Peter N. Kirstein

Here is an update letter from Margo: Received via e-mail February 4, 2010

Dear Supporters and Friends,

I am writing to update you on my Ithaca College tenure case.

For the first time in 11 years, I did not start the Fall semester as a professor in the Sociology Department at Ithaca College. I am deeply saddened by this and I have truly missed the campus and my opportunity to engage students and interact with my peers.

http: //www.nyu.edu/library/bobst/research/tam/

ewen/images/fellowship_image.jpg

Despite this dramatic absence in my life, I have been busy telling my story, interacting with cherished supporters and collaborating with other professors in similar situations. I am also very happy to announce that I have just accepted a position to teach in the Sociology Department at Hunter College in New York City.

Below, I would like to highlight some of the truly inspirational interactions I have had over the past few months:

*After speaking on the “Defending Academic Freedom Today“ panel at the summer Socialism ’09 Conference in Chicago, a group of concerned faculty, students and citizens formed a group called Free the Academy. This group is working on organizing material for my case. The hope is to create a presence in academia that addresses academic freedom of progressive and left leaning faculty who are under attack. I invite you to join and contribute your ideas and abilities. http://freetheacademy.wordpress.com/

*This past fall I was invited to speak on a panel called “Israel and US Academic Censorship,” at the Peace and Justice Studies Association Conference “Exploring the Power of Nonviolence,” at Marquette University. Other panelists included Professor Joel Kovel, who as many of you know, was fired from his position at Bard College last year for his critical scholarly work on Zionism. Professor Chris Toffolo was a respondent on this panel. Chris was removed from her position as director of the Justice and Peace Studies Program at St. Thomas University in Minnesota after she protested the administration’s banning of Bishop Tutu from speaking at St. Thomas in 2007. Tutu was labeled anti-semitic for his criticism of Israeli politics in Palestine. As vice-president of academic affairs at St. Thomas in 2007, the current president of Ithaca College, Thomas Rochon was responsible for removing Chris Toffolo from her position.

*I have received endorsements from well-established advocacy groups including Academics for Justice and California Scholars for Academic Freedom.

*I have also started working with the American Association of University Women (AAUW) and hope to find other groups that will look closely at the sexual harassment elements in my case. Please share any contacts you may have with academic women’s groups, feminist organizations or employment law groups specializing in job discrimination.

*Also, look for online articles about my case in two recent publications:

- My story was recently published in the newsletter of ‘We Advocate Gender Equality’ (WAGE) and should be posted on their online site soon at http://wage.org/

- I was recently interviewed by Nora Barrows-Friedman for Electronic Intifada. Here is the article:

http://electronicintifada.net/v2/article10998.shtml

*I have been invited on two panels this summer:

The first will be on “Scholar Activism” at the US Social Forum in Detroit, and the second on “Academic Freedom” will be at the Labor Section of the annual American Sociological Association in Atlanta.

Here is the current status of my case. I am waiting for the results of the New York State Division of Human Rights and Equal Opportunity Employment Commission’s investigations of my discrimination charges against Ithaca College. My hope is that if found in violation, Ithaca College will prefer to settle my case outside of court. Otherwise, we will have to proceed to the next level, which is court.

I will continue my struggle against Ithaca College and I demand and ask my supporters to demand that:

1. Ithaca College grant me tenure and restore me rightfully back to my teaching position which I have held for 12 years.

2. Ithaca College take responsibility for all damages I suffered through my tenure ordeal which started in 2005 and has continued until today. These include, racist and sexist attacks, sexual harassment, academic freedom violations, jeopardizing my legal status in the US by denying my work visa while under contract, as a result, forcing me out of the country and preventing me to teach my final semester of classes.

On that note, I am looking for ways to help to defray my legal costs. If you know of any grants for legal funding for such cases, please send this information along. My email address is margo.nankoe@gmail.com

Thank you for all your support.

Warmly,

Margo Ramlal-Nankoe

Previous Post on Her Academic Freedom Case: http://english.sxu.edu/sites/kirstein/archives/2308

While authors are asked not to display journal articles for a year, I thought it appropriate to cite one page in which Dr Howard Zinn’s underutilized work, Postwar America: 1945-1971 is referenced. The book covers in surprising detail much of the machinations behind the decision to use atomic weaponry against a defeated and virtually defenceless adversary, Japan, that was nearing a decision to surrender. The citation is in footnote 16. Henry Stimson was secretary of war. Major General Leslie Groves was the director of the Manhattan Project and was obsessed with censorship and control of information related to this evil, monstrous project to develop weapons of mass destruction. The article is “Hiroshima and Spinning the Atom: America, Britain, and Canada Proclaim the Nuclear Age,  August 6, 1945,” The Historian, Winter, 2009:

809

…worried that scientists claiming proprietary rights of discovery might disseminate information that would eviscerate government efforts to monopolize all aspects of the nuclear enterprise. While Bush and Conant recommended that the Roose­velt administration disclose many details of the Manhattan Project, Groves was alarmed “that the president might decide that it was wise to release certain facts; the follow up stories and comments to such a release could well be ruinous.”¹³

Stimson established the Interim Committee on 4 May 1945 in order to “survey and make recommendations on postwar research, development and controls, as well as legislation necessary to effectuate them.”¹⁴ Besides Stimson, Bush, and Conant, the Interim Committee’s membership consisted of Secretary of State James F. Byrnes, Assistant Secretary of State William L. Clayton, former Undersecretary of the Navy Ralph Bard as of July 1945, Karl T. Compton of the Office of Scientific Research and Development (and president of the Massachusetts Institute of Tech­nology), and Stimson’s Special Assistant George L. Harrison (who was president of New York Life Insurance Company).¹⁵ The Interim Committee also provided recommendations on the use of the atomic bomb, suggesting options on how (rather than whether) the atomic bomb should be introduced into the Pacific.¹⁶

Groves recognized that the Interim Committee must approve any presidential or secretary of war statement but did not want it micromanaging subsequent publicity after the president’s planned broadcast. Groves told Harrison that the committee should not be “burdened with preparing or correcting” subsequent “publicity releases,” despite their importance to the nation and world.¹⁷ His real intent was maintaining as tight a loop as possible in the dissemination of the Manhattan Project information. While no evidence has surfaced that any Interim Committee member actually wrote an A-bomb draft announcement, Groves

13.  Leslie R. Groves to the Chief of Staff (George C. Marshall), 26 March 1945; Roll 1, File 5, Subfile 5b, Correspondence (^“Top Secret^”) of the Manhattan Engineer District, 1942–1946, Records of the Office of the Chief of Engineers, Record Group 77; National Archives—Great Lakes Region (hereafter referred to as ^“Top Secret Files^”).

14.  Bush–Conant File, 6.

15.  Correspondence (^“Top Secret^”) of the Manhattan Engineer District, 1942–1946, National Archives Microfilm Publications Pamphlet M1109 (Washington, DC: National Archives and Records Service, 1982), 3; Walter Millis, ed., The Forrestal Diaries (New York: Viking Press, 1951), 54, 560.

16.  Notes of the Interim Committee Meeting(s), 31 May 1945 and 1 June 1945, cited from Michael B. Stoff, Jonathan F. Fanton, and R. Hal Williams, eds., The Manhattan Project: A Documentary Introduction to the Atomic Age (New York: McGraw-Hill, Inc., 1991), 117, 127–28; Howard Zinn, Postwar America: 1945–1971 (Indianapolis, IN: Bobbs-Merrill, 1973), 9–10.

17.  Groves to George Harrison, 21 June 1945; Roll 6, File 75, H–B Files.

A Radical Treasure

This e-mail was from a student who graduated in 1988. She was one of my all time best students and sent me this. I removed explicit identifying materials. I have had several communication from students and other colleagues and am touched that Dr Zinn’s death triggered an association with him. It also attests to his significance in shaping the worldview of so many people.

From: @cinci.rr.com
Sent: Fri 1/29/2010 9:33 AM
To: Kirstein, Peter N.
Subject: Howard Zinn

Dr. Kirstein,

With all of the students you have taught over the years, I am sure that you couldn’t possibly remember me, however, how could I ever forget you. 

I am writing to you today to honor the life and work of Dr. Howard Zinn. I remember well the class you taught on American History using his book. It transformed the way I look at information and taught me skepticism of the status quo. When I read history, political science, or the national print media, my thoughts wander to the parts of the story that are not being told. Thank you for teaching me that.

I now work at Borders book store, everyone there knows I would rather be in the History section “working” than any other part of the store. Dr. Zinn’s book is there and whenever I recommend it or re-shelve it, I think of you.

I have recently discovered your blog and have been reading your postings. I enjoy your perspective and reading about your fight to keep freedom of speech in university classrooms.

I admire your commitment to pacifism.

I hope you are well.

Sincerely,

Linda

Graduated 1988

I attended Boston University and majored in Government as an undergraduate. Dr Howard Zinn was my advisor and professor in three courses. While he was a trained historian with a Ph.D. from Columbia University, his university appointment was actually in the Government Department prior to its being renamed the more common Department of Political Science. The New York Times, which had not prepared an obituary, was wrong as usual in identifying him as a member of the history department.

The courses I had with him were two in Political Theory and one on Civil Liberties and Civil Rights. He generally wore a green suit, blue button-down shirt and rep tie. He always called me “Mr Kirstein” and was quite receptive to student participation in class. One day he brought his iconic work on the Vietnam War, Vietnam: The Logic of Withdrawal and students began hawking the book to the class. I bought a copy. The book’s major moment is when he “wrote” for President Lyndon Baines Johnson, a speech announcing withdrawal and ending the American perpetrated genocide in Vietnam.

I was not a political activist or “radical” in college: that journey begins in graduate school and has not ended. Yet I know now it was his courses that began my intellectual journey from liberal to a more critical ideological perspective. From accepting mere evolution to a more transformational insistence on social change was impacted by his life and teaching. I have used for most of my career his books in my history and politial science courses.  Students who have taken me know Zinn. They have read his books and understood his revisionist approach on issues of war, race, class, and gender.

His People’s History of the United States that was subdivided into a twentieth-century version was a breakthrough work in that he revised the standard history text and emphasized the history of the underclass, downtrodden, the homeless, the immigrant, the woman, the African-American, the socialist and the labor union organizer. The book sold millions of copies and was even carried in such mainstream outlets as Borders and Barnes and Noble. It achieved middle-class respectability despite its progressive advocacy of social justice and the revision of the capitalist system.

Vignettes:

In 2006 I was giving a paper at the Historians Against the War conference at the University of Texas in Austin. Dr Zinn was the keynote speaker and there was a reception for him prior to his talk. I was able for about twenty minutes to talk to him fairly directly despite the presence of other participants. I told him how his courses changed my life. I told him about his many books that had graced my syllabus. He asked me what courses I teach and his smile expanded as I rattled them off: Vietnam and America, African-American History, Hiroshima and the Nuclear Age, Capitalism, Socialism and Social Justice, American Protest Music etc. His smile of approval meant: “Yes Peter, I understand who you are and what you are doing as a professor.”

At this time David Horowitz had just released his Professors: The 101 Most Dangerous Academics in America and I showed him my copy which included not only Dr Zinn but myself. He said, “Oh, you are in there? You too? One of my students also in that book!” Again he smiled appreciatively and I felt so very proud to be associated with him in this manner.

We also discussed my suspension for an emotional anti-war email, that was spaciously covered by Mr Horowitz, to Cadet Robert Kurpiel of the Air Force Academy four years earlier and he gave a wry smile and said something to the effect, I don’t remember his exact words: “Stay in the fight. Good, you are still there and stronger.” I was very affected by this exchange. I felt I had the approval of a man who had inspired my teaching and my resistance against American excesses and crimes.

I asked him: “Dr Zinn, what is your secret on why you have lived so long and so actively.” He noted everyone was calling him “Howard” so why not me; no, he was still my professor. He was still Dr Zinn. He said, “Peter, eat bananas. I eat lots of bananas.” Now I eat lots of bananas and always think about him when I do.

Once I was in his office at B.U. and the phone rang. He got an invitation to speak at some school; I think it was in the south and in one of the Carolinas that wanted him to address the issues of the Vietnam War. I said to him, “Dr Zinn, should I leave?” He waved his hand as if to say “stay.” He said after the call, “Imagine that, a conservative school inviting me!”

On my website I have had for years his name as one of the two most inspirational professors in my training with a link to a Zinn website. His greatness inspired me as it has countless of others. His courage as an educator, labour organiser, antiwar protestor, civil rights activist with S.N.C.C., revisionist historian, advocate for social justice and for democratic socialism will endure. His scholarly oeuvre will endure. His reputation as one of the most significant historians of the twentieth century will endure. As long as I teach. As long as I have students. As long as I have a voice, I will endeavor to perpetuate despite my modest capacities, his foundational emphasis on scholarly activism and progressive change. There is no turning back, not now, not ever.

Two former students e-mailed me this morning informing me about the death of Professor Howard Zinn. That alone sustains my belief in his greatness and in his positive and enduring impact on many of my students.

Under the Bush administration, there had been a series of frankly racist, McCarthyite efforts to exclude progressive Muslim or other academics of colour who dissented from American imperialism and egregious war crimes against Islamic peoples. The State Department has used wisely and judiciously its exemption authority to allow these two Muslim scholars to reapply for travel and work in the United States. “The ACLU of Massachusetts sued in 2007, challenging Habib’s exclusion on behalf of the American Sociological Association, the American Association of University Professors, the American-Arab Anti-Discrimination Committee and the Boston Coalition for Palestinian Rights.” This is clearly a positive development in allowing academic freedom, free speech and the exchange of robust ideas to flow more freely on college campuses and at academic conferences. I wrote about the  egregious exclusion of these two major intellectual figures prior to  their recently cleared status in Matthew Morgan, ed., The Impact Of 9/11 and The New Legal Landscape: The Day That Changed Everything (Palgrave Macmillan, 2009) 67-9:

Tariq Ramadan

Tariq Ramadan, a Muslim scholar born in Egypt, was offered in 2004 a tenured position in Islamic Studies as Luce Professor of Religion, Conflict, and Peace-Building at the University of Notre Dame. Ramadan had enrolled his children in school, rented a house in South Bend, Indiana, and even shipped his furniture before he was notified that his visa had been revoked because he endorsed “terrorism” and was subject to the “ideological exclusion” provision of the PATRIOT Act. The government later recanted those arbitrary charges when faced with a lawsuit, but concocted a different allegation that his donations, totaling $940 to charitable organizations, actually supported Hamas in Israeli-occupied Palestine. Hamas is designated as a “terrorist” organization by the Department of State despite its victory in the January 2006 Palestinian Authority general legislative elections. Ramadan asserted he was the victim of political persecution when denied his prestigious appointment at Notre Dame: “I am increasingly convinced that the George W. Bush administration has barred me for a much simpler reason: It doesn’t care for my political views. In recent years, I have publicly criticized U.S. policy in the Middle East, the war in Iraq, the use of torture, secret C.I.A. prisons and other government actions that undermine fundamental civil liberties…”

The Customs and Border Protection on October 25, 2006 also denied entry to Adam Habib of South Africa when he arrived at New York’s John F. Kennedy Airport to attend several meetings. A political scientist and a Muslim, he earned his Ph.D. from the City University of New York and was deputy vice-chancellor of research, innovation and advancement at the University of Johannesburg in South Africa. He was also prohibited from attending the 2007 American Sociological Association annual meeting in New York. It is indisputable that scholars from various nations, who are neither dissidents nor opponents of their regimes, are being denied entry for ideological reasons or bilateral diplomatic disputes unrelated to a foreign scholar’s legitimate credentials.

1) President Barack Hussein Obama frequently “quotes” Dr King: “The Arc of the Moral Universe is Long but it Bends Toward Justice.” Actually this quotation was from a sermon from the great Unitarian New England Minister Theodore Parker in his advocacy for the abolition of slavery. In his 1853 sermon on “Justice and the Conscience,” Parker declared:

“I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice.”

2) After the voting rights marchers in 1965 from Selma to Montgomery belatedly arrived after Bloody Sunday at the steps of the Alabama state capital, Dr Martin Luther King Jr delivered a sermon with the captivating cadence, “How Long, Not Long,” between various biblical and Parker’s sermon reference. Several whites including Unitarian minister Rev. James J. Reeb and civil rights workers such as Viola Gregg Liuzzo, from Detroit, had been killed on the highway in the Selma civil rights event that attempted to cross the Edmund Pettus Bridge. Liuzzo was the first white woman to be killed in the decades long anti-anpartheid freedom struggle in the United States. Of course most of the casualties were African American. The Selma marches led to the passage of the quite successful Voting Rights Act of 1965.

3) I am sure if he were alive today, he would stand at the gates of Gaza or Port-au-Prince or encircled Bethlehem and proclaim: “How Long, Not Long!” Indeed how long do we turn or backs to the quasi-genocide against Palestinians and the persistent poverty in the Caribbean and sub-Sahara Africa. How long do we use the selfish, evil mantra of national security and vital interests to perpetuate such mass suffering while astonishingly claiming to be the greatest nation on Earth: “How long, not long!”

4) Dr King received his Ph.D. from Boston University in Systematic Theology in 1955. His dissertation, which at times digressed from best practices in citing and acknowledging one’s sources, was entitled: “A Comparison of God in the Thinking of Paul Tillich and Henry Wiseman.” I received my B.A. in Government from the same university.

This is a link to a podcast in which Terri Ginsberg and her Chicago-based attorney Rima Kapitan discuss the academic freedom violations attendant to the former’s dismissal as a film professor at North Carolina State. I have previously posted her complaint as filed in the state-court system in North Carolina. This link contains three interviews and Dr Ginsberg and Rima Kapitan’s begin around the forty minute mark. One cannot fast forward unfortunately but Law and Disorder is a progressive legal website which merits a wider audience.

They are rather responsive to comments. I noted an error in their institutional affiliation of Terri and it was corrected very quickly with an acknowledgment. The following are the production notes  and image from the website:

Dr Ginsberg at Law and Disorder studio interview:

Film Professor Sues University for Violating Right to Academic Free Speech

In the fall of 2007, Dr. Terri Ginsberg was hired to teach a film class at the North Carolina State University focusing on the media treatment of the Israeli-Palestinian conflict in 2008. She was also hired to help program a Middle Eastern film series.  As Terri details in a grievance the director of the film studies program and the director of the Middle East studies program made a series of decisions that violated her academic freedom. Among the decisions was the limiting of Terri’s invovlement in the series that she had initially been hired to curate. Another was the criticism of an introduction she gave at the screening of the Palestinian film “Ticket to Jerusalem” as biased and overly political.

The grievance filed alleged violations of her First Amendment and equal opportunity rights under the University Code. Her grievance was dismissed on the grounds that it was filed too late and that she was no longer a university employee. Terri has now filed a lawsuit, one mention in the complaint states that in the views of several faculty,  Jews who question and challenge the zionist colonial project are non-conforming Jews and therefore are outsiders and dangerous.

Terri Ginsburg / Attorney Rima Kapitan

• I was given strong indication the teaching professorship would convert into a permanent tenure track position.
• That I should apply for it and that I was a shoe in for that position. So I moved down from New York City, where I lived for many years to Raleigh, NC. Not long after I got there, a number of incidents occured that led me to believe the conversion was not going to take place.
• Key people in the faculty were very unhappy with my perspectives on the Israeli – Palestinian conflict and on Zionism. I am a Jewish Anti-Zionist, and I wanted to supply a genuinely balanced perspective on the issue of Zionism and the history as it has been depicted in cinema
• I showed Israeli films, I showed Palestinian films, I showed the array of cinema on this topic.
• This is a large campus upwards to 40 thousand students.
• I was asked to resign from a middle eastern series after I gave an introduction to a film that was pro-Palestinian.
• Attorney Rima Kapitan: Right now we’re alleging they violated her North Carolina Constitutional Rights. They breached her right to academic freedom and equal protection under the law.
• Terri covered every path in North Carolina, the only thing left is a constitutional claim in North Carolina.
• Under the equal protection claim, we’re saying Terri was treated differently because of her religion.
• Terri: The atmosphere is increasingly worse not only for Jews but anyone who speaks out on this issue, especially for non-tenured and temporary labor.
• I had minimal support from the AAUP, they failed until we put out a petition that received over 500 signatures.
• Most faculty on campus were afraid to communicate with me, over email, over telephone.
• I think the Israel-Palestine conflict is one of the core issues facing the United States.
• Film is a small field and gossip travels fast. I’m unemployed. When I did my research on the holocaust, I couldn’t ignore the structural relationship between the holocaust and the Nakba.

