Peter N. Kirstein

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, 2010. 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 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!

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 is superimposed but joined the K.K.K. in the Jim Crow south. He has distanced himself from his youthful support of domestic terrorism.

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.

DISTRICT COURT, CITY AND COUNTY OF DENVER, COLORADO

Court Address:

1437 BANNOCK STREET DENVER, CO 80202

 Plaintiff(s): WARD CHURCHILL, an individual v. Defendant(s): UNIVERSITY OF COLORADO; THE REGENTS OF THE UNIVERSITY OF COLORADO, a body corporate

▲ COURT USE ONLY ▲

Case Number: 06CV11473

Courtroom: 6

ORDER GRANTING DEFENDANTS’ MOTION FOR JUDGMENT AS A MATTER OF LAW AND DENYING PLAINTIFF’S MOTION FOR REINSTATEMENT OF EMPLOYMENT

 1. The Plaintiff in this matter is Professor Ward Churchill, and the Defendants are the University of Colorado and the Regents of the University of Colorado.

This matter comes before the court on Defendants’ Motion for Judgment as a Matter of Law and Plaintiff’s Motion for Reinstatement of Employment. This Court, having heard testimony, received exhibits, and heard argument of counsel and being otherwise fully apprised in the premises, does find and order as follows:

2. On April 2, 2009 following a four-week jury trial, the jury in this matter found in favor of Professor Churchill on his Second Claim for Relief-First Amendment Retaliation in Terminating Professor Churchill’s Employment.

3. The Defendants move this Court to enter judgment as a matter of law in their favor on Professor Churchill’s Second Claim for Relief on the ground that it is barred by the doctrine of quasi-judicial immunity.

4. Professor Churchill requests the Court order his reinstatement of employment to his former position of fully tenured professor at the University of Colorado, and to provide such further equitable relief as is necessary to vindicate his rights under the First Amendment to the United States Constitution.

5. For the following reasons I grant Defendants’ Motion for Judgment as a Matter of Law and deny Professor Churchill’s Motion for Reinstatement of Employment.

I. Motion for Judgment as a Matter of Law

Background

 6. As specified in the pleadings and Trial Management Order, the University preserved the defense that it was immune from liability. The parties agreed that the University would present its immunity arguments after the jury’s verdict because judicial immunities are a legal issue to be determined by a court, not a jury. See Miller v. Davis entitled to absolute immunity is a question of law.) Crooks v. Maynard, 913 F.2d 699,  700 (9th Cir. 1990) (stating “judicial immunity is a question of law”); Brewer v. BlackwellRegents member of the of the University’s faculty. Specifically Article 5.C.1 of the Laws of the RegentsRegent Policy 5-I, §III(B)(1)(b)(2)(i) allowed Professor Churchill to be represented by counsel. Regent Policy 5-I, §III(B)(2)(o) allowed Professor Churchill and his counsel the right to examine each of the University administration’s witnesses and the right to present his own witnesses. Regent Policy 5-I, §III(B)(2)(r) allowed Professor Churchill and his counsel to present opening statements. Regent Policy 5-I, §III(B)(2)(r) also allowed Professor Churchill to make both oral and written closing arguments to the panel.Article 5.C.1 of the Laws of the Regents - – conduct falling below minimum standards of professional integrity. Because President Brown believed that this misconduct warranted dismissal, rather than some other sanction, President Brown returned the case to the panel for reconsideration pursuant to Regent Policy 5-I, §III(C)(7). The panel did not modify its report, so President Brown transmitted his recommendation and the panel to the Board of Regents for final action. protected by judicial immunity is a question of law and the facts found by the district judge in making that determination are to be reviewed under the ‘clearly erroneous’ standard”).

7. Early in the lawsuit, Professor Churchill brought claims not only against the University and the Board of Regents, but also against each of the individual Regents who served in 2005 (when the University examined whether his speech was constitutionally protected) and in 2007 (when the Board of Regents dismissed him). Litigants normally file claims in this manner because public officials sued in their individual capacities cannot claim Eleventh Amendment immunity. Kentucky v. Graham, 473 U.S. 159, 166-67 (1985).

8. Under the Colorado Governmental Immunity Act, however, the University is required to defend and indemnify the Regents for claims arising within the scope of their service. C.R.S. §24-10-103(4)(a) (stating that a “public employee” means “an officer, employee, servant, or authorized volunteer of the public entity, whether or not compensated, elected, or appointed”); C.R.S. §24-10-110(1)(a-b) (stating that a public entity shall be responsible for the defense and payment of claims arising against public employees). Under these circumstances, allowing the case to proceed against each individual Regent would only increase the cost of the case (because each Regent could hire separate counsel) and add to the complexity of the case (because any judgment could be entered only against an individual Regent subject to reimbursement by the University).

In an already complicated case, asserting Eleventh Amendment immunity would not change the parties’ ultimate position, but would delay Professor Churchill’s ability to have his claims resolved in a timely and efficient manner.

4

9. To avoid this unnecessary cost and complexity, the University agreed to waive its Eleventh Amendment immunity, thus allowing direct claims to be brought against the University and the Board of Regents. In return for the ability to bring direct claims, however, Professor Churchill agreed that the University acquired the ability to assert any defenses that would be available to individual Regents. The parties’ Stipulation provides:

The University agrees and stipulates that it shall waive its immunity to claims for damages under the Eleventh Amendment to the United States Constitution to permit the same recovery from the University that might otherwise be had against any of its officials or employees acting in their official or individual capacities, reserving to the University the ability to present the same defenses that would have been applicable to any of its officials or employees acting in their official or individual capacities.

10. Therefore, because quasi-judicial immunity was a “defense that would have been applicable to any of its officials or employees” it is a defense available to the University and the Board of Regents.

Findings of Fact 

11. Article VIII of the Colorado Constitution creates a number of state institutions and states, “Educational, reformatory, and penal institutions as the public good may require, shall be established and supported by the state, in such manner as may be prescribed by law.” Colo. Const. Article VIII, §1. Within this broad grant of authority, the Colorado Constitution created the University of Colorado as a state institution of higher education. Colo. Const. Article VIII, §V. For governance of the University of Colorado, the Constitution provides, “There shall be nine regents of the University of Colorado who shall be elected in the manner prescribed by law for terms of six years each.” Colo. Const Article IX, §12. The Board of Regents, as a constitutional body that is not part of the legislative or executive branches, occupies a unique position in Colorado’s governmental structure. Subryan v. Regents of the University of Colorado, 698 P.2d 1383, (Colo. App. 1984).

