Jury Rules Ward Churchill Wrongfully Fired

by Kevin Jon Heller

It’s not exactly international law, but he was my professor at CU — one of the very best I ever had — and, in order to rule in his favor, the jury had to find that a majority of the Regents used his infamous 9/11 essay as a “substantial or motivating factor” in the decision to fire him.  So I think there’s a nexus.

I’m delighted at the outcome, although the jury’s award of $1.00 in damages is puzzling.  The real issue is whether Churchill will be reinstated at CU, which is up to the judge, not the jury.

Whatever one thinks of Churchill, his victory is very good news for academic freedom.  You can read about the trial in remarkable detail at Race to the Bottom.  I followed the trial closely, and am more than a little biased, but the vast majority of the research-misconduct allegations against Churchill seemed amazingly petty: the kind of “mistakes” — most were simply differences of scholarly opinion — that I imagine a disciplinary committee bent on firing someone could find in the work of anyone who had been a prolific scholar for nearly 30 years.  (The only genuinely disturbing plagiarism allegation, for which he had a decent explanation, took place before Churchill was at CU and could not be used as a reason for his dismissal.)

All in all, an excellent result.  Fingers crossed that the judge reinstates him.

UPDATE: A minor note.  The New York Times article says that “[a] reinstatement would likely draw a sharply negative reaction among many on the faculty, since a faculty committee was instrumental in his firing.”  That is a somewhat misleading statement.  Three CU committees reviewed the allegations against Churchill, and although all of them concluded that he had engaged in misconduct, only one — the Standing Committee on Research Misconduct — recommended that he be fired.  Indeed, the final committee, Privilege & Tenure, voted 4-1 against firing him.

http://opiniojuris.org/2009/04/02/jury-rules-ward-churchill-wrongfully-fired/

15 Responses

  1. Sounds pretty damning: Three of the authors that Churchill cites in support of his smallpox thesis, Evan Connell, RG Robertson and Russell Thornton, have rejected Churchill’s interpretation of their work. Thornton characterized Churchill’s smallpox thesis as “fabrication.”

  2. I’m with John Tan on this one, if Ward Churchill isn’t guilty of fabricating results, it’s hard to see who could be.

    He basically invented a genocide, as it were.  To describe this as “…simply differences of scholarly opinion” risks unhinging my jaw.

  3. Good thing the jury disagreed.  Here is Race to the Bottom’s summary:

    With respect to the allegations of misconduct, they were effectively challenged.  Considerable testimony came out a trial indicating that he may have been sloppy in his footnote practices (the Smallpox Epidemic, John Smith) but the evidence of fabrication was substantially weaker than what seemed the case at the beginning of the trial (in fairness the committee only found fabrication for certain specific facts in the Smallpox description).  There were some facts unaccounted for in the smallpox matter but there were at least possible explanations.

  4. Just skimmed the committee report on research misconduct. You really ought not to be minimizing Churchill’s intellectual crimes in so cavalier a manner. According to the report:

    1. Churchill “total[ly] fabricat[ed] . . . data to support his hypothesis (i.e., the ghostwriting and self-citation of the Robbins and Jaimes essays).” In other words, he made up shit in someone else’s name and then cited it — in essence citing himself (pretending to be someone else) for the proposition he was advancing.

    2. Churchill repeatedly cites “sources [that] in fact contradict his claims . . . a form of falsification of evidence.”

    3. Churchill’s inferences fail even cursory rational basis scrutiny, as it were. “Professor Churchill misrepresented his sources in two essays when describing Captain John Smith and smallpox, a form of falsification.  We conclude also that he fabricated his account, because no evidence — not even circumstantial evidence — supports his claim.”

    4.   Churchill misrepresents his sources, and worse,  his sources repudiate his fabrications. “In his earlier essays, Professor Churchill cites Thornton’s work in what is at least a misleading manner.  In ‘An American Holocaust?,’ he actively misrepresents Thornton, a form of falsification.”

    5. Churchill is guilty of fraudulent embellishment that goes to the crux of his thesis. “[O]ne must reluctantly conclude that Churchill fabricated the most crucial details of his genocide story.  Churchill radically misrepresented the sources he cites in support of his genocide charges, sources which say essentially the opposite of what Churchill attributes to them.” Shocking!

    6. Churchill admits as much. “Our investigation, including Professor Churchill’s own submissions and interviews, did not find any sources that refer to blankets from a military infirmary in St. Louis. . . . We therefore conclude that Professor Churchill fabricated this aspect of his account.”

    7. In sum, “the Committee has found repeated instances of his practice of fabricating details or ostensible written evidence to buttress his broader ideological arguments.” In other words, it’s a recurring pattern of scholarly malpractice and not just a few isolated instances of what you euphemistically call ‘scholarly disagreement.’