Guest- Dr. Terri Ginsberg joins us in the studio today she has a Ph.D. in Cinema Studies from New York University and previously taught in the Jewish Studies Program at Dartmouth College and the Cinema Studies Program at Rutgers University. 

Guest – Attorney Rima Kapitan - staff Attorney at CAIR-Chicago. She is a graduate of DePaul University College of Law and Indiana University and a partner with Amal Law Group, LLC, a general practice law firm. Her main areas of interest and specialization are plaintiff-side employment discrimination, civil rights law, workers compensation and estate planning. She is active in the National Lawyers Guild Middle East Committee.

The article is Peter N. Kirstein, ”Hiroshima and Spinning the Atom: America, Britain, and Canada Proclaim the Nuclear Age, August 6, 1945,” The Historian, Winter 2009, 805-27. The Historian is a refereed journal at the University of South Florida and published by the history honorary society, Phi Alpha Theta. It started publishing in the 1930s during the Great Depression.

Basically, the selling of the atomic genocide begins during F.D.R.s presidency and NOT Truman’s. While the latter was the perpetrator that led to the extermination of Hiroshima and Nagasaki, the planning of selling, justifying and urging a  nuclear monopoly begins with Roosevelt. I found documents in the National Archives in microfilm in the Chicago branch that included a draft presidential announcement and other significant primary source material that reveals this. Historiography just got it wrong. The selling of the atom and the preparation for presidential propaganda precedes Roosevelt’s death in Warm Springs, Georgia on April 12, 1945.

In addition the article is the first to compare the exterminationist rhetoric of the US, UK and Canada when they orchestrated five announcements on the day of the Hiroshima destruction that was the most important date of the twentieth century: August 6, 1945. These were generated by Harry S Truman, of course now considered by liberal historians as one of the greatest presidents. He was a war criminal and perhaps the worst. Secretary of War Henry Stimson, British Prime Minister Clement Attlee, former British Prime Minister Winston Churchill and Canadian government official C. D. Howe also delivered or had others read or release their announcements. The rhetoric varies from exterminationist bombast by Truman and Churchill to a more reflective, calibrated response by Howe.

Truman and Churchill: Advocates of strategic bombing during World War II: a barbaric, insensate war of burning cities. From Google Images, “Truman War Criminal.” I would remove the question mark under the image.

I think it is historically significant to compare and contrast the first public statements on the arrival of the nuclear age. This has not appeared before and new information on the editing, drafting and delivery of these epochal statements appear for the first time.

Authors are rather limited in what they can reproduce from their scholarly articles due to waiver of copyright but if one is interested in reading an online PDF version, it is available. Academic Search Complete is an online database. However this is not a free service and is usually available through a university or college library online databases. If you email me at kirstein@sxu.edu I could, if you cannot do so, provide an email link to the article directly. Academic Search Complete allows its users to send via e-mail PDF full texts to individuals. It is certainly one of the more comprehensive databases and I use it frequently. Since the journal has published the first page online on The Historian website, I believe it proper to reproduce merely that page as well.

© 2009 Phi Alpha Theta

HIROSHIMA AND SPINNING THE ATOM: AMERICA, BRITAIN, AND CANADA PROCLAIM THE NUCLEAR AGE, 6 AUGUST 1945

PETER N. KIRSTEIN

When the Manhattan Project accelerated from theoretical physics to the actual engineering phase of the atomic bomb, Washington policy makers were determined to gain a propaganda advantage. Although no one knew precisely when the atomic bomb would be introduced into the Pacific War, senior civilian and military elites had resolved that, once that fateful decision was executed, they would inundate the American public and the international community with extremely positive and jingoistic justifications for the cataclysmic arrival of the nuclear age. In the United States, nuclear propaganda preparations began during the Roosevelt administration and intensified during the first months of the Truman presidency. The United States carefully orchestrated with the United Kingdom and Canada the release of multiple statements extolling the magnifi­cence of the new epoch. When the atomic bomb destroyed Hiroshima on 6 August 1945 and World War II became a nuclear war, senior leaders of all three countries delivered five carefully coordinated announcements on that same day.

In the United States, the many drafts of presidential and secretary of war statements initially recognized the global peril of nuclear weapons’ proliferation. As the day of atomic bombing approached, however, the drafts increasingly envisioned that America would enjoy a prolonged atomic monopoly and barely mentioned the need for international arms control. Starting in 1945, the proposed public rhetoric of the drafts became wartime propaganda, increasingly…

Peter N. Kirstein is a Professor of History at St. Xavier University and Vice President of the American Association of University Professors, Illinois. He is the author of ^“Challenges to Academic Freedom since 9/11,^” in The Impact of 9/11 and the New Legal Landscape, ed. Matthew J. Morgan (Palgrave Macmillan, 2009). The author would like to thank Judith A. Dwyer for granting him a sabbatical to write this article and the anonymous reviewers for their constructive comments.

Dr Patrick McCarthy was the lead investigator of an article that appeared in The Journal of Thoracic and Cardiovascular Surgery. This was briefly mentioned in the Wall Street Journal article that I reproduced entirely in this post. So I actually tried to find the article and this is the full citation:

P.M. McCarthy, MDa,*, E.C. McGee, MDa, V.H. Rigolin, MDb, Q. Zhao, MDb, H. Subaius, MAc, A.L. Huskin, RNc, S. Underwood, RNa, B.J. Kane, RDCSb, I. Mikati, MDb, G. Gang, MDa, R.O. Bonow, MDb , ”Initial clinical experience with Myxo-ETlogix mitral valve repair ring,” The Journal of Thoracic and Cardiovascular Surgery: July, 2008,136:73-81. {My emphasis. See below. The letters after degrees are then coded to refer to different units of affiliation within Bluhm Cardiovascular Institute at Northwestern}.

This is its publication history prior to the article’s July release: Received for publication June 15, 2007; revisions received December 21, 2007; accepted for publication February 12, 2008.

Note that cardiologist Dr Nalini Rajamannan’s name is not included in the rather large group of co-investigators. She selflessly withdrew her name from this study when she construed the use of the myxo ring as injurious to one of her patients and its use in a  virtual clinical trial without the imprimatur of an Institutional Review Board (I.R.B.).  She eschewed the opportunity to publish with Dr McCarthy due to a higher calling of ethical commitment to appropriate research and surgical standards at the Bluhm Cardiovascular Institute. She has claimed since 2007 that Dr Patrick McCarthy, a prominent cardiothoracic surgeon and director of the Bluhm Cardiovascular Institute, deployed surgical patients in clinical trials to test the myxo device without appropriate Food and Drug Administration (F.D.A.) approval.

Her courageous allegations have certainly contributed mightily to the advancement of medicine. When should a device be resubmitted for F.D.A. approval and what constitutes a “minor modification?” What is the linkage between financial gain from a “patented” device and a surgeon’s motivation to market rapidly modified forms in which he or she derives a financial benefit? Where is patient safety elevated to the level it merits so human experimentation is never allowed in this nation under false pretenses?

The McCarthy article is rather revealing in its self-promotion:

The title of the article contains the phrase “Initial clincial experience” suggesting this was indeed an inaugural clinical trial of the myxo ring. The abstract  further states that the “objective” of the study was:

“Objective: Complexity of mitral valve repair for myxomatous disease has led to low adoption. We report initial experience with a new ring designed specifically for myxomatous disease, the Myxo-ETlogix (Edwards Lifesciences LLC, Irvine, Calif).” (emphasis added)

I highlighted ” initial experience” and “new ring” that would seem to confirm this was an experimental device or at the very least lend considerable argumentation that the myxo ring was indeed a significant modification of  a prior oblong-shaped earlier version. The article is basically promoting a new implant for mitral-valve repair patients. The “Objective” did not describe a “tweaked device;” it did not state a “minor modification” of an earlier mitral-valve ring intended to deter blood flowback or regurgitation. This may well have been a type of marketing an eponymous device for financial gain by asserting without equivocation it was a “new ring.” Modern medicine with its profit-driven culture I believe is a clear and present danger to the patients it is supposed to serve: much less the 50 million who are not served or even included in our capitalistic, non-socialistic health care meltdown.

Dr Patrick M. McCarthy

This is the entire abstract from the Journal of Thoracic and Cardiovascular Surgery ^_* Address for reprints: Patrick M. McCarthy, MD, Northwestern University, Division of Cardiothoracic Surgery, 201 E Huron St, Suite 11-140, Chicago, IL 60611-2908. (I deleted his email address but it is contained in the online abstracted version ).

Objective: Complexity of mitral valve repair for myxomatous disease has led to low adoption. We report initial experience with a new ring designed specifically for myxomatous disease, the Myxo-ETlogix (Edwards Lifesciences LLC, Irvine, Calif).

Methods: From March 15, 2006, through November 19, 2007, 129 patients underwent mitral valve surgery for pure myxomatous disease, and 124 valves (96.1%) were repaired. The Myxo-ETlogix ring was used in 100 cases and the Physio ring (Edwards) in 24. The Myxo-ETlogix design includes a 3-dimensional shape to reduce systolic anterior motion and a larger orifice to accommodate elongated leaflets and decrease need for sliding plasty. Direct mitral valve measurements were made. Sizing was based on A2 height, and choice of ring type was based on unresected leaflet heights.

Results: There was no operative mortality or lasting perioperative morbidity. The Myxo-ETlogix group had taller A2, P1, P2, and P3 leaflet segments than the Physio group (P .003). Only 1 sliding plasty was performed for asymmetry in the Myxo-ETlogix group. Predischarge and follow-up echocardiograms (n = 338 in 124 patients) disclosed transient nonobstructive chordal systolic anterior motion in 3 echocardiograms in 3 patients. No patients had 2+ or greater mitral regurgitation. At discharge, 5.7% had 1+ mitral regurgitation; this proportion was 17.3% at last follow-up (mean 6.1 ± 4.4 months).

Conclusion: In initial experience with the Myxo-ETlogix ring, nonobstructive systolic anterior motion has been rare and obstructive systolic anterior motion not observed. Ongoing prospective echocardiographic and clinical studies will elucidate the role of this etiology-specific ring.

It seems, no it is definitely a game changer, if it could be determined that the myxo ring was or was not commercially available prior to its use in Northwestern heart patients in 2006. If it were for “sale” it was not experimental; if it were not for “sale,” then it was investigational since it was still in the experimental phase. Clearly, if Northwestern, Dr McCarthy and Edwards could prove that it was in the marketplace, they would have by now. I doubt if they can since the reasons for withholding full disclosure of its availability are incomprehensible otherwise. So they backtrack and state it was just a “minor modification” of an older model.

Other Kirstein posts:

January 1, 2010 Did the McCarthy Myxo Ring Require F.D.A. Approval? Dr McCarthy’s Article Described it as “Initial” and “New.” http://english.sxu.edu/sites/kirstein/archives/4151

December 29, 2009 Dr Nalini Rajamannan: Curious “Reassignment to Other Duties” and Additional Academic Freedom Concerns

http://english.sxu.edu/sites/kirstein/archives/4061

December 28, 2009 Did Northwestern Retaliate Against Dr Nalini Rajamannan? Was her Academic Freedom Violated?

http://english.sxu.edu/sites/kirstein/archives/4002

December 26, 2009 Part II: Mitral Valve Ring War Between Dr McCarthy and Dr Rajamannan: Race, Class, Gender and Patient Rights. http://english.sxu.edu/sites/kirstein/archives/3964

December 24, 2009 Myxo Mitral Valve Ring War: Dr Patrick McCarthy v. Dr Nalini Rajamannan: I side with Rajamannan

http://english.sxu.edu/sites/kirstein/archives/3911

comments to kirstein@sxu.edu

I think it is obvious that Northwestern Memorial Hospital has suspended Nalini Marie Rajamannan, MD, associate professor, Northwestern University Feinberg School of Medicine, or if one prefers a more charitable term, “reassigned to other duties.” Let us be clear and factual. In 2007 Dr  Rajamannan charged that Dr Patrick McCarthy was conducting unauthorised clinical trials with a mitral-valve device (myxo) without patient consent.  It is not debatable that the myxo device alteration was not F.D.A. approved, although Dr McCarthy and Northwestern and of course the manufacturer, Edwards Lifesciences, claim it did not require F.D.A. approval because the Myxo ETlogix annuloplasty ring 5100 was merely a “minor modification.” Can’t they come up with a less impersonal name for a contraption that is supposed to save someone’s heart from  mitral-valve regurgitation? Anyway, I wonder if patients consider it “minor” to reshape a device going into their heart for possibly decades. Count me as a dissenter here.

Dr Rajamannan was removed from clinical practice in 2008 and reassigned to research duties. This is a fact.  She did not ask for this reassignment but was forced to give up her clinical practice in treating and managing cardiovascular disease. That is what cardiologists do: treat, diagnose, test and ultimately when indicated refer for intervention to a cardiothoracic surgeon. Cardiologists do not slice and dice. They are not surgeons. Surgeons are not cardiologists and are “fixers” of surgically-needed repair, replacements, transplantation and a host of other procedures to keep our hearts pumping our blood throughout our bodies!!

I think it is appropriate to reproduce a passage from a recently published book chapter I contributed to  “Challenges to Academic Freedom Since 9/11,” in Matthew Morgan, ed., The Impact of 9/11 and the New Legal Landscape: The Day That Changed Everything (Palgrave Macmillan, 2009) 65. It summarises the literature on the conditionality for suspensions and reassignment to other duties established by the American Association of University Professors, A.A.U.P. Redbook: Policy Documents and Reports:

“[Academicians] are being capriciously and arbitrarily suspended or reassigned to other duties for an assortment of reasons. A.A.U.P. policies on sanctions are precise. The suspension of a professor must be restricted to cases in which “immediate harm to the faculty member or others is threatened.” The ninth “1970 Interpretive Comment” of the “1940 Statement of Principles on Academic Freedom and Tenure,” the “1958 Statement on Procedural Standards in Faculty Dismissal Proceedings,” and the revised 1999 “Recommended Institutional Regulations on Academic Freedom and Tenure” clearly articulate this policy.”

It is essential that the public understands that academicians cannot be suspended or reassigned to other duties unless the above provision applies. The documents cited above clearly couple suspension and reassignment to other duties as limited to only those cases that satisfy the “immediate harm” standard. What is rather ironic in this case is that a physician, in an attempt to protect patients whom she feels were being subjected to “immediate harm”  through experimental mitral-valve  repair rings, is transferred from patient care to “research.”

Dr Rajamannan was lead investigator for an article that I think means pop those statins and your heart valves won’t narrow and inhibit blood flow! Whoopee!!: “Atorvastatin Inhibits Hypercholesterolemia-Induced Calcification in the Aortic Valves via the Lrp5 Receptor Pathway.”

It defies comprehension that Dr Rajamannan’s relative exile was in the best interest of the treatment of her former patients, not to mention future ones, that is the raison d’etre of Northwestern Memorial Hospital and the Bluhm Cardiovascular Institute. It contravenes best practices that a brilliant cardiologist who trained at the Mayo Clinic and is in engaging in presumably cutting edge research on managing the progression of valvular heart disease is barred from examining, treating or consulting with patients! So the question remains was this a public relations move  to remove an assertive advocate for patient care from the orbit of patient care or simply an effort to intimidate a female minority physician who professionally and ethically challenged the surgical practices of a prominent cardiovascular surgeon?

Yet our society should not suppress non-tenured faculty who challenge those who are tenured and have endowed chairs. Academia is required to provide the same amount of academic freedom to BOTH tenured and tenure-track faculty. Northwestern should reexamine its treatment of this physician, carefully study the extant American Association of University Professors literature and simply ask themselves whether patient care is being served and advanced by removing this cardiologist from clinical practice.

Her current reassignment and denial in all likelihood of her academic freedom is in a sense unrelated to the facts or final resolution of the controversy concerning human experimentation v. minor modification of a mitral-valve ring. Her behaviour has been by all accounts that I have read collegial and based on medical practices and not personality or ad hominem character assassination. Northwestern does not benefit from nor should it seek a medical staff that speaks with one voice. It should as the Mayo Clinic and Barnes and Johns Hopkins and Cleveland Clinic presumably do encourage dissent and the robust challenging of others work. This is what we want from our physicians and surgeons: not silence if they reveal medical care that is injurious to patients and in contravention of medical best practices. We want robust and persistent advocacy for patient safety and rights.

As a patient at Northwestern and an advocate for academic freedom for all academicians, I have a stake in this outcome and believe Northwestern can ill afford to ignore and marginalise a physician who is exercising her constitutionally protected free-speech rights with courage and determination. Such actions should induce both public and in particular institutional encouragement and approbation. I know from personal experience , as many who read this are aware, that controversy for an institution might be unpleasant for its administration, but in the long run how it manages controversy has a greater and longer-lasting impact on a university or medical center: Namely its capacity to tolerate intellectual assertiveness and promote academic freedom in the pursuit of truth.

Other Kirstein posts:

January 1, 2010 Did the McCarthy Myxo Ring Require F.D.A. Approval? Dr McCarthy’s Article Described it as “Initial” and “New.” http://english.sxu.edu/sites/kirstein/archives/4151

December 28, 2009 Did Northwestern Retaliate Against Dr Nalini Rajamannan? Was her Academic Freedom Violated?

http://english.sxu.edu/sites/kirstein/archives/4002

December 26, 2009 Part II: Mitral Valve Ring War Between Dr McCarthy and Dr Rajamannan: Race, Class, Gender and Patient Rights. http://english.sxu.edu/sites/kirstein/archives/3964

December 24, 2009 Myxo Mitral Valve Ring War: Dr Patrick McCarthy v. Dr Nalini Rajamannan: I side with Rajamannan

http://english.sxu.edu/sites/kirstein/archives/3911

Comments welcome to kirstein@sxu.edu

As a patient for a decade in the Bluhm Cardiovascular Institute at Northwestern Memorial Hospital, I have a dog in this fight: pace Mr Vick! A year or so ago I was contemplating making an appointment with Dr Nalini Rajamannan, the valve director of the Bluhm Cardiovascular Institute, since I have aortic-valve disease and am facing the near certain likelihood of replacement. I went online to read about her impressive credentials and noted she did accept patients. At this website, which one can cut and paste in a browser, it indicates what the patient referral status is of cardiologists at Northwestern:

http://nmhphysicians.photobooks.com/profile.asp?pict_id=4681&Search=Y&Specialty=Cardiology

I decided after a conference with my Northwestern cardiologist, Dr Jyothy Puthumana, that such a consult was not needed at this time. Given the extraordinary talent and care that I was receiving from him, I agreed but had been curious whether her being director of the valve institute would have necessitated an opinion from her. I have read about her research on Portuguese patients with valvular disease who have apparently been able to slow down its progression by taking the statin Crestor, a very high-powered medication in a tiny little pill. I am equally impressed with my cardiologist’s specialty in echocardiography: a huge area in diagnosing cardiovascular disease. He not only gets the read outs from echocardiagrams but also can see the doppler study and independently evaluate it! Again, I have nothing but admiration for the cardiologists at Northwestern.

In any event, if you went to the website above, you will note Dr Rajamannan is not accepting patients and apparently has not been doing clinic since 2008 when the whistleblower began to blow heavy winds on the professional judgment of Dr Patrick McCarthy. This morning I called Northwestern’s 877 number to “make an appointment” with Dr Rajamannan. I was connected to Bluhm and was told by a very cordial and competent staff person, “she is doing only research.” I said, “well how long?” Their answer was, “oh, a couple of years it seems.” I said what about patients she was treating, what happened to them?” They said, “well, I guess they were referred to other cardiologists.” I asked them where her office was and was told they did not know.