12. Among the Constitutional powers vested in the Board of Regents is the power “to enact laws for the government of the University.” Subryan, 698 P.2d at 1383. Acting pursuant to this authority, the Board of Regents enacted Laws of the

A faculty member may be dismissed when, in the judgment of the Board of Regents and subject to the Board of Regents’ constitutional and statutory authority, the good of the University requires such action. The grounds for dismissal shall be demonstrable professional incompetence, neglect of duty, insubordination, conviction of a felony or any offense involving moral turpitude upon a plea or verdict of guilty or following a plea of nolo contendere, or sexual harassment or other conduct which falls below minimum standards of professional integrity.

13. Article 5.C.2.(A)(1) of the Laws of the Regents specifies that “no member of the faculty shall be dismissed except for cause and after being given an opportunity to be heard…” If the University’s administration contemplates that it will dismiss a faculty member, the faculty member may request a hearing before the Faculty Senate Committee on Privilege and Tenure. Laws of the Regents, Article 5.C.2.(B). At any such hearing, the faculty member “shall be permitted to have counsel and the opportunity to question witnesses . . . [and] the burden of proof shall be on the University administration.” Laws of the Regents, Article 5.C.2.(B). After the Faculty Senate Committee on Privilege and Tenure makes its findings, the President of the University issues a recommendation and transmits it to the Board of Regents for final action. Laws of the Regents, Article 5.C.2.(C).

 14. To implement the Laws of the Regents’ requirement that no faculty member be dismissed “except for cause and after being given and an opportunity to be heard,” as well as the faculty member’s right to a hearing before the Faculty Senate Committee on Privilege and Tenure, the Regents enacted Regent Policy 5-I. The University followed Regent Policy 5-I in the weeks and months preceding its dismissal of Professor Churchill.

15. Regent Policy 5-I, §III(A)(a) allows the Chancellor of University of Colorado at Boulder to initiate the dismissal for cause process by issuing a written notice of intent to dismiss. On June 26, 2006, Interim Chancellor Philip DiStefano issued a Notice of Intent to Dismiss informing Professor Churchill that the University intended to dismiss him as a tenured faculty member. The Notice of Intent to Dismiss occurred after the University of Colorado at Boulder’s Standing Committee on Research Misconduct concluded that Professor Churchill violated the University’s Administrative Policy Statement on Misconduct in Research and Authorship. Chancellor DiStefano informed Professor Churchill that his “pattern of serious, repeated and deliberate research misconduct fall below minimum standards of professional integrity expected of University faculty and warrants your dismissal from the University of Colorado.”

16. As permitted by Regent Policy 5-I, Professor Churchill requested a formal hearing before a five-member panel of the Faculty Senate Committee on Privilege and Tenure. Regent Policy 5-I, §III(B)(2)(b) allowed Professor Churchill to object to any of the panel members, but he did not do so. Although 5-I, §III(B)(2)(f-g) normally contemplates that a dismissal hearing will last no more than two days, Professor Churchill had months to prepare for his hearing, which began on January 8, 2007, and lasted for seven full days. Pursuant to Regent Policy 5-I, §III(B)(2)(l), a professional court reporter, as well as a professional videographer, made a complete record of the proceedings.

17. At the hearing, Regent Policy 5-I, §III(B)(2)(k) requires the administration to establish grounds for dismissal by clear and convincing evidence. Professor Churchill availed himself of each of these opportunities during the seven-day hearing.

18. After the conclusion of the hearing, the panel members reached a determination. The panel was “unanimous in finding that Professor Churchill has demonstrated conduct which falls below minimum standards of professional integrity, and that this conduct requires severe sanctions.” The panel split on what sanction it would recommend – - two members recommended dismissal, while three panel members recommended a suspension coupled with demotion. Regent Policy 5-I, §III(C)(2) allowed Professor Churchill to respond in writing to the panel’s report.

19. The panel transmitted its report to the President of the University. President Brown, upon his review of the record, concurred with the panel’s finding that Professor Churchill had engaged in conduct that served as grounds for dismissal under

20. After President Brown made his recommendation, Regent Policy 5-I, §IV Before the hearing, Regent Policy 5-I, §IV allowed Professor Churchill to submit extensive written arguments to the Board of Regents.Economou suit because “the protection essential to judicial independence would be entirely swept away” if a lawsuit against judges could proceed upon the premise “that the acts of the judge were done with partiality, or maliciously, or corruptly…” Bradley v. Fisher, 80 U.S. 335, 348 (1871). The court reasoned that a judge’s errors “may be corrected on appeal, but he should not have to fear that unsatisfied litigants will hound him with litigation charging malice or corruption. Pierson v. Ray, 386 U.S. 547, 554 (1967). Stated more directly, judicial immunity prevents judges from being subject to intimidation as they perform their functions. Pierson, 386 U.S. at 554.Imbler v. Pachtman necessary for the functioning of the judicial system, and they receive what has been termed “quasi judicial immunity.” Butz, 438 U.S. at 512. When government officials make judgments that are “functionally comparable” to those of judges, quasi-judicial immunity creates an absolute bar to liability. Butz, 438 U.S. at 513. Quasi-judicial immunity exists “not because of an official’s particular location within the Government but because of the special nature of [his] responsibilities.” Butz, 438 U.S. at 511. 10Examiners Professor Churchill’s, the Tenth Circuit found that no liability could stem from a career service council’s decision to discharge an employee, even though she claimed that the council “improperly discharged [her] in retaliation for her exercise of her right to free speech.” Atiya v. Salt Lake County, 988 F.2d 1013, 1016-17 (10th Cir. 1993).School DistrictNo. 9-RWidder , 85 P.3d at 527.Gressley v. Deutsch , the Tenth Circuit determined that University officials enjoy quasijudicial immunity from claims brought after disciplinary proceedings.Hulen at Page 13.Horwitz, 822 F.2d at 1514. Under Regent Policy 5-I, the dismissal

21. Regent Policy 5-I, §IV allowed the University administration and Professor Churchill to make presentations to the Board of Regents “based upon the record of the case, including the transcript of the proceedings before the [faculty committee].” After the parties’ presentation and “after consideration of all of the information provided to it,” the Board of Regents determined that Professor Churchill engaged in conduct that fell below minimum standards of professional integrity and dismissed him from his tenured faculty position.

Conclusions of Law

 22. The United States Supreme Court has recognized that there are”some officials whose special functions require a full exemption from liability.” Butz v. 23. Judicial immunity is not limited to judges, however, and has been extended to other participants in judicial processes, such as prosecutors and grand jurors.

24. In its leading case, the United States Supreme Court conferred quasi-judicial immunity upon administrative agency officials who participated in a hearing to exclude a commodity company from registration. Butz, 438 U.S. at 514-15. In conferring immunity, the Court took note that “the discretion which executive officials exercise with respect to the initiation of administrative proceedings might be distorted if their immunity arising form that decision was less than complete.” Butz, 438 U.S. at 515.