    No, this isn’t an “excellent result.” Yes, you certainly are biased. And no, academic freedom isn’t at all well served when it is used as pretextual cover for an intellectual fraud.

  5. Well, I guess I have to retract everything I said.  I certainly trust your judgment and the judgment of Marianne Wesson — the chair of the committee, who compared Churchill to OJ Simpson in an email that the committee hid from the defense and who made Churchill submit questions for the committee’s witnesses in writing and then rewrote them before asking them — more than the judgment of the jurors who sat in the courtroom every day.

    “Intellectual crimes” — nice hyperbole!

  6. KJH stated, “I certainly trust your judgment and the judgment of Marianne Wesson . . . more than the judgment of the jurors who sat in the courtroom every day.”

    That’s pretty rich.  No wonder KJH likes W. Churchill, it must be the mutual fondness for mischaracterizations and specious reasoning.

    Kevin, assuming your explanation of this ruling is at all accurate, the jury merely had to find that the 9-11 essay was a “substantial or motivating factor” in the decision to fire him.

    John Tan is not arguing that politics didn’t play a role.  JT is criticizing Ward’s research misconduct. 

    The jury’s finding hardly means that W. Churchill didn’t engage in (significant) research misconduct.   In other words, “substantial” or “motivating” hardly means the “primary” reason, let alone the only reason. 

    In addition, it explains the $1 damages.  The jury found, like any sane person would, that the politics played a role.  In fact, that he caused a political firestorm is the only thing saving him for a very much deserved firing for research misconduct.   But, as likely the jury concluded, W. Churchill is hardly a saint.  Hence, the finding that politics played a role, but $1 in damages.

    The morale to the story is when engaging in research fraud make sure to become politically controversial.  Because then, it will almost always be improper to fire you under the legal standard in this case.

  7. HLS,

    For you to accuse anyone of mischaracterization and specious reasoning is truly rich.

  8. Quite funny. Try adding an argument to your ad hominem.  It does wonders.

  9. Mr Heller, this judgement doesn’t seem to be exculpatory for Churchill, it would only indicate that the University acted improperly and breached its contract with him. I realize Churchill isn’t the one on trial in this case, but the point being made seems to be more that the University would not have been motivated to investigate in the first place if not for the content of Churchill’s speech….not that the investigation was inaccurate. To the layperson (that’s me) that’s a bit like saying “so what if I committed the crime, you wouldn’t have caught me if I hadn’t drawn attention to myself!” Seems kind of weak. 
     

  10. Professor Heller,

    Can you maybe walk me through how an individual who shares your political beliefs is ever personally responsible for their actions in your universe.  Lynne Stewart admits that she, and I am quoting from her own words, “knowingly violated prison rules and was careless, overemotional and politically naïve in her representation of a terrorist client.”  But, to you, she is the victim of a right-wing conspiracy.  Ward Churchill fabricated sources and again, in your own words, committed “dsitrubing” acts of plagirism, but he is a victim of the same right wing paranoia. 

    I believe in socialized medicine …. so I quess that parking ticket I just got was “the man” trying to get me back!!!!!

  11. The jury found that a majority of CU’s Regents used the 9/11 essay as a “substantial or motivating factor” in their decision to fire him.  So it’s difficult to take your question seriously — no matter what Churchill might have done wrong in terms of his scholarship, his firing obviously did reflect “right wing paranoia,” as you so aptly put it.

    And not that you care about little things like accuracy, but I said that Churchill engaged in one disturbing act of plagiarism, not “acts” — and clearly pointed out that the one act took place before he was at CU and thus could not be used as a reason to fire him.

  12. Let’s see if the judge reinstates him.  I’m thinking “probably not,” but perhaps the punishment fits the crime, for the University, at least.

  13. MG,

    I’m not sure how the judge could avoid reinstating him, given that the jury found that he was wrongfully terminated and that the final committee who reviewed his conduct, the Privilege & Tenure Committee, voted against firing him 4-1.  But for the Regents’ decision, which the jury concluded was improperly motivated, he would not have been fired.  So isn’t reinstatement the appropriate remedy?

  14. Were the juries award of damages anything other than $1.00, I’d agree, yes, the judge will certainly reinstate him.  However, given the ambiguity of the result, he may interpret it as a endorsement for using his personal judgment.

    To quote the NYTimes:

    First, they asked whether it was possible to award no damages. A few minutes later, they asked whether, if all but one jury member could agree on a dollar amount, that person could be replaced by another juror. (The answer was no.)

    I think you could reasonably read that outcome as the jury saying he was terminated for illegitimate reasons, but still deserved to be terminated.

  15. Or you could read it as giving Churchill what he wanted: recognition that he was improperly terminated, so that he could get his job back.  He explicitly told the jury that he was not looking for monetary damages.

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