In the Wall Street Journal article of December 23, 2009 they included quite a few links to PDF documents including the one below that I cut and pasted onto this blog.  I excerpted the reasons for Senator Chuck Grassley’s, Republican from Iowa, interest in the myxo-ring controversy and his obvious concern that Dr Rajamannan had been sanctioned for being a whistleblower. It appears that for some reason, Dr Rajamannan is not seeing patients which Senator Grassley challenges and seeks an explanation in his letter to then Northwestern President Harry Bienen and Dean Harrison, the C.E.O. of Northwestern Memorial Healthcare.

Even though Senator Grassley lied about death panels and turned his back on those 50 million Americans and/or undocumented workers without health insurance in his opposition to health-care coverage reform, he has doggedly investigated the relationship between physicians and Big Pharma as I covered in the Dr Timothy Kuklo research misconduct case. Anyway this is his letter to Northwestern.

December 3, 2008

Dean M. Harrison
President and Chief Executive Officer
Northwestern Memorial Healthcare
251 East Huron Street
Chicago, IL 60611
Henry S. Bienen, PhD
President  (ed: former president)
Northwestern University
633 Clark Street
Evanston, IL 602085)

Dear Dr. Bienen and Mr. Harrison:

The United States Senate Committee on Finance (Committee) has jurisdiction over the Medicare and Medicaid programs. As a senior member of the United States Senate and as Ranking Member of the Committee, I have  a special responsibility to the more than 80 million Americans who receive health care coverage under those programs to ensure that taxpayer andbeneficiary dollars are appropriately spent on safe and effective drugs  and devices.

I recently received troubling allegations that the Myxo ETlogix 5100 Ring (Myxo Ring), an annuloplasty ring used in heart valve repair, has not been approved and/or cleared for marketing by the Food and Drug Administration (FDA). At the same time it appears that the Myxo Ring has been, and perhaps continues to be, implanted in patients by Dr. Patrick McCarthy, a cardiothoracic surgeon at Northwestern Memorial Hospital.

Furthermore, I was informed that the device is being implanted without an Investigational Device Exemption (IDE), which would allow the device to be used in a clinical study to collect data in support of an application to the FDA for approval. It is my further understanding that Dr. McCarthy invented this device, which is manufactured by Edwards Lifesciences (Edwards), and receives royalty payments from Edwards….

According to a July 24, 2008 letter to Dr. Rajamannan from Northwestern Medical Faculty Foundation, Inc., pursuant to the Foundation’s request, Dr. Rajamannan “agreed not to provide clinical care at Northwestern Medical Faculty Foundation and Northwestern Memorial Hospital.”

a. Please explain why this request was made of Dr. Rajamannan.

b. Did the University and/or Northwestern Memorial Hospital have concerns regarding her clinical performance?

c. Prior to bringing her concerns regarding implantation of the Myxo Ring to the attention of the University, did Dr. Rajamannan receive any poor job performance evaluations? Has the University taken any disciplinary actions against Dr. Rajamannan in the past?

d. Please provide the Committee with a copy of Dr. Rajamannan’s personnel records. Dr. Rajamannan provided a signed authorization on October 28, 2008, for the release of her personal information…

I look forward to hearing from you by no later than January 5, 2009.

Sincerely,

Charles E. Grassley
Ranking Member

I do not know what the disposition of this request was and whether he received a response. Of course Northwestern is not obligated to reveal publicly a personnel matter with one of its staff physicians but I can confirm for whatever reason, she is not available for patient care.

Dr Rajamannan is entitled to academic freedom as defined by the American Association of University Professors. She has the right to address issues of ethics and best practices in carrying out her duties to her patients and to her peers in the profession of cardiology. Her actions of raising the issue of patient experimentation with F.D.A. unapproved myxo rings, in no way bring into question her capacity or skills in practicing clinical medicine but in fact affirm them. The American Association of University Professors includes all faculty in the United States and is the chief defender of their academic freedom and tenure.

If Dr Rajamannan is unaware, she might consider contacting AAUP either directly, my advice, or through her attorney. I am vice-president of the Illinois Conference (State level of A.A.U.P.) and chair of Committee A on Academic Freedom and Tenure. I am also in touch with the national office in Washington, D.C. and I am reasonably  confident there would be interest in a case involving an individual at a major medical center who might have been sanctioned as a university faculty member for actions that fall under academic freedom protection. Specifically in this case, the right to engage in extramural utterances and to do research (or to withhold one’s name from research!) when there is a complaint or grounds of ethical or even legal concerns.

The main source for faculty rights in this nation is A.A.U.P. Policy Documents and Reports (Redbook), 10th ed. Johns Hopkins Press, 2006. It has several statements on medical schools: one is entitled, “Academic Freedom in the Medical School” (1999) that appears on pp. 125-26. I suggest all who are interested in this issue read it:

It states in this excerpt: “According to a 1994 AAUP statement, On the Relationship of Faculty Governance to Academic Freedom, faculty members should be free to speak out “on matters having to do with their institution and its policies,” and they should be able “to express their professional opinions without fear of reprisal.”

Is the removal of a physician from clinical duties a form of reprisal? Is the assignment only to “research” a ruse to avoid Dr Rajamannan from perhaps not referring patients to Dr McCarthy who require cardiovascular intervention? The issue of compensation is irrelevant here assuming her salary was not reduced. It is the issue of allowing a physician to practice the central part of her mission: treatment of patients for research. Not research without patients.  Inquiring minds from Senator Grassley to this patient at Northwestern and activist in A.A.U.P. want to know why she was reassigned to other duties and whether this was retaliation?

She has rights and as a democratic society, we are obligated both morally and professionally, to ensure Dr Rajamannan is treated with fairness, respect and justice.

Other Kirstein posts:

January 1, 2010 Did the McCarthy Myxo Ring Require F.D.A. Approval? Dr McCarthy’s Article Described it as “Initial” and “New.” http://english.sxu.edu/sites/kirstein/archives/4151

December 29, 2009 Dr Nalini Rajamannan: Curious “Reassignment to Other Duties” and Additional Academic Freedom Concerns

http://english.sxu.edu/sites/kirstein/archives/4061

December 26, 2009 Part II: Mitral Valve Ring War Between Dr McCarthy and Dr Rajamannan: Race, Class, Gender and Patient Rights. http://english.sxu.edu/sites/kirstein/archives/3964

December 24, 2009 Myxo Mitral Valve Ring War: Dr Patrick McCarthy v. Dr Nalini Rajamannan: I side with Rajamannan

http://english.sxu.edu/sites/kirstein/archives/3911

comments to kirstein@sxu.edu

This is my second post on the burgeoning national controversy between two physicians at the Bluhm Cardiovascular Institute at Northwestern Memorial Hospital in Chicago: Dr Patrick McCarthy, the institute’s co-director and a cardiothoracic vascular surgeon and Dr Nalini Rajamannan, cardiologist. I would recommend that Northwestern Memorial Hospital establish a patient’s bill of rights and a greater disclosure policy to avoid future situations in which patient safety, as courageously advocated by Dr Nalini Rajamannan, not be compromised. It could serve as a standard for patient care in the United States which is one of the worst in the developed world in terms of access. Indeed this situation at Northwestern is a by-product of the immoral, for profit rationing of health care with its triad of corporate big pharma greed,  a corps of sycophantic, greedy physicians and health insurance moguls.

1) Physicians and Surgeons Should Publicly Reveal Their Relationship with Big Pharma: whether pharmaceutical companies, medical device manufacturers or insurance companies. These should be published and made available to patients in waiting room access areas or on the internet.

2) All pre-surgical consent forms should contain explicit information that is clear and concise summarizing the  doctor’s professional and financial relationship to any and all devices contemplated for implantation.

3) Comment cards in the Galter Pavilion are not enough. Patients like myself have no idea who reads them or how comments can be followed up with sustained action. There needs to be a readily accessible ombudsperson for patients to contact or a direct contact to their Office for Research Integrity. There is none currently. I mean how many patients even know of such an office’s existence? On many occasions I have wanted to raise an issue above physician level but did not know how to proceed since there is NO process that I am aware of.

4) While usually confined to government, Northwestern Memorial patients need to know that “whistleblowers,” staff personnel who reveal alleged misconduct, will not be punished regardless of station or position. Taking a position of riding out a controversy, circling the wagons with legalese and counsel discretion of silence is not the way to run a world-class medical center and hospital.

5) While the Food and Drug Administration did retroactively approve of the modified version of the Myxo ETlogix annuloplasty ring 5100, that is hardly exculpatory. Whether the F.D.A. is in bed with big pharma or not is anyone’s guess but the facts are it did NOT, prior to surgical inplants, approve of the modified version used by Dr McCarthy in 150 patients. One cannot assume it would have approved of it had Dr McCarthy and the manufacturer Edwards Lifesciences Inc.  submitted it for clinical-trial review. One does not know whether Dr McCarthy made additional modifications of samples that were examined retroactively by F.D.A. Whether they differ from those implanted in his patients can hardly be non-invasively determined regardless of the surgical record.

6) The issues of race, class and gender has not been addressed in the journalistic reportage or online commentary on this matter. It needs to be brought into this controversy: there is something rather significant about an Asian-American woman, a native from Minnesota, whose heritage is ethnically derived from Sri Lanka challenging the ethical and professional judgment of a white male colleague who has reached putative “star” status in cardiovascular surgery. Even stars burn out eventually and this issue should be pursued on its merits recognising the societal benefits when anyone, regardless of ethnicity, can challenge another colleague regardless of ethnicity.

In the medical profession, which for so many years was virtually all white, all male, the changing colour and diversity of its practitioners has become increasingly more evident. This confrontation is perhaps a sign of rising confidence and power that minority physicians have deservedly earned. I am not suggesting that race should colour, no pun intended, the determination of fault here in the insertion of modified mitral-valve repair rings without F.D.A. approval. I do believe, however,  there is perhaps a greater societal construct and meaning that is being played out here with potentially significant outcomes in the area of equal rights and the rising status of historically excluded groups.

Northwestern I am sure would prefer Dr Rajamannan to depart and desist from her campaign against unapproved human experimentation. Yet it knows if it were to dismiss or terminate her contract, it would raise issues of sexism, racism, not to mention covering up potential medical malpractice on the part of its physicians and its commitment to patient safety and strict ethical adherence to medical protocol. I for one would never return to Northwestern as a patient under any circumstances.

As I have said in my other post, I have been a patient at Northwestern for over ten years and have received treatment in a variety of departments and have generated probably more than average per patient cash flow to them. They should have more patients like me. I think Northwestern, however, needs to listen to its patients, seek their counsel and recognise that even elite surgeons who generate large financial capital must be held to the strictest accountability in how they provide patient care.

contact for comment kirstein@sxu.edu

Other Kirstein posts:

January 1, 2010 Did the McCarthy Myxo Ring Require F.D.A. Approval? Dr McCarthy’s Article Described it as “Initial” and “New.” http://english.sxu.edu/sites/kirstein/archives/4151

December 29, 2009 Dr Nalini Rajamannan: Curious “Reassignment to Other Duties” and Additional Academic Freedom Concerns

http://english.sxu.edu/sites/kirstein/archives/4061

December 28, 2009 Did Northwestern Retaliate Against Dr Rajamannan? Was her Academic Freedom Violated?

http://english.sxu.edu/sites/kirstein/archives/4002

December 24, 2009 Myxo Mitral Valve Ring War: Dr Patrick McCarthy v. Dr Nalini Rajamannan: I side with Rajamannan

http://english.sxu.edu/sites/kirstein/archives/3911

Who am I? I have written on the Dr Timothy Kuklo, Washington University in St Louis School of Medicine case extensively which dealt with the Medtronic disgrace with falsified research, misleading data, fake co-authorships and the like. I wrote more on this case than any other online source and have gotten 10,000s of hits. But, who am I? I am a patient at Northwestern Bluhm Cardiovascular Institute and I have noticed that patients’ views are considered inconsequential by both the press and Northwestern unless they are litigants. Interesting if not elitist. Well I have strong views on this scandal and a stake in its outcome.

Dr Rajamannan: Heroic Northwestern cardiologist who protects and advocates for her patients.

I have been a patient at Northwestern for ten years and have been treated by Dr David McPherson, who is now at the University of Texas Medical School in Houston, and Dr Jyothy Puthumana. They are cardiologists and are exceptional, attentive, creative and deservedly of high reputation and achievement. I have never met Dr Patrick McCarthy nor Dr Nalini M. Rajamannan but I know full well the issues of using for clinical trials, unsuspecting patients needing heart-valve replacements or in this case mitral-valve repair. I should add I was diagnosed also with mitral-valve prolapse but Northwestern has removed me from this diagnosis due to new diagnostic guidelines and frankly the creative wonders of their cardiology department. Of course heart surgeons are NOT cardiologists and at the Galter Pavilion in downtown Chicago, they share the same 19th floor but a different pavilion.

Who am I? Well, I have a heart murmur, aortic regurgitation, aortic insufficiency which means my bicuspid valve forget its third leaflet probably while in gestation.  I also have an aortic aneurism but with less than one percent chance of dissection. Yeah, I do resistance training and run 3.9 miles or so six days a week and I am asymptomatic. Basically, I was born most likely with a heart valve that does not close properly and, hence, when it pushes blood through the body, some of it falls back into the left ventricle. At some point, I will need aortic-valve replacement in which my aortic valve is removed and replaced with a pig or cow valve which lasts for decades and does not need daily warfarin management (blood thinners which are a real bummer). The surgery is very safe with a morbidity rate of between 1-2%. One of the reasons it is safe is that the Food and Drug Administration (F.D.A.) approves every device that is implanted and the surgeons for the most part are dedicated to saving their patients from progressive cardiovascular and/or valvular disease and restoring them to health and fitness.

Dr McCarthy tweaked this into a triangle-shaped device without F.D.A. approval prior to implantation in 150 patients. It looks mechanical to me and I wonder if patients have to be on anticoagulant blood thinners every day for life? Those are not a walk in the park but to a hospital clinic every week or so to test the blood-thinners. Ok, I am just a Ph.D. in history but patients are not stupid and in gaping, awe of their physicians regardless of conduct.

Who am I to comment on the McCarthy v. Rajamannan dispute? Well I would not want a device such as the Myxo ETlogix annuloplasty ring 5100 implanted in my heart, even for mitral regurgitation repair and not replacement, that was not F.D.A. approved. Duh! I don’t need to be treated as a guinea pig by a for-profit surgeon with an eponymous device that was modified and not PREVIOUSLY peer reviewed in the literature and not subject to clinical trials under F.D.A. approval. Dr McCarthy implanted in about 150 patients an experimental device used for mitral valve regurgitation: the heart has four valves and McCarthy is an inventor of valves for the mitral valve. Some of his patients required explantation or removal of the mitral valve device that was altered by Dr McCarthy without receiving F.D.A. approval: namely clinical trials must precede patient experimentation. I do not know if the modified device was the cause of illness in some of his patients but there are lawsuits galore against McCarthy and Northwestern. Hardly surprising if not salubrious hopefully to deter such medical “wild-west” shows.

I concede there are grey areas in which F.D.A. approval is not always clearly mandated. Yet a physician, even a “star” grabbed from the Cleveland Clinic, by image conscious Northwestern Memorial Hospital, should exercise logical, rational restraint. Don’t implant without testing. Don’t skirt the edges of F.D.A. mandates since the prize, the purpose is wellness and patient care. Maybe Dr McCarthy should spend a year on “paid leave” in community clinics, or inner-city hospitals and get a taste of the real world outside Streeterville–a posh area on the Gold Coast astride the Magnificent Mile of Michigan Avenue.

Dr McCarthy claims that he merely “tweaked” the F.D.A. version and, hence, made minimal alterations not requiring further “expensive, time consuming” clinical trials. I think this is very poor judgment and a challenge to the system in place that monitors surgical practices  at Northwestern and the Bluhm Cardiovascular Institute. I have had a consult with Dr Chris Malaisrie, who is at Bluhm at Northwestern and an impressively credentialed cardiothoracic surgeon and he struck me as thorough, honest and empathic. {I did see Dr McCarthy in the hall when I was with Dr Malaisrie but have not met or spoken to him as noted earlier.} Yet I am hesitant, very hesitant to have device(s) implanted in my heart that have not been previously subjected to rigorous testing.

Northwestern is backing its “man” and declared he merely performed “minor modifications” on the mitral ring and has decided not to buy him out or fire him. It could at least order emphatically that full disclosure of his financial stake in cardiovascular devices be clearly and unambiguously communicated to patients prior to consent!  I wonder if Dr McCarthy’s actions have been investigated by a neutral, non-Northwestern medical-ethics review board? Have patient-activist advocates been consulted? Northwestern should back Nalini, who is basically a whistleblower, who has the courage and a commitment to her taking the Hippocratic Oath: “Do no harm” to challenge the “star” and “bread winner” for Northwestern’s cardiovascular department. She has been a voice of dissent, a voice of courage, a voice of conscience and demurral against deploying unsuspecting, very sick patients as possible experimental subjects for one’s financial and professional ambitions.

That is wrong, unethical and possibly very damaging to patients! This is about decency. This is about honour although I do not know Dr McCarthy personally. This is about patient safety. Not without supervision “tweak,” alter, modify, HEART VALVE DEVICES, without full disclosure to patients.

I ask this of Dr McCarthy. If you were merely making modest modifications with the Edwards’ Myxo device and weren’t altering its functionality or efficacy, then why reshape it? What was your reasoning in changing the shape of the device? Yes the shape that sounds like more than a mere pinch or two but a major modification. Why modify in the first place if it were so inconsequential that you did not seek governmental, or peer-professional approval that the device could pass clinical trials? You can’t have it both ways especially when the lives of your patients are at issue.

When I was in Dr Malaisrie’s office, I was handed a sheaf of documents, without oral instruction, by a nurse practitioner. One of them was to give consent on being part of a test-cohort following surgery. I thought this was odd if not premature since I had not even been examined yet much less recommended for open-heart surgery. No one attempted to explain it to me. No one went over the parameters of these written consent forms. I refused to sign it in part because of my fear I might be used inappropriately as a test-subject for investigational devices and wondered what were the benefits in signing: other thanmaybe advancing generally the progress of medicine. Dr McCarthy’s name was on the document and while presumably a form used in many clinical settings, I thought it was too presumptuous, rather hasty and in part intimidating. To patients: don’t sign anything until you have read it, and understand it. Just don’t sign until you know YOUR rights and YOUR health are not being compromised.

Who am I? A patient at Northwestern who will remain there as a cardiology pateint but will not, when the day comes, place myself in the cardiovascular or cardiothoracic department with this cloud, this ethical wrong, hanging over its reputation. I am incensed that any physician would engage in this type of ad lib, monkeying around with valvular devices without any sense of humility or restraint. I am elated that a phyisican, Dr Rajamannan, without the clout or the money-making heft has the fortitude and the professional ethical brilliance to fight, resist, and challenge the all powerful Dr McCarthy and his insouciance toward patient care. Yes I know he has his side of the argument but I have mine and the right and the willingness to speak out for those of us who have or will with certainty face the day of open-heart surgery. Our time has come to insist the profession of medicine reward only those surgeons and physicians who construe it a privilege to care for and heal patients.

The author is the son of Melvin B. Kirstein, M.D. an internist who taught at the Washington University in St Louis School of Medicine and co-authored with Michael Somogyi the pathbreaking article on diabetes and the “Somogyi Effect.”

comments are welcome to kirstein@sxu.edu

Other Kirstein posts:

January 1, 2010 Did the McCarthy Myxo Ring Require F.D.A. Approval? Dr McCarthy’s Article Described it as “Initial” and “New.” http://english.sxu.edu/sites/kirstein/archives/4151

December 29, 2009 Dr Nalini Rajamannan: Curious “Reassignment to Other Duties” and Additional Academic Freedom Concerns

http://english.sxu.edu/sites/kirstein/archives/4061

December 28, 2009 Did Northwestern Retaliate Against Dr Rajamannan? Was her Academic Freedom Violated?

http://english.sxu.edu/sites/kirstein/archives/4002

December 26, 2009 Part II: Mitral Valve Ring War Between Dr McCarthy and Dr Rajamannan: Race, Class, Gender and Patient Rights. http://english.sxu.edu/sites/kirstein/archives/3964

Other articles on this dispute are:

Chicago Tribune 12.24.09

Wall Street Journal 12.23.09 Since it is online subscription, I was able to get full text through Google that Rupert Murdoch, owner of the WSJ, wishes to bypass! Good luck Mr Conservative who employs FOX news hosts who call the president of the United States: racist!!