25. After Butz, the Tenth Circuit Court of Appeals has extended quasijudicial immunity to officials serving on panels to determine whether to terminate a government employee or revoke a professional license, even when those officials allegedly violated the Plaintiff’s constitutional rights. Saavedra v. City of Albuquerque, 73F.3d 1525, 1529-1530 (10th Cir. 1996); Horwitz v. Colorado State Board of Medical

26. Just as the Tenth Circuit has extended quasi-judicial immunity, the Colorado Supreme Court has also determined that a school district’s termination of an employee after a contested hearing is a quasi-judicial function. Widder v. Durango

Thus, in determining whether a school board is performing a quasi-judicial function, our inquiry must focus on the nature of the governmental decision and the process by which that decision is reached. Quasi-judicial decision making, as it name connotes, bears similarities to the adjudicatory function performed by courts.

11

Widder, 85 P.3d at 527 (internal citations omitted).

27. Specifically, where an official applies “preexisting legal standards or policy considerations to present or past facts presented to the governmental body, then one can say with reasonable certainty that the governmental body is acting in a quasi judicial capacity . . . ” Widder, 85 P.3d at 527. This type of decision occurs when a school district decides whether it should terminate an employee who violates the district’s code of conduct:

A school district’s decision about whether to terminate an employee who claims that he acted in good faith and in compliance with a conduct and discipline code certainly involves a determination of the rights, duties, or obligations of specific individuals on the basis of the application of presently existing standards . . . to past or present facts.

28. In its decisions in both Hulen v. State Board of Agriculture, and

29. Professor Myron Hulen was a tenured professor at Colorado State University. After he provided evidence in an investigation, Professor Hulen alleged that CSU involuntarily transferred him to another department where he would be unable to attract research funds, publish scholarship, or receive salary increases. Professor Hulen filed suit alleging that the transfer was in retaliation for his exercise of protected speech.

 Hulen v. State Board of Agriculture , 98-B-2170, Pages 1-3 (D. Colo. 2001). CSU’s faculty manual allowed Professor Hulen to challenge the transfer through a facultygrievance process, at which time CSU bore the burden of proving the propriety of the transfer. Hulen at Page 13. The grievance committee found that CSU’s administration improperly transferred Professor Hulen, but CSU’s provost reversed the grievance committee’s decision. CSU’s president and governing board upheld the transfer decision.

30. Professor Hulen sued CSU’s provost and president in their individual capacities for their alleged violations of his constitutional rights. The United States District Court for the District of Colorado granted them quasi-judicial immunity from Professor Hulen’s claims on the grounds that their judgments were “functionally comparable” to those of judges. Hulen at Page 19. Judge Babcock explained:

Here, the Faculty Manual provides that review of the grievance committee decision may be appealed through the administrative ranks, first to the Provost, then to the President, and finally to the State Board of Agriculture.

Each of these entities is provided by the Manual with the appropriate standard of review. Each is functionally comparable to judges, as each is required to exercise a discretionary judgment. In Dr. Hulen’s case, Provost Crabtree and President Yates involvement in the process was limited to this appellate function. I therefore conclude that Defendants Crabtree and Yates’ involvement with the process was as quasi-judicial officers and grant them immunity on that basis. Hulen at Page 20.

31. In Gressley, Professor Gene Gressley was a tenured professor at the University of Wyoming. After the University of Wyoming’s President transferred Professor Gressley to another department, he publicly complained. Gressley v. Deutsch, 890 F.Supp. 1474, 1480 (D.Wyo. 1994). A dispute then arose as to whether Professor Gressley had been insubordinate and had misused his position. Gressley, 890 F.Supp. at 1481.

32. The University of Wyoming’s president initiated proceedings to terminate Professor Gressley. Under the University’s procedures, a Faculty Hearing Committee heard two weeks of testimony before sustaining the charges against Professor Gressley. Gressley, 890 F.Supp. at 1481. Professor Gressley appealed the recommendation to the University of Wyoming Board of Trustee’s, which “after hearing oral arguments, reviewing the record before and findings of the Faculty Hearing Committee . . .sustained the Faculty Hearing Committee’s recommendation that Dr. Gressley’s employment be terminated for cause.” Gressley, 890 F.Supp. at 1481.

33. Professor Gressley brought individual capacity claims against each of the Trustees alleging that they unconstitutionally discharged him in retaliation for his exercise of free speech. The United States District Court for the District of Wyoming granted the Trustees quasi-judicial immunity from suit on the grounds that they were serving in an adjudicatory capacity. Gressley, 890 F.Supp. at 1490.

34. In doing so, Judge Downes construed the United States Supreme Court’s and Tenth Circuit’s precedents and applied the following test:

The Butz decision granted absolute immunity to administrative officials performing functions analogous to those of judges and prosecutors if the following formula is satisfied: (a) the officials’ functions must be similar to those involved in the judicial process; (b) the officials actions must be likely to result in lawsuits by disappointed parties; and (c) there must be sufficient safeguards in the regulatory framework to control unconstitutional conduct. Gressley , 890 F.Supp. at 1490-91.

35. In this case, it is clear that the Board of Regents performed a quasijudicial function and acted in a quasi-judicial capacity when it heard Professor Churchill’s case and terminated his employment.

36. When a governmental body applies “preexisting legal standards or policy considerations to present or past facts presented to the governmental body, then one can say with reasonable certainty that the governmental body is acting in a quasijudicial capacity….” Widder, 85 P.3d at 527. The Board of Regents determined whether grounds for dismissal existed under the Laws of the Regents. In doing so, The Regents “applied preexisting legal standards or policy considerations to past or present facts.”

37. Just as a judge must apply the applicable legal standards to determine “the rights, duties, or obligations of specific individuals,” the Laws of the Regents Specifically, “the grounds for dismissal shall be demonstrable professional incompetence, neglect of duty, insubordination, conviction of a felony or any offense involving moral turpitude upon a plea or verdict of guilty or following a plea of nolo contendere, or sexual harassment or other conduct which falls below minimum standards of professional integrity.”

38. “The existence of a statute or ordinance mandating notice and a hearing is evidence that the governmental decision is to be regarded as quasi-judicial.” State Farm Mutual Automobile Insurance Company v. City of Lakewood , 788 P.2d 808, 813 (Colo. 1990). The Laws of the Regents fulfill this requirement as they require “no member of the faculty shall be dismissed except for cause and after being given an opportunity to be heard as provided in this section.”

39. One of the safeguards available in the judicial system is that “the proceedings are adversary in nature.” Butz, 438 U.S. at 513. Horwitz, 822 F.2d at 1514. Under the Laws of the Regents, “the individual concerned shall be permitted to have counsel and the opportunity to question witnesses as provided in the rules of procedure governing faculty dismissal proceedings.”

