trial. Finally, in support of his decision, Naves, following the University’s argument to the letter, claimed that reinstating Churchill would prove too disruptive to the business of the University, even though the Department of Ethnic Studies, where Churchill was located, appeared in court in the person of its chair, Emma Perez, to say it would welcome Churchill back, both as an important scholar and a popular teacher.

While the University has claimed all along that its decision to fire Churchill is an affirmation of faculty governance and academic freedom, the decision to fire overrode the faculty vote for a limited sanction; and to the extent that academic freedom, though not identical with, is linked to freedom of speech, the overriding of the six-member jury by Naves in complete support of the University’s position casts one vote in favor of, as opposed to six against, silencing these two freedoms.

Eric Cheyfitz
Ernest I. White Professor of American Studies and Humane Letters
Cornell University