BY ALICIA MUNDY AND JARED A. FAVOLE

At Northwestern University’s prestigious research hospital, one heart doctor is making a serious accusation against another. Nalini Rajamannan alleges that Patrick McCarthy, her former professional idol, engaged in “human experimentation” on patients’ hearts without their approval.

Dr. McCarthy, a noted surgeon, categorically denies it. “Does that sound plausible?” he says. As part of the brawl, Dr. Rajamannan sought a financial agreement with Northwestern that included a $2 million endowed research chair.

The dispute centers on a silver-dollar-sized piece of silicone and metal known as a Myxo ring, used to pinch together leaky heart valves. Dr. McCarthy invented it. And he implanted it in more than 150 patients before the device received approval from the Food and Drug Administration.

Because of the controversy, the FDA retroactively examined and approved the Myxo ring and said it is “safe” as used.

Yet the clash between the two doctors — once close collaborators, now bitter foes — is causing the FDA to re-examine a little-known but critical part of its approval guidelines, which it says are ambiguous. Currently, this section lets device makers decide on their own, without FDA input, whether or not some new devices require regulatory approval.

William Maisel, director of the Medical Device Safety Institute at Harvard Medical School, said the current FDA procedures represent a “giant loophole” that medical-device makers can use to sidestep scrutiny. He called the Myxo case a “poster child” for the issue.

The Myxo ring’s manufacturer, Edwards Lifesciences Corp., says it believed the Myxo ring didn’t need to be submitted to regulators because it was similar to previously approved heart-valve rings it makes.

Northwestern University and Dr. McCarthy say they relied on the manufacturer to get FDA approval. The matter has spawned two lawsuits, a Senate investigation and worries in the medical-devices industry about the potential effect on the bottom line of manufacturers.

There is no way to know how many medical devices may have followed a similar path to use in patients since 1997, when a guidance document allowing this flexibility was introduced. But both industry and regulators say this guidance may have saved the industry hundreds of millions of dollars during that time.

Jeffrey Gibbs of Washington law firm Hyman, Phelps & McNamara, which represents device makers, defended the current rules, saying the industry needs the “gray zone” to avoid redundant new-device applications. “It would be a nightmare for the FDA, and companies, if they had to apply for each tweak” to an already-approved device, he said.

The rules permit the sale of certain new devices without the need for regulators’ approval if the device is a version of an FDA-approved product from that same company.

A change in FDA procedures could require expensive clinical trials, Mr. Gibbs said, and in some cases retroactive re-examinations of devices now in use that weren’t previously submitted for approval.

For hospitals, heart surgery is a powerful revenue engine, and surgeons who make the “best doctor” lists are the high-priced stars who drive it. One mark of distinction they covet is a device named after themselves.

When Dr. McCarthy moved to Northwestern from the Cleveland Clinic in 2004 as co-director of a newly created heart institute, he was developing the McCarthy Myxo heart valve ring. That year, he filed a patent application for the Myxo, which he created by bending an FDA-approved oval ring into a triangular form.

The arrival of Dr. McCarthy was a big deal at Northwestern, says Dr. Rajamannan. “He’s one of the top surgeons in the country and has amazing technique, and our daily volume [of surgeries] jumped,” she says. “We all were dying to work with him.”

The daughter of Sri Lankan immigrants who came to Minnesota, Dr. Rajamannan, 46, says she wanted to be a doctor since she was three.

Dr. McCarthy, 54, son of a surgeon, chose that path later — in second grade, he has said. Both went to Notre Dame and later worked at the Mayo Clinic in Minnesota.

Dr. Rajamannan’s innovative research at Mayo and Northwestern on heart-valve problems earned an invitation from Dr. McCarthy in 2006 to be part of a paper he was going to publish on his Myxo invention. “I was very excited,” she says.

That year, both heart specialists shared a page in Chicago Magazine’s “Top Doctors” issue.

One of Dr. McCarthy’s early implant patients was Antonitsa “Toni” Vlahoulis, then a 38-year-old X-ray technician and a mother of two, who suffered from a life-threatening mitral-valve disorder. The heart has four valves that keep blood flowing in the right direction. Dr. McCarthy’s ring is designed to keep the mitral valve closing and opening correctly so blood doesn’t back up into the lungs.

Dr. McCarthy’s valve repair at first appeared to clear Ms. Vlahoulis’ shortness of breath. But then her breathing worsened, she says, sending her frequently back to her cardiologist.

Ms. Vlahoulis says she was surprised when she received a “warranty card” in the mail — the kind of postcard that appliance makers send after a purchase. It was for her new implant: the McCarthy Annuloplasty Ring Model 5100.

She realized the product wasn’t listed in the catalog of heart rings she says Dr. McCarthy had given her before surgery. She says Dr. McCarthy had told her she would receive one of the rings in the catalog.

Dr. McCarthy said he told her she would receive an implant of this type.

She was readmitted to the Northwestern hospital in 2007. That spring she told Dr. Rajamannan, who was following her case, that she hadn’t signed a consent form specifically for Dr. McCarthy’s device.

Ms. Vlahoulis did sign two forms approving the surgery in general and allowing the results to be used for research. Northwestern has said those forms amount to informed consent for use of the device.

Dr. Rajamannan learned that Northwestern hadn’t convened an institutional review board, an oversight panel required whenever patients are being given experimental medicines or devices. She says she asked Dr. McCarthy why he was conducting a clinical trial without patient consent. The collaboration between Drs. McCarthy and Rajamannan fell apart.

Dr. McCarthy says it is common for surgeons to try out tweaks to devices without going through the whole clinical-trial process. Asked whether he thought he should have asked for a review board, he said: “Not even remotely.”

The university says it didn’t convene a review board or ask for special patient consent because there was no clinical trial.

Dr. Rajamannan says she believes the use of the ring did represent a clinical trial. She says Dr. McCarthy should have told patients that he was implanting an unproven device on which he was making money.

Dr. McCarthy says he consults for Edwards but royalties from the Myxo ring go to a Chicago food bank.

Dr. Rajamannan’s accusations put the university administration on the spot. The chairman of the cardiology division separated Dr. Rajamannan from duties involving Dr. McCarthy’s surgery patients, she says.

The university legal office and Dr. McCarthy scrambled to get reassurance from Edwards Lifesciences that the FDA had authorized use of the Myxo ring. In September 2007, Edwards responded that the ring had been “marketed in the U.S. since March 2006″ pursuant to the FDA’s 1997 guidelines. The company also stated it wasn’t an experimental device.

Toni Vlahoulis claims a medical device, the Myxo heart-valve ring, damaged her heart. Ms. Vlahoulis had to have her Myxo ring “explanted” — taken out — at the Cleveland Clinic. In spring 2008, she sued Dr. McCarthy, Edwards and the university in Cook County Circuit Court, claiming the ring worsened her heart-valve problem.

Dr. McCarthy, Edwards Lifesciences and lawyers for the hospital maintain that the ring is safe. Dr. McCarthy says he sympathizes with Ms. Vlahoulis but adds, “I can’t wait to get to court” to explain his decisions.

Ms. Vlahoulis and Dr. Rajamannan are both represented by the same lawyer, a friend of Dr. Rajamannan’s who attended Notre Dame with her more than 20 years ago.

Of the more than 150 implants of the Myxo ring so far, Ms. Vlahoulis is one of only two patients known to have sued. A separate lawsuit filed by another patient in the same court alleges that the ring damaged a coronary artery and caused a heart attack during surgery. Edwards, the hospital and Dr. McCarthy declined to comment on the litigation.

In the summer of 2008, the medical-journal article Dr. McCarthy had been working on for two years was published in the Journal of Thoracic and Cardiovascular Surgery. Dr. Rajamannan’s name had been on an earlier version, but she pulled it from the final article, saying she didn’t want to be associated with his research.

In the article, Dr. McCarthy and collaborators wrote that they were describing their “initial experience with a new ring” — language cited by Dr. Rajamannan to suggest that Dr. McCarthy should have sought clinical-trial approval.

He says that wasn’t necessary. It’s “not a new shape,” he said in an interview. “We’ve been taking pre-existing [rings] and bending them for quite a while.” The Myxo ring doesn’t use new materials, and it doesn’t carry a risk of allergic reaction, Dr. McCarthy added.

Ms. Vlahoulis, the X-ray technician, saw the journal article. It said the Myxo ring worked in most cases, but mentioned one patient who required full replacement 13 months after surgery. Ms. Vlahoulis recognized herself.

The publication of such an article suggested that she had been part of a de facto research trial, says Ms. Vlahoulis. But “I never was asked,” she says. “I didn’t want to be a guinea pig.”

In an interview, Dr. McCarthy said the article wasn’t a clinical study but part of a database on heart-surgery results, and that patients gave consent to be in the database.

Ms. Vlahoulis emailed the FDA for information on the Myxo ring, which she couldn’t find on the agency’s Web site.

There was a reason for that. “We have not approved the McCarthy Myxoetlogix Annuloplasty Ring 5100 model,” an FDA official wrote back to Ms. Vlahoulis on July 30, 2008.

Ms. Vlahoulis contacted Dr. Rajamannan, who says she had assumed the device was FDA-approved. Dr. Rajamannan contacted the FDA, and says she also confronted Northwestern officials, whom she accused of failing to follow through on her allegations of a year earlier.

Another of Dr. Rajamannan’s lawyers sent Northwestern requests on the doctor’s behalf. They included the $2 million endowed chair for heart-valve research, apologies from Northwestern officials, the dismissal of some employees, staffing help for her laboratory’s mouse room, and $1 million to Dr. Rajamannan’s retirement account, according to letters reviewed by The Wall Street Journal.

Dr. Rajamannan confirms some details of her requests, but says she never asked for money “to shut me up.” At the time, Dr. Rajamannan says, she was fearful for her career because she was challenging one of Northwestern’s most important doctors, and because the university refused to meet with her on her allegations.

The university says it responded to Dr. Rajamannan and that it hasn’t agreed to her requests.

In mid-August 2008, the FDA contacted Edwards Lifesciences about the situation. In ensuing conferences, the FDA told Edwards that the company’s interpretation of the 1997 guidance document was “incorrect.” The alteration to the ring should have been flagged to the agency, FDA officials said.

The agency acknowledges that its guidance document is “not entirely clear.”

In October 2008, Edwards pulled the Myxo ring from the market and submitted an application to the agency for it under a new name. The company also filed an application for another valve ring Dr. McCarthy had invented, which had been available since 2003.

The agency retroactively approved both devices in April of this year under its 510(k) process, an abbreviated review for devices that are judged similar to existing products. Edwards says it returned the ring to the market. It costs between $2,500 and $4,000.

The compliance director of the FDA’s device division says Edwards acted in good faith and the agency “had no evidence of intent to mislead or deceive.” However, he said, “The next event could result in penalty.”

Bram Zuckerman, director of the FDA’s Division of Cardiovascular Devices, says the FDA is considering asking companies to contact the agency upfront if they plan to change devices. The review is part of a larger upheaval at the FDA under Commissioner Margaret Hamburg and her chief deputy, Joshua Sharfstein.

The head of the agency’s device division resigned in August and the next month the FDA released a scathing report about his actions in approving a knee device last December, citing a Wall Street Journal investigation of that issue.

The Senate has been investigating the Myxo ring since late last year, with Dr. Rajamannan’s assistance.

Dr. McCarthy, recently named director of Northwestern’s Bluhm Cardiovascular Institute, notes that he was vindicated in an investigation by Northwestern’s ethics office. Dr. Rajamannan says she would like her complaints vindicated as well, but is “very happy” continuing her research at Northwestern. She and Dr. McCarthy work in different buildings, and she says they don’t bump into each other.

The crisis is clear. Tenure and academic freedom are dying by a thousand cuts with the onslaught of non-tenure, non-tenure track contingent faculty. There is unfortunately in academia a tendency to overload simple concepts with a plethora of terms and phrases probably meant to exclude the general public from comprehension. The inclination to create a patois exclusivity to denote learning and impress colleagues with one’s intellectuality even infects activist faculty in their search for social justice for the roughly 1,000,000 contingent teachers in higher education in the United States of America.

Contingent Faculty: This refers to college or university level teachers that are off the tenure track and are tenure ineligible. What that means is they are unable to secure a position leading to tenure. They may be full-time or less than full-time but are basically at-will employees.

At-will Employees This means that a teacher can be fired without cause. His or her position is generally no more secure than an office manager, a secretary, a custodian, a staff person or a director without tenure. They have absolutely no job security and this was the dominant kind of employment in academia before tenure was established beginning in 1915 with the formation of the American Association of University Professors. Contingent faculty have no academic freedom and are marginalised with a total absence of job security due to their being excluded from tenure-track positions. We are back to the future in which 70% of the professoriate (may be spelled professorate as well which refers to the higher-education teaching profession) are contingent. Only about 30% or so of the professorate are tenured or tenure-track.

Tenure-Track Positions: This refers to a teaching position that leads to a tenure decision generally in one’s sixth year of service and beginning, if successful, with one’s eighth year of service. Tenure is an obligation on the part of the university to issue annual contracts until retirement. Tenured faculty have academic freedom, although few exercise it with daring, courageous pedagogy or research, and can be dismissed only for cause. It is not a guarantee of life-time career employment but it usually results in that since the probationary period has ended and the burden for termination rests solely with the administration.

Probationary Faculty: This simply means one is on probation. One is evaluated in a summative manner (leading to decisions on fitness) throughout this period. The term is somewhat harsh but bascially is confined to the period from an initial hire to the decision to grant or not grant tenure. It is usually six years in duration although it may be shorter and longer but the accepted norm is six years. A tenure decision is made during that year. If granted the seventh year is no longer probationary as one, if successful, is subject to dismissal only for cause before the actual tenure kicks in the eighth year. There has to be a year’s notice if tenure is denied so that is why the decision is made in the sixth year.

Adjunct Faculty: This term which I think is demeaning but we are stuck with it is the most common form of contingency and job description in higher education. It usually refers to part-time labour in the academy (the term refers to higher education not to a military or other specific institution). They are usually paid per course and the most exploited in higher education. Generally, they have no offices, no office hours, no online university access, no campus mailbox, no rights that other faculty have and are frequently without health care, pension and other benefits. About 50% of teachers in higher education are in this group–NOTE almost half based on recent Department of Education data at 48%. It is certainly not less now.

Academic Freedom: This basically refers to the rights of the professoriate to teach, publish and engage in extramural utterances without fear of retribution or sanctions. Extramural utterances are frequently used to describe some type of public advocacy: an op-ed, a letter to an editor, a speech, an interview, civil disobedience, a blog posting, a website that engages in advocacy. Academic freedom was formalized in the A.A.U.P. 1940 Statement of Principles on Academic Freedom and Tenure that has been endorsed by 100s of academic and other learned societies. Contingent labour don’t have this. They can’t since their jobs are at-will and there is no prospect of job security. While some probably do express themselves with candor, the degree of self-censorship is rampant out of fear that if they get bad course evaluations or upset a department chair or dean, then they will be fired. This is utterly at variance with the notion of quality education in this country in which students cannot be free if their professors are not.

Conversion from Contingency to Tenure: This refers to the beneficial and essential process in which a contingent position is converted to tenure-track. It could be a full-time contingent position or less than that.  It does elevate the position and require greater scrutiny for excellence and achievement which is what we want from those who walk into a classroom. It also removes the at-will nature of a slot and places it on the tenure-stream which could lead to tenure and the embellishment of academic freedom. Education is enhanced when the professorate is able to pursue the truth, engage in critical thinking, challenge student views, exercise rigour in the classroom, without fear of negative evaluation and termination leading to unemployment and catastrophic economic crisis.

As we witness the meteoric rise of contingent faculty in this country we need to ponder what the implications of this are on the quality of instruction and student outcomes. As a basic principle, if professors are not free, their students cannot be. Self-censorship, fear of job reprisals and the absence of job security are counterintuitive in seeking and expecting innovative and creative instruction.

Let us be clear and let us be direct. Contingent faculty are at-will employees as are support staff and custodial personnel. Their job security is basically non-existent in which they can be terminated for reasons other than cause: administratrive decisions to fund a position can be altered arbitrarily. Contingent faculty are not free to engage in courageous or robust critical thinking either in the classroom or outside of it. Contingent faculty must eat and support themselves and possibly others. Without job security, they must hedge and go along to get along.

They are indeed academia’s potential industrial reserve army. This term was used by Marx as capitalism was disintegrating to describe the majority of jobless, homeless, alienated labour that eventually acquires class consciousness and replaces the bourgeoisie during a proletarian rebellion. Many contingent faculties are moving toward unionization and organising to afford them some protection from the corporate university that mimicks business firms. There is a growing percentage of employees who are temps, without labour contracts and frequently benefits such as health care and pension plans. Contingent faculty are striking such as graduate assistants at the University of Illinois-Urbana-Champaign. At some institutions, yet all too few, they do have contracts and are organised in unions at such institutions as Illinois State University and Columbia College.

As the tenure/tenure-track pie continues to shrink, one sees academic freedom slowly becoming eviscerated as the power of administrators and tenured faculty to lord over contingency increases. Students need professors whose jobs are secure with a tenure system to buttress it. Only 30% or so of the professoriate in this country are tenure-line faculty. So tenure is becoming a rarity as the new majority is hired to provide “flexibility” for the corporate, all for profit, university.

Critical thinking cannot perdure if its thinkers and educators are timid and marginalised. Critical thinking and the pursuit of the truth are mere commencement and mission-statement propaganda when the institution’s “faculty” really includes only the tenure-stream component. It is immoral to expand contingency for financial purposes when the quality of education is inevitably and ineluctably damaged. Contingency must be contracted not expanded and used only in those circumstances when a full-time position would NEVER be suitable for a tenure-track person or when unexpected enrollment fluctuation requires short-term part-time adjuncts. The burden is on the administration and certain faculty to demonstrate that a full-time faculty appointment should be off the tenure track.

Revised: November 30, 2009

When Provost Wiseman came for her interview, I was struck by the following. Her commitment to social justice and her emphasising her ethical compass. She spoke about her efforts to represent pro bono death row inmates and how it felt to lose a client to the barbarity of state-sponsored executions. I was struck when she described the surreal experience of visiting a client on death row and then returning to her constitutional law class on a Monday. Chris Wiseman was emotional and addressed her failure to save her clients’ lives.

I spoke to that point and said, “It’s society that executes and makes the decision to kill people in this manner. You are part of the solution to stop capital punishment and should construe yourself not as a failure but as an advocate for change and social justice.” I was stupefied, frankly, at this candor on the part of Wiseman and her decision to display her values and ethics as the gateway into her character and capacity to lead.

I had never witnessed a presidential candidate eschew so emphatically the patois of administrationese and address issues of social concern so directly and forthrightly in an open forum with faculty. I felt then and I believe now that Chris brings a value system and an ethical commitment that augurs well for the future growth of the university as both an “institution” and a university that matters as it affects progressive change and critical thinking. For too long some Catholic institutions of higher learning have not been catholic enough: perhaps “our time has come.”

She will assume the presidency in June 2010. Doctor Angela Durante, provost, will serve as interim beginning December 1–my birthday! She follows Doctor Judith A. Dwyer, a strong advocate for academic freedom and shared governance. I am confident and hopeful that President-designate Wiseman will continue that tradition as we search for the truth within a broader societal context that is not always receptive to such inquiry.

These are undated photos of former Air Force cadet, now presumably officer Robert Kurpiel, a graduate of the Air Force Academy in 2006. The falcon is the mascot of A.F.A. and it appears he is a falconer or engaged in some type of bird-training activity. Note the protective guard over his hand and forearm.

The cadet sent me an e-mail on October 31, 2002 soliciting support, publicity and attendance at an “Academic Assembly” event at the Colorado Springs institution. I responded with a robust, anti-war, denunciation of the military and the cadet. This, otherwise protected speech under the Constitution, was widely circulated and I became a centerpiece in the culture wars. This led to a Veterans Day suspension and subsequent three-year reprimand by Air Force veteran Richard Yanikoski, former president of St Xavier University and president until August 2010 of the Association of Catholic Colleges and Universities. If only he were a pacifist like me!!