40. Quasi-judicial immunity applies when proceedings are “conducted by a trier of facts insulated by political influence.” Butz, 438 U.S. at 513. Horwitz, 822 F.2d at 1514. In this case, the Privilege and Tenure Hearings Panel of the Faculty Senate was the “trier of fact” that determined whether the grounds for dismissal had been demonstrated against Professor Churchill. That “trier of fact” unanimously determined that Professor Churchill engaged in “conduct below the minimum standards of professional integrity,” which is one of the permissible grounds for dismissal.

41. In civil judicial proceedings, the party seeking relief must bear a burden of proof. Kaiser Foundational Health Plan of Colorado v. Sharp, 741 P.2d 714, 719 (Colo. 1987). Under the Laws of the Regents, “the burden of proof shall be on the university administration” in dismissal proceedings.

42. In civil proceedings, the burden of proof is normally only by a preponderance of the evidence. Under Regent Policy 5-I, the burden of proof on the university administration is to demonstrate grounds for dismissal by clear and convincing evidence. This higher burden of proof supports a finding of quasi-judicial immunity.

43. Quasi-judicial immunity is appropriate where “a party is entitled to present his case by oral or documentary evidence.” Butz, 438 U.S. at 513. Horwitz, 822 F.2d at 1514. Under the Laws of the Regents, the faculty member has the “opportunity to question witnesses” and present evidence. The Hearings Panel heard Professor Churchill’s witnesses, received any exhibits he wished to introduce, and he had the opportunity to submit whatever written arguments he wanted.

44. Quasi-judicial immunity is appropriate where “the transcript of testimony and exhibits together with the pleadings constitute the exclusive record for decision.” Butz, 438 U.S. at 513. Horwitz, 822 F.2d at 1514. Under Regent Policy 5-I, “the hearing officer shall appoint a registered professional reporter to record the hearing” and “all presentations shall be based on the record in the case, including the transcript of the proceedings before the Panel.” At the hearing, “the members of the Board shall have an opportunity to ask questions of the faculty member, the administration, and the hearing officer, but, ordinarily, the Board will not receive additional evidence.”

45. In quasi-judicial proceedings, “the parties are entitled to know the findings and conclusions on all issues of fact, law or discretion presented on the record.” Butz , 438 U.S. at 513. for cause panel first issues a written report containing “findings of fact, conclusions, and recommendations consistent with the policies of the Board of Regents.”

46. In quasi-judicial proceedings, the decision is subject to further judicial review. Miller, 521 F.3d at 1145; Butz, 438 U.S. at 513. Horwitz, 822 F.2d at 1514. The purpose of such a review is to determine whether the factual basis of the decision is supported by some evidence in the record…” Miller, 521 F.3d at 1145.

47. Although Professor Churchill asserts that quasi-judicial immunity would leave him without a remedy, he is mistaken. The remedy available to him is the same remedy available to every litigant subject to a quasi-judicial decision. C.R.C.P. 106(a)(4)(I) allows a district court to overturn a quasi-judicial action that constitutes an “abuse of discretion.” Under this standard, a district court might set aside any decision that is “clearly erroneous, without evidentiary support in the record, or contrary to law.” citing Butz, 438 U.S. at 513). The proper focus is upon the Leichliter v. State Liquor Licensing Authority , 9 P.3d 1153, 1154 (Colo. App. 2000).

48. Further, this court agrees with the University that it is beyond dispute that the Board of Regents’ decision would likely lead to litigation. Dismissal proceedings involve not only pecuniary interests, but also professional reputation. Butz, 438 U.S. at 509. This is exactly the type of quasi-judicial decision that the United States Supreme Court had in mind when it observed that “the loser in one forum will frequently seek another, charging the participants in the first with unconstitutional animus.” Butz, 438 U.S. at 512.

49. As described above, the Board of Regents’ decision occurred with sufficient procedural protections for the Court to grant quasi-judicial immunity, including: (1) the right to notice of charges; (2) the right to request a hearing before a faculty committee; (3) the right to challenge the participation of a member of the faculty committee; (4) the requirement that the University prove that grounds for dismissal exist by clear and convincing evidence; (5) the requirement that the University transcribe the hearing; (6) the right to representation by counsel; (7) the right to examine each University witness; (8) the right to present witnesses; (9) the right to present oral and written closing arguments; (10) the right to respond to the faculty committee’s findings; (11) the right to request a hearing before the Board of Regents; (12) the requirement that the Board of Regents consider only the evidence in the record; (13) the requirement that the Board of Regents take final action in a public meeting; and (14) the right of judicial review of the Board of Regents’ decision under C.R.C.P. 106. Professor Churchill received the full panoply of rights available in judicial proceedings.

50. Professor Churchill argues that the University is not entitled to quasi-judicial immunity because the University waived its Eleventh Amendment immunity, but Professor Churchill’s response mistakenly assumes that Eleventh Amendment immunity is the same thing as quasi-judicial immunity. They are separate immunities.

51. At its core, the Eleventh Amendment proscribes who may be sued in federal court or subjected to federal claims, the answer being that “arms of the state” may claim Eleventh Amendment immunity. The entity that is the University of Colorado would generally be afforded such immunity, while suits against individual officials would be permitted. However, in the pre trial agreement the University agreed to waive its Eleventh Amendment immunity.

52. In contrast, quasi-judicial immunity examines the type of action giving rise to the claim. If the government official performs a judicial action, he is immune from liability, even if he cannot claim Eleventh Amendment immunity. See e.g. Williams v. Valencia Count Sheriff’s Office (10thCir. 2002) (determining that a county court clerk was entitled to quasi-judicial immunity for carrying out duties of office); Harrison v. Gilbert, 148 Fed. Appx. 718, 2005 WL 2284266. *2 (10th Cir. 2005) (determining that a county attorney was entitled to claim judicial immunity); Boyce v. County of Maricopa, 144 Fed. Appx. 653, 2005 WL 1939919, *1(9th Cir. 2005) (determining that county probation officers preparing pretrial reports were entitled to judicial immunity).

53. Professor Churchill next argues that quasi-judicial immunity should not apply because the Regents are elected into office and subject to political pressure. In doing so, he disregards the cases extending quasi-judicial immunity to elected officials, such as Miller v. Davis, 521 F.3d. 1142, 1145 (9th Cir. 2008). In Miller, the Ninth Circuit Court of Appeals determined that the Governor of California was entitled to quasi-judicial immunity in reviewing parole decisions of inmates convicted of murder. Following the United States Supreme Court’s guidance that quasi-judicial immunity “flows not from rank or title … but from the nature of the responsibilities of the individual official,” the Ninth Circuit granted the governor immunity because that function of his office was “functionally comparable” to that of a judge. Miller, 521 F.3d at 1145 (citing Cleavinger v. Saxner, 474 U.S. 192, 201 (1985)).

