Urgent Letter to Friends and Colleagues of the "Defend Dissent and Critical Thinking in Academia" Network:
From: Matthew Abraham, Noam Chomsky, Richard Delgado, Richard Falk,
Irene Gendzier, Henry Giroux, Margaret LeCompte, Peter McLaren,
Mahmood Mamdani, Thomas F. Mayer, Michael Vocino, Immanuel Wallerstein
and Reggie Dylan, for the Defend Dissent and Critical Thinking in Academia Network
Court Vacates Jury's Verdict - Refuses to Reinstate Professor Churchill
On July 7th, Denver Chief Judge Larry Naves vacated the jury verdict in April which had 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.
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, July 9, 2009
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 compensationŠ"
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.Š" 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." [jonathanturley.org, July 8
It is clear that Judge Naves has disregarded both the facts and the law in his determination to reach a politically motivated result. It's not surprising to learn 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 continue to work with Ward Churchill and Natsu Saito 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.
Thomas F. Mayer
Reggie Dylan, for the Defend Dissent and Critical Thinking in Academia Network