This was one of the more highly publicised academic freedom cases of the current century in which The Wall Street Journal editorialised frequently for sanctions. It was covered by the Weekly Standard and major academic freedom organisations such as the Foundation for Individual Rights in Education defended my rights and protected my career.

Since this event transpired seven years ago today, I have increasingly involved myself in academic freedom activities. I was elected to the Illinois Council of the state conference of the American Association of University Professors. I was then elected vice-president and recently appointed chair of Committee A on Academic Freedom and Tenure.

I published two items in the last two months related to academic freedom. One is a book chapter, “Challenges to Academic Freedom Since 9/11,” in Matthew Morgan, ed., The Impact of 9/11 and the New Legal Landscape: The Day That Changed Everything (Palgrave Macmillan, 2009), 57-74 on the topic. The other has just been released that is an article on academic freedom that appears  in Roger Chapman, ed., Encyclopedia of the Culture Wars, M.E. Sharpe Press, 2009, Vol 1, 5-7. Every book chapter, every scholarly article, every lecture, every op-ed that I have written on the topic of academic freedom includes some reference to my case.

I hope at this point Officer Kurpiel is doing well and that he learned too from the incident. I have previosuly published additional e-mail he and I exchanged subsequent to our initial exchange that by all accounts should have ended this controversy and was indeed told by Dr Yanikoski that it had. Yet as the thunder of the right began to blow heavy on our campus, principles became swamped by short-term pragmatic decisions to “save the institution” but a counter-thunder that will not be silenced emerged from the ashes of the inquisition.

I can report that since the departure of Dr Yanikoski on October 1, 2003, the situation on campus both personally and institutionally has become considerably more supportive of critical thinking, controversial speech and academic freedom. The test of academic leadership is not its support of academic freedom in irenic times but when controversy emerges and institutional pressures are mounting. That is the time when long-term visionary concerns needs to be balanced against the constraints of the present. Faculty also have responsiblities to exercise academic freedom within parameters and not abuse the trust their position confers upon them. The issue of punishment, of sanctions, however, raises the issue to a more distinct level of responsiblity. Speech, even controversial, inflammatory speech is best countered by more speech, by more debate and not by silencing speech which eviscerates the pursuit of the truth and stymies critical thinking.

November 6, 2009

SXU professor publishes encyclopedia articles

Peter N. Kirstein, Ph.D., professor of history, published two articles in the just released, Culture Wars: An Encyclopedia of Issues, Voices, and Viewpoints by Roger Chapman, editor, M.E. Sharpe Press, 2009. Kirstein’s articles are on the topics of “J. Robert Oppenheimer,” the physicist who directed the atomic bomb project at Los Alamos and “Academic Freedom” as a developmental concept beginning in Europe in the 18th century at the University of Göttingen.

The publisher describes the 800-page encyclopedia with the following:
Although openness and inclusion are cornerstones of life in the United States, intolerance and reactionary politics are also very real. Culture Wars addresses the key defining issues of contemporary American society through the lens of political and social controversy.

Featuring hundreds of A-Z entries and several photos, the set examines the history and relevance of the issues, events, controversies, personalities, groups and concepts that have contributed to the political and social polarization of American society over recent decades. It details hot-button topics as well as the role of the media in defining and shaping these issues; everything from abortion, the Christian Coalition, the environmental movement, feminism and gay rights, to illegal aliens, pornography, stem-cell research, Watergate and zero tolerance. A topic finder, bibliography and index add to the set’s utility.

November 6, 2009

SXU’s chapter of American Association of University Professors honors President Judith A. Dwyer, Ph.D. with an award recognizing her contributions to the chapter and to academic freedom on Nov. 4 in Rubloff Hall.

Under A.A.U.P. sponsorship, Dwyer has addressed the University community on a semi-annual basis for several years to enhance shared governance and academic freedom, which has been instrumental in directly discussing major issues of concern within the University.

Peter Kirstein, Ph.D., professor of history and vice president of the American Association of University Professors, Ill., said Dwyer has taken significant steps to ensure the academic freedom of those seeking to bring visiting speakers to campus, and defending the right to host controversial events on campus despite external protest.

“President Dwyer has intervened in some personnel matters that demonstrated courage and a commitment to due process and academic freedom,” said Kirstein. “The relationship between academic freedom and academic excellence is not always understood by university presidents. We have been fortunate to have a president that seeks the latter by protecting the former.”

I find it interesting that Ron Grossman would write an article sympathetic to academic freedom and due process. The Chicago Tribune reporter has a record of gratuitous, anti-Semitic baiting as evidenced in his unseemly review of  the transformative and courageous monograph of John Mearsheimer and Stephen Walt, The Israel Lobby. His review was an irresponsible and unprofessional act of ad hominems and cowardly accusations of anti-Semitism for daring to challenge the Israel Lobby and their unwarranted influence in American foreign relations. However, since these women have apparently not intruded into Mr Grossman’s nationalistic world view, they have escaped similar broadsides from his reckless and defamatory pen.

Students and faculty have marched in support of Melissa Bradshaw, a professor of women’s and gender studies who didn’t get tenure — higher education’s equivalent of a lifetime job guarantee.

Bradshaw is one of four faculty members who were rejected — because they are women, they say. Their attorney notes that of seven faculty members turned down for tenure this year out of 33 up for consideration, five were women (her clients plus one other who has chosen not to fight the decision).

Of 18 male professors who were candidates for tenure, 16 got it.

Friday afternoon, DePaul President Dennis Holtschneider notified each of the women by e-mail that he was denying their appeal to have their tenure decisions reversed. Two of the women, reached Friday by telephone, indicated that they intend to take DePaul to court, charging the university with gender discrimination.

Their supporters already had planned another sit-in. “We want the administration to know students aren’t happy about this, that it won’t go away,” said Chera Tribble, a senior who organized the marches and sit-in.

The university says it doesn’t condone gender discrimination. “Every faculty member seeking tenure is held to the same standards: scholarship, service and teaching,” said Denise Mattson, DePaul’s vice president for public relations.

Yet, in a report filed in September, a faculty task force found serious flaws in the way candidates for tenure are judged — leaving the door open for possible discrimination, Bradshaw’s supporters say.

Professors are initially evaluated by their departments and colleges — that is, by colleagues in the same field — but ultimately by a universitywide academic board. Under that system, the task force concluded, “the judgments and expertise of dozens of faculty are overturned by the majority of a small committee, most of whom may not have any expertise in the areas they are assessing.”

Unlike at other universities, the tenure review board at DePaul does not just defer to the judgment of a professor’s departmental colleagues. That board’s actions go to the president for a final decision.

In Bradshaw’s case, she got high marks from her own department. Recommending her for tenure, her dean wrote: “Dr. Bradshaw’s record as a teacher and educator has been exceptional.”

Others denied tenure had similarly glowing recommendations. Colleagues in the school of education wrote, as part of the tenure process, that Penny Silvers “demonstrates a strong record of teaching (and) is a consistently productive scholar.” Jennifer Holtz, whose field is online education, was praised by her dean who predicted, when she was being evaluated, that “she will contribute at the highest level for years to come.”

With those kinds of reviews, why were Holtz and the others rejected?

“In every tenure case, the final decision is one of balancing the various arguments for and against tenure,” Mattson said.

Lynne Bernabei, attorney for the four women, thinks a potential for bias is built into the system. She points to that final academic board.

“How does, say, a physics professor decide who is more deserving of tenure, someone in English or maybe engineering?” Bernabei said. “When there is no objective criteria, there’s a tendency to fall back on stereotypes.”

Bradshaw said she felt that when questioned by the tenure board. “They wanted to know how many men were in my classes,” she said. “You wouldn’t ask that of a male professor.”

Speakers at a recent campus protest suspected anti-gay feelings might be involved. Noting the university’s commitment to diversity, they asked how that could be squared with denying tenure to Bradshaw, a founder of DePaul’s minor in the Lesbian/Gay/Bi/Transgender/Queer Studies Program — an unusual, perhaps unique, offering for a Catholic university.

When Bradshaw and her three colleagues appealed their tenure denials via the university’s internal review system, the waters were muddied further.

The women’s appeals were heard by separate faculty boards, all of which found problems in the university’s process for awarding tenure. Two of the appeals boards concluded that, since the process was flawed, the women whose cases they had heard had been denied tenure wrongfully.

Yet the other two boards ruled that their subjects’ tenure denials were legitimate, despite the system’s flaws.

“I just don’t get it,” said Bradshaw. “My colleagues’ boards said that, since the process wasn’t fair, they should get tenure. My board agreed about the system’s faults. But I don’t get tenure?”

At least one of the four professors found a bittersweet silver lining in Friday’s letter from Holtschneider.

“I’m just glad my dad didn’t live to see this,” Holtz said. “He so strongly believed in what he thought DePaul stood for.”

DePaul University fired Dr Norman Finkelstein because of external forces that objected to his scholarship. He was clearly denied tenure for ideological reasons unrelated to his fitness as an academic seeking tenure and promotion. Dr Mehrene Larudee was also denied tenure for similar reasons although more subtly applied in the great DePaul purge of 2007. DePaul University has a unique system of tenure evaluation. In particular its Star Chamber, the University Board on Promotion and Tenure, is the university-wide tenure committee. Yet it does not report its findings to the applicant for tenure or promotion. It merely forwards them to the president, Rev. Dennis H. Holtschneider, C.M. It is the president’s prerogative to share or not the report with the candidate. This alone is an egregious violation of transparency and frankly odious in its lack of fairness and attention to due process.

I agree with Provost Epp that the U.B.P.T. need not rubber stamp lower unit assessment of a candidate: be it a department, programme or school/college. Clearly it has the right to exercise independent judgment but it must be accountable for that judgment. The provost does not even suggest an awareness of this problem and in fact ignores it completely. His basic argument is most problematic: A faculty member at DePaul can only appeal a case on so-called non-substantive grounds: either on academic freedom violations {as if that is not substantive!} or on some inadequate consideration of procedures as defined in the Faculty Handbook. The provost I am sure is aware that charges of discrimination, bias and unfair rendering of a decision on the granting of tenure is fair game in higher education and the courts are increasingly being used as a remedy for arbitrary, and non-transparent processes.

I am also gravely concerned about this statement by the DePaul University provost of the U.B.P.T. process of evaluation:

“This is a substantive review and it can only be done at the university level, where the strength of all of the tenure candidates’ applications are viewed against each other and the university-wide desired range of considerations listed above.”

I concur it is unexceptionable for a review committee to compare and contrast candidates. This could indeed enhance fairness but it should never be the charge of a university committee on tenure and promotion to engage in some type of ranking or comparative exercise. The charge is to apply clearly defined standards and not engage in possible academic “curving” or quotas as they assess a candidate pool. Maybe the provost did not mean to imply such an outcome but this curious statement should be challenged with vigour with a demand for greater clarity by the professorate at the Chicago university.

While I am the newly appointed chair of Committee A on Academic Freedom and Tenure of the Illinois Conference of the A.A.U.P.,  I am expressing my individual assessment of this matter.

MEMORANDUM

To:                    Phil Funk

Faculty Council President

From:                Helmut Epp

Subject:             Promotion and Tenure Appeals

Date:    September 11, 2009

I am writing this memorandum because I am aware that unsuccessful tenure applicants have appealed their tenure decisions on the grounds that the evaluation of the candidate was not in accord with the policies and procedures set out in the Faculty Handbook. I hope that it will provide the faculty Review Boards with additional guidance as they begin their work hearing faculty tenure appeals.

Introduction

The promotion and tenure process at DePaul is controlled by faculty to a degree that has remained unchanged over the past twenty years, and at a level that is unusual in higher education. The University Board on Promotion and Tenure consists of faculty members chosen by Faculty Council, and it is constructed so as to be representative of the university as a whole. As I have observed its work over the past four years, I have been impressed by the seriousness and conscientiousness of the members and by the thoughtful way they discuss each case.

Yet, the past few years have seen faculty letter-writing campaigns in response to some of the Board’s decisions that express a lack of confidence in the judgments of their peers. I am hopeful that the protests of a few will not adversely affect the integrity of the process, as the overwhelming majority of those outcomes are among the most favorable at any university. The promotion and tenure process is not meant to be a measure of a faculty member’s popularity. Rather, it is a neutral, critical evaluation of a faculty member’s scholarship, teaching, and service record. It has been my observation that the Board deliberates carefully before making any decision to grant or deny tenure.

Any faculty Review Board considering a faculty appeal of a negative tenure decision must look to the Faculty Handbook for guidance. I write this memorandum because I am concerned that unsuccessful tenure applicants may, through a selective reading of the Faculty Handbook, have an overly expansive view of the scope of a Review Board’s review of negative tenure decisions.^‘ Accordingly, I have

summarized below key aspects of the tenure procedures that, I believe, are often overlooked by faculty members appealing a negative decision. 1 would ask that all Review Board faculty members be made aware of these points before they begin their deliberations.

‘ Previously, on January 15, 2009, Father Holtschneider sent the Faculty Council a memorandum outlining his view on another common argument, that the Faculty Handbook requires notification to a tenure applicant when a lower level recommendation is reversed. I have attached that memorandum for your reference.

Key Provisions of the Faculty Handbook

1. 1. The Faculty Handbook Limits the Grounds for Appeal.

First and foremost, the Faculty Handbook specifically limits the grounds for appeal of a negative tenure decision to the following two procedural points: (1) that the faculty member’s academic freedom was violated by the dismissal itself; or (2) that the evaluation of the candidate was not in accord with the policies and procedures set out in the Faculty Handbook. (Separation, Appeal Procedure for Nonrenewal of Nontenured and Tenured Track Faculty.)

The Faculty Handbook explicitly prohibits a Review Board from revisiting the substantive tenure decision. Review Boards may not inquire into whether the process by which the decision was made applied inappropriate criteria or applied appropriate criteria unfairly or failed to meet reasonable standards of thoroughness. (Separation, Appeal Procedure for Nonrenewal of Nontenured and Tenured Track Faculty.) To do so would invite a Review Board to substitute its own decision for that of the Board. The Faculty Handbook does not allow for such a result. Nor should it. A tenure decision is the culmination of careful review and deliberation by faculty at every level of the university. Such a decision should not be overturned on substantive grounds by an ad hoc Review Board authorized only to review the record and ensure that the candidate enjoyed the benefits and protections of the Faculty Handbook processes.

Indeed, the Faculty Handbook appeal process is concerned only with protecting academic freedom and the integrity of the tenure review process. Unless a Review Board is convinced that academic freedom has been violated or that the procedures failed to follow the Faculty Handbook, it must accept and affirm the tenure decision.

2. The Burden of Proof Rests on the Complaining Faculty Member.

The Faculty Handbook also makes it clear that a decision to deny tenure stands unless a faculty member can establish a violation of either of the two points listed above. (Separation, Appeal Procedure for Nonrenewal of Nontenured and Tenured Track Faculty.) It is not enough for a complaining faculty member to make an argument that tenure could have been granted or that the faculty member made contributions to the university during his or her probationary period or that his or her scholarship is in some way significant or unique. Rather, the complaining faculty member must establish a violation of academic freedom or a violation of the policies and procedures set out in the Faculty Handbook.

It is important to remember that most tenure candidates come before the Board with – at a minimum – a plausible case for tenure. Every faculty member who completes the probationary period and secures the support of his or her department or school should be proud of these accomplishments. A denial of tenure is not a denial of those accomplishments. Rather, a denial of tenure reflects the university’s measured conclusion that, on balance, the candidate does not have a record of scholarship, teaching, and service sufficient to warrant a lifetime, tenured association with DePaul University. In some cases, reasonable minds may differ as to whether the standard has been met. But it is not up to the Review Boards to assess whether the correct decision was made. The Review Boards can only determine if a complaining faculty member has met the burden of establishing a violation of academic freedom or a violation of the Faculty Handbook.

3. The Faculty Handbook Authorizes the Board to Evaluate Tenure Candidates.

A common argument made on appeal is that the Board substituted its own judgment for that of the sponsoring department or school. This type of argument goes to the very heart of the substantive tenure decision. As described above, the Faculty Handbook does not allow a tenure decision to be reversed on appeal simply because a Review Board may disagree with the decision. Indeed, the argument that the Board improperly substituted its own judgment incorrectly suggests that the Faculty Handbook precludes the Board from conducting a substantive review of the candidates’ applications. The Faculty Handbook language repeatedly makes it clear that this is not the case.

First, the definition and charge of the Board in the Faculty Handbook make it clear that the Board is expected not only to review the lower level reviews and recommendations, but also to apply university-level standards and make independent evaluations of the tenure candidates. The Faculty Handbook specifically states that the Board shall have the following responsibilities:

to apply current university-wide standards and criteria for tenure and promotion;

1. to review: a) the candidates’ application and supporting materials, b) recommendation from prior levels, and c) the application of departmental and/or college criteria to the candidate;
2. to recommend action for tenure and/or promotion of the candidate;
   1. to review college/school guidelines and criteria to ensure consistency with stated university expectations as well as reasonable application of these criteria to the evaluation of faculty members.

(Evaluation of Faculty, Procedures and Timetable for Promotion and Tenure, University Board on Faculty Promotion and Tenure.)

The Faculty Handbook explicitly authorizes the Board to apply university-wide standards and criteria for tenure and promotion. This responsibility is separate and apart from the Board’s obligation to review lower level recommendations and the application of lower level criteria. Such an express grant of authority contradicts any argument that the Faculty Handbook limits the Board to reviewing the lower level recommendations.

Second, the Faculty Handbook specifically authorizes each level of review, including the university level, to review critically the lower level decisions. It states that each level “shall consider the method and care of application of the approved standards by the lower level unit(s), including matters of stringency, consistency, and fairness, in addition to any unusual implications the decision may have at the college/school or university level.” (Evaluation of Faculty, Promotion and Tenure Review, General Criteria.) This section makes it clear that subsequent levels may evaluate a candidate’s application both (1) to assess the application of standards by the lower level, and (2) to assess the decision itself at the higher levels.

Moreover, the Faculty Handbook states that the higher level may make their own application of the lower level substantive criteria only when the lower level decisions are deficient in significant respect, such as in matters of stringency, consistency, and fairness. However, the Faculty Handbook places no similar limits on the higher level when assessing the unusual implications the decision may have at the college/school or university level. (Evaluation of Faculty, Promotion and Tenure Review, General Criteria.) Nothing in this language precludes higher levels from both reviewing the prior level decision and making a decision based on higher level concerns and considerations. Indeed, this is entirely consistent with the Board’s separate authority to apply university-wide standards and criteria for tenure and promotion.

Third, the Faculty Handbook details the factors the Board should consider when conducting its substantive review of a candidate’s application. It charges the Board with deliberating and considering the desired range of:

• combinations of teaching and learning; scholarship, research, and/or other creative activities; and service,
• the variety of roles through which faculty members serve the institution,
• the differing needs of the individual units,
• the institutional demands made on faculty, and
• the varying levels of support available to faculty members in different units for these various activities.

(Evaluation of Faculty, Promotion and Tenure Review, General Criteria.)

The university-level review thus clearly contemplates that the Board assess a candidate’s scholarship, teaching, and service. Although the Faculty Handbook does state that the tenure candidate’s peers are assumed to represent the university’s best expertise in the relevant academic field, it also characterizes this evaluation as “initial” and “basic.” (Evaluation of Faculty, Promotion and Tenure Review, General Criteria.) The Faculty Handbook requires that the university level review go beyond this initial and basic evaluation and “project the probable future performance of the faculty member in these areas as indicated by accomplishments and efforts during the probationary years.” (Evaluation of Faculty, Promotion and Tenure Review, General Criteria.) This is a substantive review and it can only be done at the university level, where the strength of all of the tenure candidates’ applications are viewed against each other and the university-wide desired range of considerations listed above.

Simply put, the frequently repeated suggestion that the Board may not overturn lower levels on questions of scholarship, teaching, or service cannot be reconciled with clear language in the Faculty Handbook. The university-level review includes the application of current university-wide standards and criteria for promotion and tenure.