54. The Ninth Circuit recognized that there were some factors that potentially weighed against granting the governor quasi-judicial immunity, such as that “the Governor’s review is not adversarial in nature, there is no requirement that the Governor consider precedent in making his determination, and the Governor is, by definition as an elected official, not insulated from political influence.” Miller, 521 F.3d at 1145. Yet, notwithstanding the governor’s “almost uniform denials of parole,” quasijudicial immunity was proper because the governor’s review of parole decisions “shares enough of the characteristics of the judicial process” to be considered judicial in nature.

Miller, 521 F.3d at 1145 ( function that the governmental official performs, not the means by which he acquired his office.

55. Further, judges are elected in many states. Those judges must campaign for office and must subsequently make decisions in high profile cases, but are nonetheless entitled to judicial immunity. See Brown v. Greisenauer, 970 F.2d 431, 439 (8th Cir. 1992) (stating that “for purposes of immunity analysis, the insulation-frompolitical- influence factor does not refer to the independence of the governmental official from the political or electoral process.”) Indeed, even judges in the State of Colorado are subject to retention elections, but these elections do not cause them to lose judicial immunity. Further, the Regents function in several capacities, including interacting with their constituents. Mr. Churchill’s dismissal was a function that was judicial in nature.

56. Professor Churchill cites Tonkovich v. Kansas Board of Regents, 1996 U.S. Dist. Lexis 18323 (D. Kan. 1996), for the proposition that Boards of Regents should not enjoy quasi-judicial immunity.

57. Professor Churchill correctly notes that Tonkovich denied quasijudicial immunity to the University of Kansas’ Board of Regents because the Kansas legislature had not “specifically delegated [its] quasi-judicial role by statute” and “the Kansas Legislature did not provide the Kansas Board of Regents with “the same explicit delegation of quasi-judicial functions [that it afforded administrative agencies].”

Valley Transportation Agency complaining of a violation of constitutional right does not have a direct cause of action under the United States Constitution but must use 42 U.S.C. §1983″) As it existed before§1983 and its Board of Regents, terminated him in retaliation for engaging in speech protected by the First Amendment to the United States Constitution. The University denied liability and asserted that it terminated Professor Churchill for research misconduct.Weeks v. Angelone, 528 U.S. 225, 234 (2000).

Tonkovich, 1996 U.S. Dist. Lexis 18323 at *40-41. In its two-page discussion of the Kansas Regents beginning on Page *39, Tonkovich denied quasi-judicial immunity solely because the Kansas legislature had not statutorily conferred quasi-judicial powers upon the Regents. Tonkovich never analyzed whether the Kansas Regents engaged in a form of judicial activity.

58. Professor Churchill suggests that “there is absolutely no meaningful distinction between the Kansas Regents and the University of Colorado’s Board of Regents,” but he is mistaken. The Kansas Board of Regents receives its powers only through express legislative delegations. Article 2, §6 of the Kansas Constitution provides:

The legislature shall provide for a state board of regents and for its control and supervision of public institutions of higher education. Public institutions of higher education shall include universities and colleges granting baccalaureate or postbaccalaureate degrees and such other institutions and educational interests as may be provided by law. The state board of regents shall perform  such other duties as may be prescribed by law.

59. The University of Colorado’s Board of Regents is not limited to “such other duties as may be prescribed by law” and does not depend upon Colorado’s General Assembly to grant it quasi-judicial authority. Article IX, §13 of the Colorado Constitution first created the Board of Regents without any further legislative action. Not only does the Colorado Constitution create the Board of Regents independently of any legislative action, the Constitution also grants the Regents broad constitutional authority to manage the University’s affairs. In contrast to the Kansas Constitution, which limits its Board of Regents to “such other duties as may be prescribed by law,” Colorado’s Constitution affirmatively states that the Board of Regents “shall have the general supervision of their respective institutions . . . unless otherwise provided by law.” The difference is significant because the Kansas Regents can act only where the legislature has expressly conferred a certain power, but the Colorado Regents possess constitutional authority to act unless the General Assembly has properly acted to remove its exclusive powers to govern the University.

60. Further, C.R.S. §23-20-112 states that the Board of Regents “shall remove any officer connected with the university when in its judgment the good of the institution requires it.” Therefore, the University of Colorado’s Board of Regents actually possesses both constitutional and statutory powers that Kansas Board of Regents lacked. As a result Tonkovich sheds no light on the issues before this Court.

61. Professor Churchill argues that the Board of Regents did not act in a quasi-judicial capacity because it did not reach the same result as the faculty panel. However, the faculty panel found unanimously that Professor Churchill engaged in conduct that met the grounds for dismissal. Moreover, the faculty panel split 3-2 as to whether dismissal was the appropriate remedy. Under those circumstances, the Board of Regents engaged in an entirely judicial function when it reviewed the record and applied “discretionary judgment.” Hulen, 98-B-2170 at Page 20.

62. Professor Churchill argues that the Board of Regents did not act as an appellate body. However, the Board of Regents acted in a nearly identical procedural manner as the university administrators or trustees in Hulen and Gressley when it reviewed the reports and recommendations generated during weeks of adversarial hearings without taking additional evidence. Further, there is nothing that limits quasijudicial immunity to officials acting in a purely appellate role. See Horwitz, 822 F.2d at 1511; Butz, 438 U.S. at 513.

63. Finally, Professor Churchill argues that the 1996 Amendment to 42 U.S.C. §1983, limiting the availability of equitable relief against judicial officers, does not apply to quasi-judicial officers, such as Regents acting in a quasi-judicial capacity. I disagree.

64. The substantive right to seek remedial measures for a state official’s past constitutional violation exists only pursuant to the federal statute under which Professor Churchill asserted his claims, 42 U.S.C. §1983. See Arpin v. Santa Clara  1996, §1983 stated: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. . . Interpreting this language, the United States Supreme Court determined that “Congress plainly authorized the federal courts to issue injunctions in §1983 actions, by expressly authorizing a ‘suit in equity.’ Mitchum v. Foster, 407 U.S. 225, 242 (1972). The Supreme Court later determined that judicial officers could not raise judicial immunity as a means of avoiding prospective relief awarded under §1983, even if judges were immune from claims for monetary damages. Pulliam v. Allen, 466 U.S. 522, 538-540 (1984). In doing so, the Supreme Court determined that “nothing in the legislative history of §1983 or in this Court’s subsequent interpretations of that statute supports a conclusion that Congress intended to insulate judges from prospective collateral injunctive relief.” Pulliam, 466 U.S. at 540.

65. However, Congress amended 42 U.S.C. §1983 in 1996 to modify the availability of prospective relief available to successful litigants. As amended, the statute now reads: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. . .