Conclusion

If the Board overturns a lower level decision, it may be because the Board found flaws in the method and care of application of the approved standards by the lower level unit(s), including matters of stringency, consistency, and fairness, or because the candidate did not meet university-wide standards and criteria for promotion and tenure, or both. A faculty member who has been denied tenure cannot reverse that decision simply by arguing that the “wrong” result was reached at any level – department, college/school, or university. Rather, the faculty member must establish a violation of the policies and procedures set out in the Faculty Handbook. As the above discussion demonstrates, nothing in the Faculty Handbook precludes a substantive review of the tenure candidates’ scholarship, teaching, and service at the university level. And nothing in the Faculty Handbook requires that the Board accept without question the lower level recommendation. To the contrary, it requires a critical review of the lower level and an independent substantive recommendation at the higher level. Accordingly, an unsuccessful tenure applicant may not successfully base an appeal on the contention that the Faculty Handbook was violated because the school/college or university-level reviews reached a different result than the lower level review. Rather, an unsuccessful tenure applicant must present facts demonstrating that tenure process steps and procedures listed in the Faculty Handbook were not followed. This is a matter of process, not of end result.

I received this complaint from an attorney working on this case in North Carolina. Dr Ginsberg had shown a film on the Palestinian suffering and conducted a discussion afterward that enraged her superiors and led to her dismissal in 2008. This purge and ideological cleansing represented an unseemly denial of First Amendment rights and an abridgment of her academic freedom. It also is another assault on the students who are denied the opportunity to engage in critical thinking and comprehension of the sufferings in the Middle East.

STATE OF NORTH CAROLINA

COUNTY OF ORANGE

IN THE GENERAL COURT OF JUSTICE

SUPERIOR COURT DIVISION

FILE NO. _____________________

TERRI GINSBERG,)
Plaintiff,)           COMPLAINT)

v.                       (Jury Trial Demanded)

BOARD OF GOVERNORS

OF THE UNIVERSITY OF                           

NORTH CAROLINA ,     

Defendant. 

NOW COMES the Plaintiff, Terri Ginsberg (“Plaintiff”), complaining of the defendant, the Board of Governors of the University of North Carolina (“Defendant”), as follows:

Introduction

1. This is a direct constitutional claim based in North Carolina common law alleging freedom of speech violations, employment discrimination based on religion and national origin, and retaliation for Plaintiff’s exercise of her right to freedom of speech and for her complaints about discrimination.
2. Plaintiff’s Complaint is brought pursuant to Article I, Sections 1, 13, 14, and 19 of the North Carolina State Constitution.
3. Plaintiff seeks declaratory and injunctive relief as well as compensatory damages.

Parties and Jurisdiction

1. Jurisdiction of this Court is proper pursuant to N.C. Gen. Stat. §§ 7A-240 and 7A-243.
2. Venue of this Court is proper pursuant to N.C. Gen. Stat. §§ 1-79 and 1-82.
3. Plaintiff is a citizen and resident of New York, New York, and a former employee of North Carolina State University, a constituent institution of Defendant.
4. Defendant is a corporate body subject to suit pursuant to N.C. Gen. Stat. § 116-3.  Defendant’s principal place of business is located in Orange County, North Carolina.
5. Plaintiff has exhausted her administrative remedies and complied fully with all prerequisites to jurisdiction in this Court.

Factual Allegations

1. Introduction:  The actions of which Plaintiff complains herein were taken because of Plaintiff’s religious identity, in retaliation for her complaints of discrimination, and in order to suppress her statements and characterizations with respect to the Israeli-Palestinian conflict.  Plaintiff herein challenges punitive actions that Defendant imposed on her solely because of her statements, and its subsequent failure to remedy those punitive actions despite being given ample opportunity to do so.

A. Activities taken during the course of Plaintiff’s employment

1. Plaintiff is a Jewish professor who began working at North Carolina State University on August 16, 2007 as a Teaching Assistant Professor (“TAP”) “for a one-year term . . . with the possibility of renewal.”
2. Defendant stated in its February 29, 2007 addendum its offer letter, “Your appointment to this position is subject to the Constitution and laws of the United States and the State of North Carolina . . . .”
3. In December of 2006, during Plaintiff’s interview for the TAP position, Dr. Antony Harrison, Chair of the English Department, Dr. Marsha Orgeron, Assistant Professor and Director of Film Studies, and Dr. Devin Orgeron, Assistant Professor of Film Studies, informed Plaintiff that the Department planned to advertise for a tenure-track Assistant Professor of Film Studies position that was to begin in the fall semester of 2008.   They strongly encouraged Plaintiff to apply for the position.
4. At the beginning of the fall semester of 2007, Dr. Akram Khater, Director of the Middle East Studies Program, also strongly encouraged Plaintiff to apply for the tenure-track position.
5. At all times relevant herein, Plaintiff performed her job at a level that met or exceeded Defendant’s legitimate expectations.
6. On information and belief, Dr. Marsha Orgeron is Jewish and of American national origin, Dr. Devin Orgeron is Christian and of American national origin, Dr. Akram Khater is Mormon and of Lebanese national origin, and Dr. Antony Harrison is Christian and of American national origin.
7. Dr. Marsha Orgeron, Dr. Khater and Dr. Harrison were hostile to Plaintiff’s political views, and believed that as a Jewish American, Plaintiff should not espouse, teach or communicate views that they interpreted as being sympathetic to Palestinian or Muslim perspectives.  In their view, Jews who question and challenge the Zionist colonial project are non-conforming Jews, and therefore are outsiders and dangerous.  Similarly, Drs. Orgeron, Orgeron, Khater and Harrison were hostile to anti-Zionist Arabs and Muslims, whom they also view as undesirable and threatening to their worldviews.
8. During her employment by Defendant, Plaintiff articulated and presented Arab, Muslim, Iranian, Palestinian, and alternative Jewish perspectives and critiques on U.S. and Israeli policy in Europe and the Middle East.  Drs. Orgeron, Orgeron, Khater and Harrison considered Plaintiff’s alternative Jewish perspective to be anti-Jewish and inappropriate for a Jewish professor.
9. On October 30, 2007 Dr. Marsha Orgeron issued a teaching evaluation which praised Plaintiff’s pedagogy but criticized her choice of materials, despite the fact that choice of materials was not one of the criteria Dr. Marsha Orgeron was qualified or authorized to evaluate.
10. Specifically, Dr. Marsha Orgeron suggested the exclusion of an interview with the author of a book whose contents she described as “controversial” and “radical.”
11. Dr. Orgeron also questioned Plaintiff’s decision to include a short film that presented documentary images of Palestine and asked critical questions about Israel’s treatment of Palestinians.
12. On information and belief, similarly situated individuals who do not share Plaintiff’s religion and point of view, or belong to religious and national groups about which she was speaking, were not evaluated similarly.  On information and belief, Dr. Marsha Orgeron criticized Plaintiff’s choice of teaching materials because she espoused personal political beliefs that led her to dislike or disagree with the points of view the materials expressed.
13. In violation of NC State University Regulation 05.20.10.6.3, Dr. Marsha Orgeron, without first discussing the evaluation with Plaintiff or obtaining her signature, submitted the evaluation to Dr. Harrison, the individual who subsequently approved two of the employment decisions complained of herein.
14. On November 9, 2007 Dr. Khater asked Plaintiff to resign from the Middle Eastern screening series because he deemed a point of view she expressed during her introduction to a film presented at an on-campus presentation to be “pro-Palestinian.”  Plaintiff was also excluded from curating other Film Studies Program activities, despite the fact that she was highly qualified to do so, and despite the fact that curating such programs was one of her job requirements.
15. Also on November 9, 2007, Dr. Khater verbally admonished Plaintiff for having e-mailed him a request for travel reimbursement for a guest speaker of Syrian/Muslim background which had previously been improperly denied.  The speaker had given a well-attended campus presentation about Orientalism in American culture on October 18, 2007 in conjunction with the Middle Eastern screening series.  Defendant never issued the speaker the travel reimbursement he was due, and Defendant deducted taxes from his honorarium despite his submission of proper papers showing exemption from such taxation.
16. In that meeting, Dr. Khater further admonished Plaintiff for having invited an Iranian filmmaker to the Middle Eastern screening series to present one of his short films, introduce an Iranian feature film, and speak afterwards on a panel of scholars about Middle Eastern cinema.  Dr. Khater, who had originally agreed to the invitation, subsequently reneged upon learning that the filmmaker was of Kurdish ethnicity.  Dr. Khater insisted that the short film was inappropriate for the series but supplied no explanation for his assertion.  The filmmaker did not receive his full travel/accommodations reimbursement from NCSU, despite his and Plaintiff’s repeated inquiries into the matter, until November 2008, approximately one year after his campus visit.
17. Beginning in November of 2007, Dr. Marsha Orgeron refused to purchase a majority of the visual materials Plaintiff had requested for her Spring 2008 course on cinema of the Israeli–Palestinian conflict.  The only films on that syllabus for which she agreed to place orders (that were not already owned by the Film Media Lab) were those directed by Zionist Jewish Israelis.
18. On information and belief, Dr. Marsha Orgeron did not refuse to order necessary equipment for similarly-situated colleagues who do not share Plaintiff’s religious background and academic viewpoint or who did not speak out in defense of individuals of Palestinian, Arab or Muslim national origin or religion.  Faculty who received full support in equipment and instruction material had a crucial advantage in their ability to adequately perform their teaching jobs.
19. On information and belief, Dr. Marsha Orgeron’s negative performance evaluation and refusal to order equipment for Dr. Ginsberg’s course, Dr. Khater’s admonishments relating to Plaintiff’s speech and the guest speakers, Dr. Khater’s instructions to Plaintiff to resign from the Middle Eastern screening series, and Defendant’s exclusion of  Plaintiff from curating Film Studies Program activities, stem directly from Defendant’s hostility to Dr. Ginsberg’s religious identity and point of view, as well as from its hostility to Dr. Ginsberg’s association or perceived association with individuals of Middle Eastern and Muslim descent and Middle-East-related organizations.

B. Non-reappointment and Failure to Hire

1. On information and belief, when Defendant hired Plaintiff, it intended to terminate Plaintiff’s TAP position in the fall of 2008 and instead hire her for a tenure-track position.
2. Before Plaintiff complained about discrimination and voiced opinions with which Defendant disagreed and which clashed with Defendant’s idea of appropriate Jewish viewpoints, Dr. Harrison, Dr. Khater, Dr. Orgeron and Dr. Orgeron had indicated to Plaintiff that she was a strong and favored contender for the tenure-track position.  Defendant also made several statements to Dr. Ginsberg implying that she would continue to be employed at Defendant the following year.
3. Plaintiff was not even granted an interview for the position, despite the fact that it is Defendant’s customary practice to grant interviews to internal candidates.
4. Plaintiff was not selected for a tenure-track Assistant Professor of Film Studies position that was to begin in the fall semester of 2008.
5. On information and belief, the selected candidate, Dr. Ora Gelley, who is Jewish, was selected in preference to Plaintiff because she had not published scholarly work or engaged in classroom speech that challenged Zionist policy in the Middle East, or that would be perceived to represent Palestinian, Iranian, Arab or Muslim, or alternative Jewish perspectives on those topics.  In fact, on information and belief, Dr. Gelley avoids discussion of Zionism in her scholarly work even when it is highly relevant to the issues she is discussing.
6. Plaintiff’s academic qualifications far exceeded those of Dr. Gelley.
7. Dr. Marsha Orgeron served as Chair of the search committee that rejected Plaintiff from the position.  Dr. Devin Orgeron also served as a member of the search committee.  Drs. Marsha and Devin Orgeron took Plaintiff’s religious identity, associations and expressed viewpoints into account during the search committee process.  Dr. Marsha Orgeron interfered with the search committee process to ensure Plaintiff was removed from consideration for the position.
8. On January 25, 2008, Plaintiff sent an electronic mail message to the Film Studies Search Committee asking why she had not been selected, and sent a copy of the message to Dr. Antony Harrison, Chair of the English Department.
9. On January 31, 2008, Dr. Harrison responded that “[t]he candidates who most closely matched the specific qualifications were selected for interview.”
10. On January 31, 2008, Plaintiff asked for further clarification, alleging that “the committee’s decision . . . was adopted pursuant to impermissible considerations.”  Dr. Harrison declined to provide further clarification.
11. On February 18, 2008, Dr. Harrison informed Plaintiff in writing that she would not be hired for the tenure-track Assistant Professor position in Film Studies, stating that “other applicants are a better match for our needs at this time.”
12. On March 24, 2008, Dr. Toby Parcel, Dean of the College of Humanities and Social Sciences, having previously met with Plaintiff to discuss the search committee’s decision not to hire her for the tenure-track position, communicated to Plaintiff that she found nothing improper in the search committee’s decision-making process.
13. On March 26, 2008, Plaintiff filed a grievance petition with James D. Martin, who, as Chair of the NCSU Faculty, was charged with administering grievance procedures.  She included in the petition allegations that Defendant had violated her constitutional rights.  At the advice of Dr. Martin, who had consulted with other employees and agents of Defendant, Plaintiff filed an amended petition on May 6, 2008 that excluded allegations about discrimination.
14. On April 10, 2008, Dr. Harrison informed Plaintiff that she would not be reappointed as a Teaching Assistant Professor for the 2008-2009 school year.  His stated reason for the non-reappointment was that the department’s “staffing needs for film courses next year have been met.”
15. Dr. Harrison failed to renew Plaintiff’s TAP contract because of the improper and discriminatory influence of Dr. Marsha Orgeron and Dr. Khater, and in retaliation for Plaintiff’s complaints about discrimination.
16. On June 17, 2008, Chancellor James L. Oblinger ruled that Plaintiff’s grievance could not continue, in part because Defendant did not have jurisdiction over Plaintiff’s grievance since Plaintiff was no longer employed at Defendant.  Chancellor Oblinger further stated that “the decision not to extend another contract at the expiration of an appointment is not grievable.”
17. The effect of Chancellor’s ruling is that TAPs have no adequate internal mechanism to grieve adverse employment actions that are based on prior discrete discriminatory acts.
18. On or about September 16, 2008, Plaintiff appealed the decision of Chancellor Oblinger to the Academic Affairs and Personnel Committee of the NCSU Board of Trustees.
19. On November 3, 2008, the Committee informed Plaintiff that it had affirmed the decision of Chancellor Oblinger.
20. On December 5, 2008, Plaintiff filed a Petition for a Contested Case Hearing in the Office of Administrative Hearings, appealing the dismissal of her grievance and alleging employment discrimination and retaliation, as well as violations of the North Carolina State Constitution.
21. On March 24, 2009, the Office of Administrative Hearings (“OAH”), on Defendant’s motion, dismissed the petition with prejudice on the basis that the OAH lacked subject matter jurisdiction, because teaching faculty of the UNC system are exempt from the contested case provisions of the State Personnel Act.
22. Accordingly, Plaintiff has no non-constitutional remedy under state law for the deprivation of her constitutional rights.

CAUSE OF ACTION: VIOLATION OF PLAINTIFF’S RIGHTS

TO FREEDOM OF SPEECH, RELIGIOUS LIBERTY AND EQUAL PROTECTION

1. Plaintiff realleges and incorporates by reference paragraphs 1 through 50 of this Complaint.
2. Defendant’s actions as alleged herein constitute violations of the freedom of speech provision of the North Carolina State Constitution.  NC Const. art. I, § 14.
3. Defendant’s actions as alleged herein constitute violations of Plaintiff’s rights of conscience, as guaranteed by the North Carolina State Constitution.  NC Const. art. I, § 13.
4. Defendant’s actions as alleged herein constitute violations of the right to equal protection as guaranteed by the North Carolina State Constitution.  NC Const. art. I, §§ 1, 19.
5. Plaintiff has suffered lost wages in an amount exceeding $10,000 as a proximate result of Defendant’s conduct as alleged herein.
6. Plaintiff has suffered mental and emotional distress, and other damages in an amount exceeding $10,000 as a proximate result of Defendants’ conduct alleged herein.

Prayer for Relief

WHEREFORE, Plaintiff respectfully requests the following relief:

1. That all matters so triable be tried by a jury.
2. That the Court declare that the acts and practices complained of herein are in violation of Sections I, XIII, XIV and XIX of Article I of the North Carolina State Constitution.
3. That Plaintiff be granted compensatory damages in an amount exceeding $10,000.
4. That the Court award Plaintiff reasonable attorney’s fees.
5. That the Court direct Defendants to pay Plaintiff such interest as may be allowed by law.
6. That the Court order such other relief as law and justice allow.

This the _____ day of October, 2009.

___________________________________

Caitlyn T. Fulghum

Attorney for Plaintiff

100 East Parrish Street, Suite 300

Durham, NC 27701

(919) 680-6100

VERIFICATION

TERRI GINSBERG, having affirmed or been sworn, states that she is the Plaintiff in this action, that she has read the foregoing Complaint, and knows the contents thereof, that the same is true of her own knowledge, save and except those matters and things therein stated upon information and belief and, as to those, she believes them to be true.

_____________________________________

Terri Ginsberg

Affirmed or sworn to and subscribed before me

This the _____ day of October, 2009.

__________________________________

Notary Public

My Commission expires:  _____________________________

This paper was presented at the Associated Colleges of the Chicago Area (ACCA) Symposium on Pedagogy at  Lewis University, October 17, 2009. The proposal was submitted prior to its publication which appeared a few weeks before the conference.* It also includes transgressions and assaults from other opponents of progressive exchange in the classroom such as Daniel Pipes’s conformist Campus Watch and the noted conservative editor and author David Horowitz.

During war, American democracy is imperiled less by external threats than by demands for internal conformity that restrict free speech. Despite the mythic belief that America’s wars extend democracy and preserve civil liberties, they frequently are accompanied by rampant nationalism that dehumanizes the enemy and demands reverential patriotism. “War is the health of the state” was the sardonic observation of essayist and progressive intellectual Randolph Bourne during World War I when ruling elites maximized their power  by seeking total allegiance to the state.[1] Columbia University President Nicholas Murray Butler abolished academic freedom on his campus in 1917 during the Great War when he issued at commencement a “warning to any among us … who are not with whole heart and mind and strength committed to fight with us to make the whole world safe for democracy.”[2] Edward Bemis may have been the first professor dismissed for extramural activities while teaching at the University of Chicago. He tried to mediate an end to the epic Pullman Strike in 1894. Scott Nearing, an economist at the University of Pennsylvania, became the first fired progressive professor for opposing child labor in the coal mines in 1915.[3] Supporting antiwar and internationalist activism have replaced antiestablishment economic advocacy as the most likely to unleash challenges  to academic freedom.

During the height of cold-war McCarthyism from 1952 to 1954, nationalistic show trials and suppression of dissent was notorious when hundreds of academics were fired for resisting congressional inquiries into alleged Communist Party affiliation. First Amendment and Fifth Amendment efforts to avoid self-incrimination were disallowed by this crusade for militant anticommunism. Thirty-seven presidents from leading universities issued a statement disparaging the “fitness” of any professor unwilling to report or silence alleged communists or opponents of the cold war. Also, hundreds of secondary-school teachers were purged after a “local loyalty probe” or following testimony before the House Un-American Activities Committee.[4]

Academic freedom is defined by the landmark American Association of University Professors “1940 Statement of Principles on Academic Freedom and Tenure.” Academic freedom gives professors the right to pursue research and publish its results; academicians have “freedom in the classroom” to determine their pedagogy. Instructors have the right to “speak and write as citizens …[and] should be free from institutional censorship or discipline.”[5] Professors should strive for accuracy, respect the opinions of others, and not claim to speak for their institution.[6] “A faculty member’s expression of opinion as a citizen cannot constitute grounds for dismissal unless it clearly demonstrates the faculty member’s unfitness to serve. Extramural utterances rarely bear upon the faculty member’s fitness for continuing service. …In a democratic society freedom of speech is an indispensable right of the citizen.”[7] In Keyishian v. Board of Regents, academic freedom was dramatically elevated by the Supreme Court to a quasi-constitutional right. Justice William J. Brennan, Jr. delivered the majority opinion:

Our Nation is deeply committed to safeguarding academic freedom which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. … The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth.[8]

While not as sweeping as Keyishian, Justice Lewis F. Powell, Jr. in Regents of the University of California v. Bakke reaffirmed “academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.” A university must have the “freedom… to make its own judgments as to education …”[9] Nevertheless since World War I, academic freedom has periodically been vulnerable to war’s conformist regimen and its attendant emphasis on ideological obedience.