66. The 1996 amendment to 42 U.S.C. §1983 applies to “actions against a judicial officer,” which includes officers, such as Regents, acting in a quasijudicial capacity: Although neither the Supreme Court nor the First Circuit have addressed whether the statute protects quasi-judicial actors . . .performing tasks functionally equivalent to judges from actions for injunctive relief, circuit and district courts in the Second, Sixth, Seventh, Ninth, and District of Columbia have answered in the affirmative.

 Pelletier v. Rhode Island , 2008 WL 5062162, *5-*6 (D. R.I. 2008). See also Montero v., 171 F.3d 757, 761 (2nd Cir. 1999) (applying the 1996 amendments when dismissing claims for prospective relief against quasi-judicial officers); Roth v. King, 449 F.3d 1272, 1286-87 (D.C. Cir. 2006) (stating that attorneys acting on administrative panels are entitled to immunity because “there is no reason to believe that the Federal Courts Improvement Act of 1996 is restricted to ‘judges’”) In Pelletier, Judge Smith surveyed all of the cases applying the 1996 amendment to quasi-judicial officers and found only one, Simmons v. Fabian, 743 N.W. 2d. 281 (Minn.App.2007), did not grant immunity for prospective relief, but observed that the court in Simmons: (1) failed to acknowledge the legislative history demonstrating that the amendment was intended to apply to quasi-judicial officers; and (2) was contrary to the existing body of law on the subject. Pelletier, 2008 WL 5062162 at *6.

67. Consequently, this Court is unable to grant prospective relief of the type that Professor Churchill seeks unless either: (1) the University violated a declaratory decree; or (2) declaratory relief was unavailable. Professor Churchill has never claimed that the University violated a declaratory decree, so that argument is unavailable to him.

He also cannot demonstrate that declaratory relief was unavailable to him. C.R.C.P. 57 states that “district and superior courts within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed.”

68. Moreover, C.R.C.P. 106 allows an action in the district court “where any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law.” Where these avenues were available to him, the plain language of 42 U.S.C. §1983 now prohibits the form of relief that Professor Churchill seeks to obtain from the University.

69 Based on the foregoing, it is hereby ORDERED that Defendants are GRANTED quasi-judicial immunity as a matter of law from Professor Churchill’s Second Claim for Relief. As a result, the jury’s verdict in this matter is hereby VACATED, and judgment is hereby entered in favor of Defendants on Professor Churchill’s Second Claim for Relief.

II. Motion for Reinstatement of Employment1 

70. I have received extensive briefs from the parties related to this issue, carefully reviewed the exhibits submitted with the briefs, and held a one-day evidentiary hearing on July 1, 2009. I have carefully considered the applicable law and facts before making this ruling.

Procedural Background and Jury’s Verdict

71. This lawsuit arose from Professor Churchill’s former employment at the University of Colorado. In his Second Claim for Relief, filed under 42 U.S.C.

72. After a four-week trial, the jury returned a verdict, in which it determined that a majority of the members of the Board used Professor Churchill’s protected speech as a motivating factor in their decision to terminate his employment.

 Verdict Form – Question 1.

I would note, however, that I instructed the jury that it did

1 The ruling and order on Defendants’ MOTION FOR JUDGMENT AS A MATTER OF LAW, issued this same date, may render this Order concerning reinstatement moot. not have to find that “the protected speech activities were the only reason Defendants acted against the Plaintiff.” Jury Instruction 7. The jury also determined that the University failed to demonstrate that Professor Churchill would have been terminated in the absence of his protected speech. Verdict Form -Question 3.

73. The jury was instructed that it could award damages for “any noneconomic losses or injuries that Plaintiff Churchill has had to the present time, including physical and mental pain and suffering, inconvenience, emotional distress, loss of reputation, and impairment of quality of life,” as well as “any economic losses or injuries which plaintiff has had to the present time.” Jury Instruction 8. I gave this jury instruction because it was clear from the nature of the testimony that Professor Churchill (and other witnesses) provided, as well as the argument of his counsel and his pre-trial pleadings, that Professor Churchill was seeking compensation for lost wages, loss of reputation, and emotional distress. I further instructed the jury that “difficulty or uncertainty in the precise amount of any damages does not prevent you from deciding an amount.” Jury Instruction 11.

74. The jury asked during its deliberations if it could find in favor of Professor Churchill but award him no damages. Jury Question 1. Without objection from Professor Churchill’s counsel, I instructed the jury, “If you find in favor of the plaintiff, but do not find any actual damages, you shall nonetheless award him nominal damages in the sum of one dollar.” Court’s Response to Jury Question 1.

75. Less than an hour after I provided this instruction, the jury returned a verdict and awarded Professor Churchill economic damages in the amount of one dollar, and noneconomic damages in the amount of zero (0) dollars. Verdict Form -

Question 4.

I find the jury followed its instructions and understood my answers to its questions.

76. Accordingly, I find that the jury necessarily determined that Professor Churchill did not incur “any actual damages.”

77. Professor Churchill did not challenge the jury’s award of nominal damages or ask me to consider an additur on the grounds that that the jury’s verdict was inadequate or contrary to the facts established at trial. See Madrid v. Safeway Stores, 709 P.2d 950, 950 (Colo. App. 1985) (describing trial court’s ability to provide additur when the jury’s verdict was grossly inadequate). Reinstatement is Not an Appropriate Remedy in Light of the Jury’s Determination that Professor Churchill Suffered No Actual Damages

78. Because Professor Churchill’s claim arises under a federal statute,

79. The Tenth Circuit Court of Appeals has found that a trial court has “considerable discretion” in formulating remedies, one of which is reinstatement. Carter 42 U.S.C. §1983, I have applied federal law to the question of whether reinstatement is an appropriate remedy.v. Sedgwick County equitable relief by way of reinstatement rests in the discretion of the trial court.”Services of America, Inc. v. Nielsen, determine that I am bound by the jury’s implicit finding that Professor Churchill has suffered “no actual damages” as a result of the constitutional violation.Colorado Division of Youth Services,Ford-Lincoln-Mercury, Inc. determined that an employer unlawfully terminated the plaintiff. The jury awardedResearch and Authorship of misappropriation of ideas, or additional practices that seriously deviate from those that are commonly accepted in the research community for proposing, conducting or reporting research.” Trial Exhibit 3(B).  Regents of University  Bingman v. Natkin & Co., 937 F.2d 553, 558 (10th Cir.1991).

80. That discretion is not unlimited, however, because the Tenth Circuit has also held that “in fashioning equitable relief, a district court is bound both by a jury’s explicit findings of fact and those findings that are necessarily implicit in the jury’s verdict.” Bartee v. Michelin North America, Inc., 374 F.3d 906, 910 (10th Cir. 2006). Where “the jury verdict by necessary implication reflects the resolution of a common factual issue . . . the district court may not ignore that determination.” 