The threat to academic freedom is multidimensional. Overt government repression, “departmental colleagues, university administrators, students, trustees, media pundits, organized campaigns by groups unrelated to the university and local politicians” attempt to police and regulate academic speech, teaching, and research.[10] Subsequent to September 11, 2001, there emerged a comprehensive campaign against academic freedom. The attacks on the Pentagon and World Trade Center, followed by the “Global War on Terror,” now called “Overseas Contingency Operation” by the Barack Obama administration, exacerbated the culture wars and unleashed organized crusades against critical thinking. At risk were academicians who denounced the Iraq war, questioned the innocence of America prior to the 9/11 attacks, and rejected U.S. support of Israel’s continued brutal occupation of Palestine and Syria’s Golan Heights.

Norman G. Finkelstein was an assistant professor of political science at DePaul University. He is a transformative, daring scholar who published The Holocaust Industry and Beyond Chutzpah: On the Misuse of Anti-Semitism and the Abuse of History.[11] Finkelstein claimed that elements of the Jewish community exploit the sufferings of the Holocaust to advance Israel’s geostrategic interests and gratuitously exaggerate the prevalence of anti-Semitism in order to deflect criticism from its forty-two year occupation of Palestinian land with its expanding settlement population. The son of Holocaust survivors, Finkelstein’s parents survived the Warsaw Ghetto and Nazi death camps during World War II.[12]

In Beyond Chutzpah, Finklestein relentlessly assails Alan M. Dershowitz’s The Case for Israel.[13] He claims the work is inaccurate, that Dershowitz disingenuously cites primary sources that were not consulted but instead lifted from other authors’ footnotes, and that the entire work is essentially derivative from the discredited scholarship of Joan Peters. Peters claimed erroneously an absence of a Palestinian presence in the areas from which Israel was created in 1948. The Case for Israel is dismissed. The book is portrayed as mere propaganda to justify Israel’s colonization of Palestine.[14] Dershowitz, Frankfurter Professor of Law at the Harvard Law School, attempted to prevent the University of California Press from publishing Beyond Chutzpah with a direct appeal to Governor Arnold Schwarzenegger and threatened defamation litigation if charges of plagiarism and nonauthorship of The Case for Israel were not redacted from the published text.[15] The governor’s office responded by informing Dershowitz that, “You have asked for the Governor’s assistance in preventing the publication of this book … [but] he is not inclined to otherwise exert influence in this case because of the clear, academic freedom issue it presents.”[16]

For almost two years Dershowitz tried to derail Finkelstein’s application for tenure and promotion through a sustained media blitz. Dershowitz used the Wall Street Journal, The Jerusalem Post, InsiderHigherEd.com, The New Republic online, FrontPageMag.com, his own website, and other venues to oppose the granting of tenure to the DePaul professor. Dershowitz referred to Finkelstein as an “anti-Semite,” his publications as “trash,” and called him a “neo-Nazi supporter, a Holocaust trivializer, and a liar … and … like a little worm.”[17] Political Science Professor Patrick Callahan requested on June 15, 2007 that Dershowitz share with the Political Science Department Personnel Committee more than 50 pages of allegations concerning Finkelstein’s putative academic misconduct. Callahan opposed granting tenure to Finkelstein and warned the Personnel Committee that if it did not consider the Dershowitz dossier, he would distribute it to the entire department.[18] Dershowitz eagerly complied and sent these j’accuse materials to the Department of Political Science and even the DePaul University College of Law faculty.

The twelve-member Liberal Arts and Sciences’ Faculty Governance Council decided on November 17, 2007 to send a letter to the president of Harvard University, the Harvard Law School dean, and DePaul University President Reverend Dennis H. Holtschneider. The Faculty Governance Council wanted their support in ending Dershowitz’s highly publicized intrusion into the proceedings of the university’s personnel-review process.[19] The Political Science department’s Personnel Committee unanimously rejected by 4-0 all charges of academic misconduct and dishonesty claimed by Alan Dershowitz, Daniel Jonah Goldhagen, and Peter Novick. The Department of Political Science recommended by a 9-3 majority the granting of tenure and promotion to associate professor. The five-person College of Liberal Arts and Sciences’ Personnel Committee voted unanimously for Finkelstein’s tenure and promotion. Callahan, a former department chair, Michael L. Mezey, the previous dean of the College of Liberal Arts and Sciences, and Jim Block submitted a minority report opposing Finklestein’s tenure.

The dean of the college, Chuck Suchar, rejected the departmental and college-level recommendations for promotion and tenure in a memorandum on March 22, 2007, which was first published in its entirety on my web log on April 5, 2007.[20] Suchar’s main argument in opposing Finkelstein receiving tenure was the tone and supposed lack of civility in his writings and interactions with colleagues. The dean’s outrageous claim that the professor lacked collegiality toward departmental colleagues was based upon a rumor from the “General Consul’s  [sic] office,” that Finkelstein “was considering filing a law suit” against those opposing his tenure.[21] The right to litigate and sue is an American right that should not be cited as a lack of collegiality to deny an academician tenure and promotion to associate professor.

He avers that “the tone and substance … [are] inconsistent with DePaul’s Vincentian values.” Suchar provides a single example from a huge body of published work to claim grave rhetorical misconduct: “My reading of Dr. Finkelstein’s work, especially The Holocaust Industry, where in one chapter alone Goldhagen, [Benny] Morris, [Elie] Wiesel, [Jerzy] Kosinski and many others are collectively attacked as ‘hoaxters and huxters,’ typifies his apparent penchant of reducing an argument and oppositional views to the inevitable personal and reputation damaging attack, demeaning those with whom he disagrees.”[22]

DePaul University is a Roman Catholic institution founded under the charism of the Vincentians, a priestly religious order. In The Holocaust Industry, the second chapter, pp. 39–78, is titled with correctly spelled words: “Hoaxers, Hucksters, and History.” This is in reference to Zionists who used the Holocaust to exaggerate Israel’s vulnerability and to extract excessive reparations from successor governments or financial institutions allegedly complicit with Germany during World War II.

Dershowitz’s compilation of alleged Finkelstein transgressions also contained this accusation: “Among the dozen or so Jewish writers whose careers Finkelstein has tried to destroy with the same accusations—‘fraud,’ ‘huxter,’ ‘shake-down artist,’ ‘plagiarist’—he has only ever written a full book about one other: Daniel Goldhagen”[23] (emphasis added). Suchar also misspelled “huckster” as “huxter.” It is arguable the DePaul University dean used Dershowitz’s misspelling of “huckster” and other egregious charges in compiling his anti-tenure memorandum.

The Finkelstein case became a cause célèbre that galvanized groups across the political spectrum. The Guardian, Haaretz, and The Jerusalem Post provided spacious coverage of the academic freedom controversy. [24] The Middle East Studies Association, the Illinois Conference of the American Association of University Professors (AAUP), and the DePaul Academic Freedom Committee wrote letters and conducted public fora in support of Finklestein. Opponents included neoconservatives and ardent supporters of an Israel-can-do-no-wrong policy.[25]

On May 11, 2007, DePaul’s University Board on Promotion and Tenure (UBPT) voted 4-3 against the granting of tenure to Norman Finkelstein. On June 8, 2007, Holtschneider announced that Finkelstein had been denied tenure and on September 5, 2007 a settlement was reached between the parties.[26] Mehrene E. Larudee, assistant professor of International Studies and director-designate of the International Studies Program, was an intrepid supporter of Finkelstein.[27] She was the only other probationary-faculty member in 2007 who was denied tenure in the College of Liberal Arts and Sciences. Unlike Finkelstein, Suchar recommended her for tenure and promotion but Larudee was still denied tenure by Holtschneider upon receiving a non-recommendation by the UBPT.[28]

Ideologically inspired interest groups that engaged the post–9/11 world in cold-war Manichaean terms of good (United States) versus evil (“Islamofascism”), have attempted to cleanse ideologically progressive internationalists from the academy. In September 2002, Daniel Pipes, director of the Middle East Forum, launched his “Campus Watch” website to blacklist and marginalize progressive Middle Eastern scholars who were described as fifth columnists, supporters of “radical Islam,” and apologists for terrorism. Middle East specialists who did not support Israel in its conflict with the stateless Palestinians were smeared with charges of ideologically distorted scholarship and displaying bias toward pro-Israel students. Pipes’s censorious campaign triggered a robust challenge when hundreds of nonspecialists demanded that their names be included alongside the Campus Watch blacklist. Pipes then published a companion list with a McCarthyism-invoking title, “Solidarity with the Apologists.”[29] Both lists were eventually removed from Pipes’s Campus Watch website.

In 2004, the David Project Center for Jewish Leadership produced an incendiary film, “Columbia Unbecoming,” that attacked Columbia University’s Middle East Asian Languages and Cultures Department as anti-Semitic and discriminatory against ideologically oppositional students. Although Columbia’s Barnard College anthropology Professor Nadia Abu El-Haj was granted tenure in the fall of 2007, her seminal monograph, Facts on the Ground: Archaeological Practice and Territorial Self-Fashioning in Israeli Society, generated websites, blogs, and online petitions that demanded her dismissal.[30] Her book instigated a propaganda campaign between Israel Firsters, who charged the book was fatally flawed and even anti-Semitic, and revisionists—who supported her critique of Israeli archeologists who politicized and extrapolated a dubious biblical claim to the territory of the current State of Israel.[31]

Like the Phoenix, a New McCarthyism has arisen as academicians are bullied and intimidated by highly partisan ideological-presssure groups. Thought police contributing to this recrudescence of a new age of conformity include NoIndoctrination.org, the American Council of Trustees and Alumni, founded by Lynn Cheney, David Horowitz Freedom Center, Horowitz’s Students for Academic Freedom, media pundit Laura Ingraham and Roger Kimball, editor and publisher of The New Criterion. Horowitz’s online magazine, FrontPageMag.com, engages in a relentless stream of vituperative attacks [32]against socially activist academics.[33]

His most daring book, The Professors: The 101 Most Dangerous Academics in America, attempts to identify the most radical and “un-American” scholars and is quite similar to the 1950 McCarthy-era Red Channels blacklist. Horowitz argues that social sciences and humanities faculties are riddled with disloyal professors who “spew violent anti-Americanism, preach anti-Semitism, and cheer on the killing of American soldiers and civilians.”[34] His most recent work, One Party Classroom, continues his allegation that professors have transformed traditional pedagogy into crusading Marxist and victim-emphasizing propaganda. Horowitz berates and mocks socially conscious instructors who offer courses in Peace Studies, Women Studies and race and ethnic discrimination. [35]

Such is the state of academic freedom in America today.

[2]. Robert Post, “The Structure of Academic Freedom,” in Academic Freedom after September 11, ed. Beshara Doumani (Brooklyn: Zone Books, 2006), 61. Somewhat ironically Butler shared the Nobel Peace Prize with Jane Addams in 1931.

[3]. Bertell Ollman, “The Ideal of Academic Freedom as the Ideology of Academic Repression, American Style,” 1, “Freedoms at Risk Conference,” New York University, February 23, 2008.

[4]. Ellen Schrecker, The Age of McCarthyism: A Brief History with Documents, 2nd ed. (New York: Bedford Books, 2002), 37–38.

[5]. “1940 Statement of Principles of Academic Freedom and Tenure,” A.A.U.P. Policy Documents and Reports,“Redbook,” 10th ed. (Baltimore: Johns Hopkins University Press, 2006), 3.

[6]. Ibid., 4.

[7]. “Committee A Statement on Extramural Utterances,” A.A.U.P. Policy Documents and Reports, “Redbook,” 9th ed. (Baltimore: Johns Hopkins University Press, 2001), 32.

[8]. Keyishian v. Board of Regents, 385 U.S. 589 DELETE, 603 (1967); Thomas L. Tedford and Dale A. Herbeck, Freedom of Speech in the United States, 5th ed. (State College, PA: Strata Publishing, 2005), 316–317.

[9]. Regents of the University of California v. Bakke, 438 U.S. 265 (1978).

[10]. Project of the Taskforce on Middle East Anthropology, “Academic Freedom and Professional Responsibility after 9/11 : A Handbook for Scholars and Teachers,” 2006, 4–5.

[11]. Norman G. Finkelstein, The Holocaust Industry: Reflections on the Exploitation of Human Suffering, 2nd ed. (New York: Verso Press, 2003); Norman G. Finkelstein, Beyond Chutzpah: On the Misuse of Anti-Semitism and the Abuse of History (Berkeley: University of California Press, 2005).

[12]. Patricia Cohen, “Outspoken Political Scientist Denied Tenure at DePaul,” New York Times, June 11, 2007.

[13]. Alan Dershowitz, The Case for Israel (Hoboken, NJ: John Wiley & Sons, 2003).

[14]. Joan Peters, From Time Immemorial (New York: Harper and Row, 1984).

[15]. Alan Dershowitz, “Tsuris over Chutzpah,” The Nation, August 29/September 5, 2005, 2.

[16]. Jon Weiner, “Weiner Replies,” The Nation, August 29/September 5, 2005, 2, 30.

[17]. Jeffrey Felshman, “Whose Holocaust Is It Anyway?: Why Alan Dershowitz Wants DePaul Professor Norman Finkelstein Fired,” Chicago Reader, August 26, 2005.

[18]. DePaul Political Science Department, “Personnel Committee,” November 1, 2006, http://english.sxu.edu/sites/kirstein/?p=696.

[19] Michal Lando, “Dershowitz, Finkelstein and a Bitter Tenure Battle,” Jerusalem Post, April 19, 2007, http://www.jpost.com/servlet/Satellite?apage=2&cid=1176152838045&pagename=JPost%2FJPArticle%2FShowFull ; Christopher Brown, “Academic Repression Update/A Question of Scholarship,” The Advocate (CUNY Graduate Center), May 4, 2007. http://gcadvocate.org/index.php?action=view&id=151.

[20]. Peter N. Kirstein blog: http://english.sxu.edu/sites/kirstein/?p=680.

[21]. Ibid.

[22]. Ibid., http://english.sxu.edu/sites/kirstein/?p=680;

[23]. Ibid., http://english.sxu.edu/sites/kirstein/?p=691.

[24]. http://www.guardian.co.uk/world/2007/jun/12/usa.highereducation; http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1176152838045; http://www.haaretz.com/hasen/spages/901583.html.

[25]. For opposition to the granting of tenure see Steven Plaut, “The Finkelstein Affair,” FrontPageMag.com, April 23, 2007, http://frontpagemag.com/Articles/Read.aspx?GUID=9B47A2C9-CA6B-43DE-9D09-970B2EE29405; Phrase “Israel-can-do-no-wrong policy” from Roger Cohen, “The Fierce Urgency of Peace,” New York Times, March 26, 2009.

[26]. http://sherman.depaul.edu/media/webapp/mrNews2.asp?NID=1655.

[28]. Sierra Millman, “DePaul Professor Who Supported Finkelstein Also Was Denied Tenure,” The Chronicle of Higher Education, June 12, 2007.

[29]. Colin Wright, “Editorial Introduction”; “Campus Watch: Surveying a Non-Apologetic Solidarity,” Situation Analysis 3 (Spring 2004): 1–20.

[30]. Jane Kramer, “The Petition: Israel, Palestine, and a Tenure Battle at Barnard,” New Yorker, April 14, 2008, 50–59.

[31]. “Israel Firster” term encountered on Tikun Olam blog, http://www.richardsilverstein.com/tikun_olam/.

[33]. Steven Plaut, “The Eviction of Norman Finkelstein,” FrontPageMag, May 29, 2008. Finkelstein’s denial of tenure is embraced and he is slandered as a “crackpot” and for supporting “Holocaust denial.” http://frontpagemag.com/Articles/Read.aspx?GUID=94D46D9E-C1E5-4CE9-99BF-7C1EF803CADA.

[34]. David Horowitz, The Professors: The 101 Most Dangerous Academics in America (Washington, DC: Regnery Publishing, 2006); Quotation is from inside cover. I was included among the 101 professors. See also David Horowitz, Indoctrination U (New York: Encounter Books, 2007).

[35]. David Horowitz, One-Party Classroom: How Radical Professors at America’s Top Colleges Indoctrinate Students and Undermine Our Democracy (New York: Crown Forum, 2009).

*These were excerpted from the recently published book chapter:  “Challenges to Academic Freedom Since 9/11,” in Matthew Morgan, ed., The Impact of 9/11 and the New Legal Landscape: The Day That Changed Everything (Palgrave Macmillan, 2009), 57-74.

I wrote this article that appears in the Fall 2009 issue of Academe, the award winning publication of the Illinois conference of the American Association of University Professors. It analyses the major sanction of suspension that is being applied too broadly in violation of numerous A.A.U.P. documents:

On university and college campuses there is occurring an ever increasing use of suspensions as a sanction against progressive faculty. The American Association of University Professors, while issuing reports on the topic, has not been proactive enough in asserting what its policy is and aggressively defending it. This results in repeated violations of punishment without appropriate due process.

What is frequently forgotten are the narrow and limited circumstances under which a faculty member can be suspended. Suspension from one’s faculty position is a major sanction that must never be unleashed due to external-public pressure on an academic institution. It must never eventuate from anger or an effort to suppress a professor’s free speech or academic freedom. Actually, suspensions, except for extraordinary cases of a threat to public safety, should not be a sanction at all if one evaluates critically the extant literature on this growing phenomenon.

Suspensions can only be meted out, “if immediate harm to the faculty member or others is threatened.” Some administrations use the term, “reassignment to other duties,” as a more charitable and evasive expression of a de facto suspension but that risible term is also explicitly included as encompassing the suspension regime. The A.A.U.P. Policy Documents and Reports, “Redbook,” 10th ed. (Baltimore: Johns Hopkins University Press, 2006) reiterates in numerous documents the specific and dramatic circumstances that may trigger a suspension in the United States. The documents are the ninth “1970 Interpretive Comment” of the “1940 Statement of Principles on Academic Freedom and Tenure,” the “1958 Statement on Procedural Standards in Faculty Dismissal Proceedings” and the revised 1999 “Recommended Institutional Regulations on Academic Freedom and Tenure.” While ironically, A.A.U.P. has issued numerous pronouncements on the parameters of such a sanction, it is certainly “soft law” which evades even A.A.U.P. Committee A scrutiny.

Suspensions for extramural utterances, controversial speech, research misconduct, antiwar e-mail, provocative and radical proclamations, alleged non-threatening misconduct and a host of other reasons are inappropriate. Suspensions and reassignments to other duties are frequently meted out without due process. Administrations without faculty input and without convoking a pre-sanction review committee are arbitrarily suspending faculty members. Even faculty units are also recommending suspensions without apparent knowledge of or disregard for A.A.U.P. regulations on this issue. Suspensions frequently serve either as an end or as stop-gap measures until a final resolution of the matter is determined.

Professor Sami al-Arian, a computer scientist at the University of South Florida, is approaching seven years as a political prisoner in the United States due to his race and political ideology in my opinion. Sami al-Arian, a Kuwaiti-born Palestinian, was fired from the University of South Florida by President Judy Lynn Genshaft on February 26, 2003, a mere six-days after a fifty-count indictment was handed down by a federal grand jury. It contained charges of terrorism and using the university as a front for materially supporting an alleged terrorist organization: Palestinian Islamic Jihad. A federal jury found him not guilty on many counts and was hung on several others in 2005. At various stages, culminating in Professor al-Arian’s dismissal, the University of South Florida used extremely questionable arguments and tactics to coerce a controversial and ethically outspoken tenured professor who had resided in the United States since 1975.

Al-Arian’s speech was labeled “disruptive.” President Genshaft accused al-Arian, with Orwellian doublespeak, of having “repeatedly abused his position.” He was denounced for not issuing a disclaimer that his remarks on television and other fora did not represent those of the university. Such a charge is usually selectively applied against speech an administration finds objectionable or embarrassing. Professors rarely claim to speak for an institution and are not required to issue self-effacing disclaimers whenever they speak, write an op-ed, publish an article, appear as a source in a news story and post a statement on the Internet. Certainly academicians who avoid controversy and who eschew social activism are NEVER required to issue formal disclaimers attendant to their speech.

Prior to being fired by the University of South Florida, al-Arian endured a de facto fourteen-month suspension—cloaked in the name of a paid leave of absence–imposed by then President Betty Castor, who later ran unsuccessfully as a Democrat for a Senate seat. This lengthy sanction exceeded any reasonable argumentation that resumption of his professional responsibilities posed any claimed threat of immediate harm. Universities cannot engage in a heckler’s veto and use the possibility of disruption caused by a faculty member’s exercise of free speech as an excuse to silence that speech. This is America that claims to defend free speech which is meaningless if it only permits non-provocative, non-challenging discourse.

Ward Churchill was fired by the University of Colorado in June 2006 and won a legal battle in a wrongful termination law suit that claimed the severance of his continuous tenure resulted from his “little Eichmanns” statements concerning the victims of the 9/11 attacks. However, Denver District Court Judge Larry Naves refused to reinstate the professor this past July.

What is forgotten, however, was that the tenured full-professor of ethnic studies was suspended and that the faculty was complicit in this action. One of the numerous university units that examined the professor’s writings to determine if research misconduct took place was the Privilege and Tenure Committee. While it did not recommend dismissal, they did recommend suspension as a major sanction without any evidence or even allegation that the professor was a threat to others or that retention of the professor’s full academic rights would cause “harm” in a physical and immediate sense to the university.

Even prior to his firing, Mr. Churchill was removed from the classroom for the entire 2006-2007 academic year in what amounted to a paid suspension. While I personally found much of his research antics to be beyond the pale: in particular his ghostwriting articles and then citing them as third-party sources for his works, due process must be enforced. The investigations into his academic writings was inspired by the failure of his critics to fire him for his 9/11 comments. Yet pending a final judgment on the merits of the University of Colorado’s charges against him, his suspension constituted a material violation of his rights under the First Amendment and numerous previously cited documents of the A.A.U.P.

While no one can reasonably argue that suspensions and reassignment to other duties should never be imposed, the proliferation of these major sanctions is troubling and represents a clear and present danger to academic freedom. Academicians need to be aware that as the tide of repression continues to accelerate in this nation, our students’ capacity to develop critical-thinking skills is gravely threatened and the closing of the American mind is at hand.

Peter N. Kirstein is professor of history at St. Xavier University and vice president of A.A.U.P.-Illinois Conference. He is the author of “Challenges to Academic Freedom Since 9/11,” in Matthew Morgan, ed., The Impact of 9/11 and The New Legal Landscape: The Day That Changed Everything (Palgrave Macmillan, 2009).

I rarely post items on pedagogy because I think professors should refrain from disseminating their pedagogical tactics. In a freer academic environment than the oppressive one currently obtaining in the United States, such would be welcomed but I would prefer we err on the side of modesty and not attempt to create templates of pedagogy which has over the decades educated little and resolved virtually nothing in the area of reform and critical thinking. However, due to this exchange, I can’t resist because of the rewarding comments and my own growth as a university professor.

The class is United States History 104: 1877 to Vietnam. I asked the student’s permission prior to a midterm examination if I could move  the scholar to a different seat. I was told reluctantly it was acceptable and I repeated the request for permission even after the switch and was again told reluctantly there was consent. I wanted to empower the student. I wanted to give this student the sense of control that is all too lacking in pedagogy.

Also email is part of the pedagogical process. Note how the student evolved from frustration to acceptance to spirited glee. I did not want to share the grade prior to returning the exams but I did so anyway due to the request. I did not want the person to return to the original location but gave the person the option which was then declined. The comments about me I will certainly treasure but they were unsolicited but an affirmation of my evolving from a strict to a more tolerant professor: not in the realm of ideas which I have always encouraged pluralism but in terms of logistics, class managment and the like.

“Rutherford B. Hayes” was the nineteenth president of the United States whose election as a Republican in 1876 was as fraudulent as Mr Bush’s in 2000. I gave a talk a few years ago at Ohio Wesleyan  University in Delaware, Ohio and went to his birthplace on East William Street: a plaque on a street next to a filling station is what remains.

—————————————————————————————-

From: Rutherford B Hayes [mailto: rbh@mymail.sxu.edu]

Sent: Fri 10/9/2009 3:58 PM

To: Kirstein, Peter N.

Subject: Seat Change

Sorry, at first I thought you were joking about me changing my seat. You do joke a great deal, which doesn’t bother me, not in the least. But then I realized that you were serious. It’s kind of odd to just pick me out of nowhere to change my seat. I was kind of wondering why exactly you need me to do such a thing. I was pretty content where I was sitting, which is why I sat there. Anyway, I think, with all due respect, I deserve a reason for my change of seat. I agreed to change my seat, but then I realized that I pay 23,000 a year to attend school there and I should be treated like an adult. If there is good reason, then no problem. I consider myself a good student, and I like to surround myself with other intelligent individuals. I enjoy my seat, I enjoy the people near me, and I’ve been there half a semester. I’m not trying to cause problems and I’m normally not confrontational, but if this class has taught me anything it’s that I should stand up for myself when I’m feeling short changed.

Thank you for hearing me out,

I look forward to hearing you out as well,

Rutherford B. Hayes

———————————————————————————

From: Kirstein, Peter N.

Sent: Fri 10/9/2009 4:20 PM

To: Rutherford B. Hayes

Subject: RE: Seat Change

Hey RBH

Thanks for giving me permission to “move” you. Some folks would order it. The reason is simple: to reduce talking during class that I have found increasingly distracting. As you know, there were previous times or a time that I asked the person next to you not to talk during class. I thought gee-instead of making a scene–just ask the one who comes in last today, which was you, if you would do it. So it’s a class management issue but if YOU are really upset about this, you may sit wherever you want if you would not talk during class–even if being lively and friendly and tell folks who do talk to you about our deal. I do think the change of venue is good but I want folks to feel empowered and I know you want ME to feel comfortable and not distracted during class so I can meet the needs of the other folks.

Great job on exam today!! You will be very pleased I think.

Peter

————————————————————————————–

From: Rutherford B. Hayes [mailto: rbh@mymail.sxu.edu]

Sent: Fri 10/9/2009 4:33 PM

To: Kirstein, Peter N.

Subject: Re: Seat Change

Ok, sounds good! I don’t mind changing my seat. Sorry for my disruptive area, it’s usually disruptive because we enjoy your class so much, no B.S. just being honest. When you get into class we want to but some of us participate during class too much, we understand that you want everyone to get there chance as well. Some of us would like more of an opportunity to participate, that is why we talk to each other rather than in class. We just have so much to say and you’re very inspiring.

I did really well on the exam? No way I worked my butt off for this test! I thought I did badly. I know you probably wouldn’t give out grades early but WHAT DID I GET WHAT DID I GET? You have the opportunity to make my weekend Sir. J/K if you can’t tell me that’s cool, but I’d love to know. I’m not a History buff, but you make me get into history, you make me pissed off, and you make me want to change the world to be completely honest!

Thank for being AWESOME

Rutherford B. Hayes

————————————————————————————

From: Kirstein, Peter N.

Sent: Fri 10/9/2009 4:49 PM

To: Rutherford B. Hayes

Subject: RE: Seat Change

It’s THEIR chance not there chance. Oh I luv it.

On the exam but shhhhhh! you got an A- – on the objective questions and A/A- on the essay and A/A- on the exam. Your essay was chock full of goodies. You might avoid the outline approach and write paragraphs to practice your writing.

Feel free to participate always. Yes sometimes “Emanuel” beats me to the punch before I can recognise another student but don’t hold back. Just let me see you before I call but holding one’s hand up while it would solve everything does sound a little too controlling.

Best,

Peter

———————————————————————————–

From: Rutherford B. Hayes [mailto: rbh@mymail.sxu.edu]

Sent: Fri 10/9/2009 4:56 PM

To: Kirstein, Peter N.

Subject: Re: Seat Change

Sorry I rarely proofread emails! Thank you for telling me! hahaha I told my mom that I may have failed it… I was terrified.

Thank you so much and I’ll try to make myself more noticeable during class!

History News Network has generously featured my Constitution Day remarks on its Historians Roundup page. I had not known in advance of this prominent dissemination of my talk and was very flattered at their decision to do so. H.N.N. has been a very “intimate” part of my career since my suspension in 2002. They were one of the first to report on it in a manner that was objective, civil and impartial. H.N.N. also courageously invited me to publish articles of historical and contemporary issues shortly after my auto-da-fé which was primarily responsible for averting a possible McCarthyite blacklisting or academic-wide censorship of my progressive work. The views expressed in my remarks were presented as individual opinion and having not anticipated such a wide dissemination, such a disclaimer, however stupid and odious, is probably good sense as the ghost of McCarthyism always hovers above my shoulder.

Rick Shenkman, the editor, presidential historian and frequent guest on national cable shows has developed a website that  is ideologically neutral. It features articles and opinions from historians and other scholars that traverse the ideological spectrum. I am very grateful for this latest unsolicited gesture: running and featuring my Constiution Day remarks which it encountered on my blog.

Source: Peter N. Kirstein blog (9-15-09)

Constitution Day, which is actually on Sept. 17 as if it matters, should be ignored and this university (St Xavier in Chicago) should engage in academic freedom civil disobedience and avoid any connection with such a governmental requirement. Senator Robert Byrd, a former K.K.K. member who to his credit voted for President Barack Hussein Obama and eloquently opposed the Iraq war, initiated this boosterism with legislation, but we should not comply with unfunded federal mandates dictating higher education content since it invariably bleeds into nationalism and patriotic education which is the antithesis of critical thinking and liberal education.

Senator Byrd, Democrat of West Virigina: his head may be superimposed but joined the K.K.K. as a young man in the Jim Crow south.

Yet I never say no to student invitations and this is the second time I have participated in such an activity that implicitly, however subtly, suggests adulation of a founding document based on racism, slavery, genocide, sexism and misogyny.

Yet the next best thing is to insure that the Constitution is seen for what it is: a fake, class-based document that selectively confers democratic freedoms as elite class interests expropriate its meaning. Americans should not revere the constitution, gush over the Founders’ alleged touch of genius, exaggerate its protections of our supposed freedoms, anoint it with Biblical reverential inspiration and bow down to this graven image as the protector and enabler of our nation and well-being.

This view was advanced by George Bancroft (1800-1891) in the nineteenth century. Bancroft was known by some as the “father of American history.” He was a secretary of the navy, an architect of the imperialistic, racist Mexican War, minister to the United Kingdom and Germany and wrote a ten volume history of the United States which, while breaking new ground in subject matter, such as exploring the colonial period and using primary sources, was basically government propaganda in the guise of history. Many of these volumes were written before the general emancipation of slavery in 1865. Since Bancroft was indeed an anti-slavery Democrat, this quotation is even more astonishing for its hyperbolic display of Constitution love:

“The Constitution establishes nothing that interferes with equality and individuality. It knows nothing of differences by descent, or opinions, of favored classes, or legalized religion, or the political power of property. It leaves the individual alongside of the individual…. As the sea is made up of drops, American society is composed of separate, free, and constantly moving atoms, ever in reciprocal action … so that the institutions and laws of the country rise out of the masses of individual thought which, like the waters of the ocean, are rolling evermore.”

The Preamble to the Constitution appears to be progressive and inclusive:

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Establish justice? Promote the general welfare? Secure the blessings of liberty? Slavery lasted over three-quarters of a century after the Constitution was adopted in 1788. We had a Jim Crow apartheid system, similar to South Africa, until 1965 almost two centuries after the meaningless little document entered into force. The subjugation of women, with particular reference to the lack of voting rights, remained in force under the Constitution for another century and a half until 1920. And these epochs of shame continued even after the Constitution was amended with the ten Bill of Rights articles in 1791.

To merely read the Constitution, and it has some rhetorical virtues to be sure, does not tell the story. It’s not what it says but whether it is enforced. It’s not what its rhetoric is but who interprets it such as the Supreme Court. It’s not about strict construction; it’s about the power elite from business to politics to the media defining how it is implemented.

For example, take the gun lobby and the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”  It does not expressly confer a federal right to bear arms outside of a state militia but just say it does, form a treacherous organisation such as the National Rifle Association, and hire Charlton Heston as your spokesperson if someone thinks killing kids in drive bys, presidents, spouses and children, Beatles’ singers, college students and professors on campuses such as Virginia Tech and Northern Illinois are appropriate prices to pay for the freedom to carry handguns and assault weapons. Tell the next dead cop’s family whether conservative law and order advocates of “right to carry” protected their father or mother in their stupid and selfish perversion of the Constitution.

Read what the Constitution says but understand the realities of power and the blinding effects of Constitution love. Who controls the government and power in this country is much more important than the Constitution’s alleged democratic provisions. Do not believe that the Constitution protects your freedoms or your rights and do not be lulled by the opium of patriotism, reverence for American founding documents and the notion of American exceptionalism.

A historian, who disagreed with Bancroft’s glorification of the Constitution was the great Charles Beard. He wrote one of the most important histories of the twentieth century: An Economic Interpretation of the Constitution of the United States in 1913. This is a quotation influenced by the materialist theories of Karl Marx whose death preceded Beard’s work by only thirty years:

“Inasmuch as the primary object of a government…is the making of the rules which determine the property relations of members of society, the dominant classes …must obtain from the government such rules as are consonant with the larger interests necessary to the continuance of their economic processes, or they must themselves control the organs of government.” Beard is stating that elites make sure those in government make rules that advance their interests and failing that take over the government to suit themselves.

Beard researched the backgrounds of the fifty-five men who gathered in Philadelphia in 1787 during the Constitutional Convention. Most were lawyers; most acquired wealth derived from land, chattel slavery, early manufacturing, or shipping. Forty of the fifty-five speculated or owned government bonds which would appreciate with a stronger centralised economy. (Howard Zinn, Peoples History of the United States, 90-1).

According to Howard Zinn: “Beard found that most of the makers of the Constitution had some direct economic interest in establishing a strong federal government: the manufacturers needed protective tariffs; the moneylenders wanted to stop the use of paper money to pay off debts; the land speculators wanted protection as they invaded Native-American lands; slave owners needed federal security against slave revolts and runaways; bondholders wanted a government able to raise money by nationwide taxation, to pay off those bonds.”

Beard noted in his progressive analysis that slaves, indentured servants, women and property-less males were not present at the Constitutional Convention, much less Native Americans who discovered the country.

This is why Marxism is so valuable as a component of critical thinking and pursuit of the truth. Prior to Beard, few historians adopted an economic analysis of history. It only emphasised power, politics and white-elite male rule. Marx introduced a materialist view of society that saw economic forces as the dominant motive force in political economy. While Marx exaggerated economic determinism and overlooked the essentials of non-economic forces, it drove Beard and modern progressives in many disciplines to expand the search for the truth from the vantage point of economic forces.

People do not control the Constitution but vested elite interests control the Constitution. The masses, the working class, the 46,300,000 without health insurance, the 13% unemployed Hispanics, the 15.1% of African-Americans who are unemployed, [compare to 8.9% white unemployment rate], the 13.2% of the American population living in poverty, the 18.6% of seniors living in poverty despite Medicare and Social Security and the 35.1 million on food stamps (now called Electronic Benefit Transfers!) don’t benefit from the Constitution. Adults who wish to marry others of their own gender have no national Constitutional protection. It is merely a shell, a veneer that conceals the realities of America’s class system. Those with power, with or without a rhetorically benevolent constitution, will continue to run this country and the world with bombs, arms sales, multinational corporations, nuclear non-proliferation for non-white countries and agribusiness interests with a smattering of democracy and civil rights so as to prevent a full scale insurrection here at home.

William Lloyd Garrison (1805-1879)

It is time on this so-called Constitution Day to recognise the meaningless Constitution should be abandoned, and possibly burned as it was outside of Boston on July 4, 1854 by the glorious abolitionist William Lloyd Garrison who described the pro-slavery document as “a covenant with death and an agreement with Hell.” Let’s replace it with international law, that is creeping into Supreme Court opinions in such areas as the death penalty, which is much more progressive and supportive of democracy, the dignity of the human person, and international peace and security.

Judge Billings Learned Hand (1872-1961)

No less an authority than Learned Hand, the iconic judge of the fifth circuit United States Court of Appeals and possibly the greatest jurist never to serve on the Supreme Court, affirms much of my presentation:

We “rest our hopes too much upon constitutions, upon laws and upon courts…Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.” (quote in Haridakis and Ferris, “The Use of ‘Speech Zones,’” in Morgan, 9/11 and the New Legal Landscape, Palgrave Macmillan, 2009, 52.)

Peter N. Kirstein contributed a book chapter “Challenges to Academic Freedom since 9/11” in Matthew Morgan, ed., The Impact Of 9/11 And The New Legal Landscape: The Day That Changed Everything (Palgrave Macmillan, 2009).  It appears in the third volume of a massive six-volume analysis of the impact of 9/11 on the United States.  Kirstein’s chapter analyzes through case law such as the landmark Sweezy v. New Hampshire (1957) and Keyishian v. Board of Regents (1967) and seminal case studies the historic ascendancy of academic freedom as a quasi-constitutional right. It directly assesses significant violations of it on university campuses across the United States. Personal biography is intertwined with numerous developmental aspects of academic freedom in America from the early twentieth century with emphasis upon the post 9/11 witch-hunts that have been virtually ignored in the historiography of the period.

In addition to Kirstein, some of the other chapter contributors are Alan Dershowitz, Frankfurter Professor of Law, Harvard Law School and Aziz Huq, former law clerk for Justice Ruth Bader Ginsberg and lecturer in law at the University of Chicago Law School. Susan N. Herman, president of the American Civil Liberties Union endorsed the work: “For the past eight years, the fog of 9/11 has been as dense as the proverbial fog of war….This superlative collection of scholarly and personal reflections should help to clear the air, so that we can truly begin the process of assessing the damage we have done and reconstructing our laws.” Stuart Gottlieb, Director of Policy Studies, Yale University MacMillan Center also endorsed the book: “This volume brings…issues to life, and illuminates the importance of the stakes involved.  This thoughtful set of essays can only serve to help us better address these daunting challenges more effectively.”

I praise the editor Matt Morgan, a Bronze Star decorated veteran from  the Afghan war, for publishing my chapter in the same volume as Mr Dershowitz. In my chapter, I am quite harsh of Mr Dershowitz’s vilification campaign against Norman Finkelstein and amazingly he contributes a chapter on the issue of deterrence v. prevention in dealing with so-called “terrorists” or are they anti-imperial, anti-Zionist freedom fighters? In any event I had often wondered whether Mr Dershowitz would publicly attempt to prevent my publication or take his marbles and go home and not write his chapter. I am sure he is aware of my blogging during the  Finkelstein persecution for controversial ideas inquisition which disgraced DePaul University and the academic profession with such an unseemly persecution of a person’s scholarship.

One of Mr Dershowitz’s friends is an Israeli professor, convicted of libel in another case, whom I have tangled with due to his unprofessional, cowardly and despicable uncivil charges against American professors whom he disagrees with. The authors of this book were well aware of the entire volume as we were given proofs of the entire work. While Mr Dershowitz appealed unsuccessfully to the Terminator, California Republican Governor  Arnold Schwarzenegger, to censor Dr Finkelstein’s, Beyond Chutzpah which was published by the University of California Press. such action was not replicated in my case. Of course, he might not know who I am but I imagine he does and at least was intriqued by the chapter’s title.  He may have read it and read about himself prominently displayed as an antagonist and enemy of academic freedom. Perhaps he realized that a public display of censorious angst would have been indefensible but I will stop speculating and merely confess to a delicious irony to be included in the same anthology as the Frankfurter Professor of Law. Perhaps Mr Dershowitz should acquaint himself more fully with his endowed provenance. I quote Justice Felix Frankfurter’s academic-freedom affirmation opinion in the landmark Sweezy v New Hampshire (1957) case. Unfortunately the person who benefits from all the lavish splendours of a Harvard-endowed chair is the antithesis of academic freedom, fairness and frankly basic decency.