81. My determination necessarily affects whether reinstatement is an appropriate remedy in this case. As the United States Supreme Court has determined, “[N]ominal damages, and not damages based upon some indefinable ‘value’ of infringed rights, are the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury.” Memphis Community School District v. Stachura, 477 U.S. 299, 308 n11 (1986). The Tenth Circuit has followed this principle and determined that “nominal damages are a mere token, signifying that the plaintiff’s rights were technically invaded even though he could not prove any loss or damage.” Griffith v. State of

82. Because of the jury’s finding that nominal damages were the appropriate remedy, Professor Churchill’s case is different than any other authority that he cites in his Motion for Reinstatement of Employment. In each of those cases, the jury (or the trial court in bench trials) found economic or non-economic losses stemming from the adverse employment action. See e.g. Jackson v. City of Albuquerque, 890 F.2d 225, 226 (10th Cir. 1989) (jury assessed $70,000 in compensatory damages and punitive damages of $70,000); Starrett v. Wadley, 876 F.2d 808, 824 (10th Cir. 1989) (jury assessed $75,0000 in damages); James v. Sears, Roebuck & Company, 21 F.3d 989, 995 n4 (10th Cir. 1994)(jury assessments per plaintiff ranged between $54,074 and $84,728).

Professor Churchill has not cited any case contradicting the United States Supreme Court’s clear statement that an award of nominal damages, rather than any other form of relief, constitutes “the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury.” Stachura, 477 U.S. at 308 n11.

83. I determine that Fyfe v. Curlee, 902 F.2d 401, 406 (5th Cir. 1990), a case that Professor Churchill cited in his reply brief, does not change my determination that I am bound by the jury’s finding when determining whether reinstatement is an appropriate remedy. In Fyfe, the Fifth Circuit Court of Appeals overturned a jury’s verdict in favor of an employer, determined that the plaintiff had proven a constitution violation as a matter of law, and sua sponte ordered an award of nominal damages.

84. The Fifth Circuit did not determine that the award of nominal damages automatically or presumptively entitled the plaintiff to any further remedy. Nor did the Fifth Circuit enter an award of reinstatement as a matter of law.

85. Instead it remanded the case to the trial court for further proceedings and commented that the plaintiff was entitled only “to pursue her case in the district court for reinstatement to her original position, damages for mental anguish and for constructive discharge.” Fyfe, 902 F.2d at 406.

86. In other words, the Fifth Circuit determined only that the plaintiff deserved an opportunity to present evidence that she was damaged in a manner that an award of reinstatement might remedy. The jury in this case already rejected Professor Churchill’s evidence and did not find any such damages.

87. The most analogous case in the Tenth Circuit is Smith v. Diffee damages from the date of termination to the date of the verdict. The trial court refused to award the employee any front pay or other post-verdict relief. The Tenth Circuit overturned the trial court and stated that it “disregarded the jury’s implicit finding that [the plaintiff] would have been employed at least until the date of trial.” It ordered that “on remand, the district judge should make new findings for a front pay award consistent with the jury’s findings.” Smith, 298 F.3d at 965.

88. This case presents the same legal issue, with the only distinction being that Professor Churchill’s jury determined that he had not proven any losses or injuries through the date of trial. Following Smith, if I am required to enter an order that is “consistent with the jury’s findings,” I cannot order a remedy that “disregard the jury’s implicit finding” that Professor Churchill has suffered no actual damages that an award of reinstatement would prospectively remedy.

89. I therefore deny Professor Churchill’s Motion for Reinstatement of Employment and follow the United States Supreme Court’s guidance that “[N]ominal damages . . . . are the appropriate means of ‘vindicating’ rights whose deprivation has not caused actual, provable injury.” Stachura, 477 U.S. at 308 n11. Reinstatement is Not an Appropriate Remedy Where it Will Likely Result in Undue Interference in the Academic Process 

90. Even if the jury’s verdict had determined that Professor Churchill had suffered actual damages, I would nonetheless remain obligated to determine whether reinstatement would constitute an appropriate remedy.

91. As I approach this decision, I must discuss the issue of research misconduct and the processes that the University of Colorado employs for determining whether a professor’s conduct has fallen below minimum standards of professional integrity.

92. The University of Colorado has adopted rules of ethics that govern research. These rules, known as the Administrative Policy Statement on Misconduct in

93. Initially, a faculty body known as the Standing Committee on Research Misconduct: (1) authorized an investigation of the allegations of research misconduct against Professor Churchill; (2) reviewed the results of the investigation; (3) determined that he engaged in multiple acts of research misconduct, including plagiarism, fabrication, and falsification; and (4) recommended his dismissal to the Chancellor. Trial Exhibit 1(K).

94. The University of Colorado (and universities in general) operates somewhat differently than most workplaces. In particular, the Laws of the Regents, create a system of “shared governance” where “the faculty takes the lead in decisions concerning selection of faculty, educational policy related to teaching, curriculum, research, academic ethics, and other academic matters.” Trial Exhibit 3(A).

95. For this reason, when Professor Churchill wished to challenge the initial findings of research misconduct and the Chancellor’s adoption of the dismissal recommendation, he requested a hearing before the Faculty Senate Committee on Privilege & Tenure. The testimony at trial was undisputed that the P&T Committee is a standing committee of the University, elected by the faculty members, and not appointed by the University’s administration. The P&T Committee operates under rules that the faculty have approved. Trial Exhibit 21(I).

96. Professor Churchill received a full hearing, which lasted seven days, before the P&T Committee. He was represented by counsel during portions of the proceedings, was allowed to call witnesses, and was allowed to cross-examine the witnesses against him. Even Professor Churchill’s expert on academic tenure processes testified: (1) that the P&T Committee on Privilege & Tenure employed appropriate rules; and (2) that there was no evidence that the deliberations of the committee members were affected by improper political considerations. Trial Testimony of Philo Hutcheson.

97. At the conclusion of this hearing, the five tenured faculty members of the P&T Committee unanimously determined by clear and convincing evidence that “Professor Churchill has engaged in conduct that falls below minimum standards of professional integrity and that this conduct requires severe sanctions.” The members disagreed on the appropriate sanction, with three members recommending suspension and two members recommending dismissal. Trial Exhibit 21(F). Ultimately, the University’s Board of Regents adopted the minority recommendation and dismissed Professor Churchill.

98. Professor Churchill contends that the jury’s verdict constitutes the jury’s rejection of the P&T Committee’s decision that he engaged in research misconduct, but there was no such finding by the jury. The jury determined only that the University did not prove that a majority of the Regents would have voted to dismiss Professor Churchill in the absence of his political speech. That is a very different question than whether Professor Churchill engaged in research misconduct, which remains the province of the University’s faculty.

99. The P&T Committee’s determination goes to the heart of why reinstatement is so problematic in this case. The United States Supreme Court has determined that “the four essential freedoms” of a university are “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265,

312 (1978) (citing Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957)( Frankfurter, J. concurring).

100. At the evidentiary hearing on the Motion for Reinstatement of Employment, Professor Churchill and the incoming Chair of the Ethnic Studies Department (who would be Professor Churchill’s direct supervisor) both testified to the effect that they could not accept P&T Committee’s judgment defining the appropriate standards of scholarship or its unanimous conclusions that Professor Churchill had repeatedly violated them.

101. Because of this fundamental disagreement, I would be forced to reinstate Professor Churchill under circumstances where the normal scholarly processes, such as annual reviews and post-tenure reviews, become unreliable. If I granted reinstatement I believe there is a substantial likelihood that there would be future disputes about the propriety of Professor Churchill’s academic conduct, as well as the Department of Ethnic Studies’ ability to evaluate the probity and veracity of his scholarship. Those disputes would necessarily raise the question of whether the University has retaliated against Professor Churchill, especially given Professor Churchill’s counsel’s post-verdict statements, such as, “Anything that is deemed retaliatory is another lawsuit. If they look at him cross-eyed, they could very well end up back in court.” Exhibit F to Brief in

Opposition to Motion for Reinstatement of Employment.

102. Although Professor Churchill may disagree, the University of Colorado’s ability to define the standards of academic conduct is a decision that properly resides in bodies like the Standing Committee on Research Misconduct and the P&T Committee, not in the courts. I fully understand the concern, expressed in the statement of the present and former Chairs of the Arts and Sciences Council, that “an order restoring Churchill to full standing as a faculty member . . . will effectively negate the principle of autonomous faculty control over standards of performance and membership.”

Reinstatement Hearing Exhibit GGG.

103. Under these circumstances and recognizing that the University’s faculty must have the ability to define the standards of scholarship, I am persuaded that reinstatement is not an appropriate remedy in this case based upon the Tenth Circuit’s reasoning in Acrey v. American Sheep Industry Association, 981 F.2d 1569, 1576 (10th Cir. 1992), in which it affirmed a trial court’s denial of reinstatement of a dismissed employee on the following grounds:

The record contains examples of sharply conflicting evidence about specific incidents reflecting on plaintiff’s job performance and treatment. At best, these illustrate a poor working relationship between the parties; at worst, an absence of mutual trust. The district court’s decision that a productive and amicable working relationship between the parties was not feasible is supported by the record and hence not an abuse of discretion.

36

The same “sharply conflicting evidence” about Professor Churchill’s job performance and the fundamental disagreements between the parties lead me to conclude that “an absence of mutual trust” makes reinstatement unfeasible.

104. Thornton v. Kaplan, 961 F.Supp. 1433, 1435-36 (D. Colo. 1996) also serves as guidance in my determination that reinstatement is not appropriate. In that case, a college professor prevailed in a lawsuit against his employer. The question was whether the trial court should reinstate the professor to a tenured faculty position. Instead of evaluating the potential for successful reinstatement in the vacuum of the professor’s post-judgment statements, the trial court looked at the history of interactions between the parties and the realities of the higher education workplace, from which he concluded:

In this case, there appears to be a complete absence of mutual trust which would foster collegial relationships and the ability to participate in collaborative projects that are typical in the academic community. Furthermore, this Court believes that the actual remedy sought by plaintiff, reinstatement with tenure, would entangle this Court excessively in matters that are left best to academic professionals.

Thornton, 961 F.Supp. at 1439-40. I conclude that reinstating Professor Churchill would entangle the judiciary excessively in matters that are more appropriate for academic professionals. In making this decision, I give considerable weight to the United States Supreme Court’s recognition that “considerations of profound importance counsel restrained judicial review of the substance of academic decisions.”

37

Reinstatement is Not Appropriate Where the Relationship Between the Parties is Irreparably Damaged

105. The Tenth Circuit also instructs that trial courts may deny reinstatement when, as “a practical matter, a productive and amicable working relationship would be impossible” or “the employer-employee relationship has been irreparably damaged by animosity caused by the lawsuit.” Anderson v. Phillips of Michigan. v. Ewing, Albuquerque, Employment; administration and witnesses as “the string of unprincipled liars the university called toEmployment; people under a bridge would be far more intellectually sound and principled than anything I’ve encountered at the university so far.” Exhibit AA to Brief in Opposition to Motion for Reinstatement of Employment;to Brief in Opposition to Motion for Reinstatement of Employment See Denesha Petroleum Company Communications, Inc.

106. I recognize that an employer’s unilateral hostility to an employee, by itself, should not normally serve as a basis to deny reinstatement. Jackson v. City of  Churchill’s statements demonstrating his hostility to the University. His statements illustrate that reinstatement, as a practical matter, is not likely to create productive and amicable working relationships. Anderson, 861 F.2d at 638.

107. These reported statements include: (1) Professor Churchill’s postverdict reference to the University as having “degenerated to a not very glorified vo-tec, a trade school.” Exhibit H to Brief in Opposition to Motion for Reinstatement of  the stand…” Exhibit F to Brief in Opposition to Motion for Reinstatement of faculty as the “ostrich factory,” presumably with their heads buried in the sand. Exhibit V

108. I am also concerned by Professor Churchill’s filing and support of retaliatory complaints against members of the committee that investigated him, particularly after the P&T Committee had validated the findings of research misconduct.

Professor Churchill had an opportunity to contest these findings, but chose to file retaliatory complaints when he was unsuccessful. Trial Exhibits 16(D), 16(C), 16(F).

Professor Churchill acknowledged at the evidentiary hearing that he also filed a research misconduct complaint against a professor at the law school for strategic reasons related to this lawsuit. Trial Exhibit 25-229. While Professor Churchill was within his rights to file and support these complaints, his actions further demonstrate his level of hostility. There is only a miniscule possibility that his return to the University will be amicable and productive.

Reinstatement Will Impose Harm Upon Others

109. Because reinstatement is an equitable remedy, I must also consider potential harms to innocent third parties. See Ford Motor Company, v. EEOC, 458 U.S. 219, 239 (1982) (stating that trial courts may consider the rights of “innocent third parties” when considering equitable remedies); Lander v. Lujan, 888 F.2d 153, 157 (D.C.Cir.1989) (stating that “[i]t may well be appropriate, perhaps even required,” that a district court consider the impact of reinstatement upon other employees).

110. The University’s P&T Committee, using processes that Professor Churchill’s expert deemed appropriate and without any evidence of improper political considerations, determined that Professor Churchill engaged in repeated and deliberate acts of research misconduct, including acts of plagiarism, fabrication and falsification.

111. The evidence was credible that Professor Churchill will not only be the most visible member of the Department of Ethnic Studies if reinstated, but that reinstatement will create the perception in the broader academic community that the Department of Ethnic Studies tolerates research misconduct. The evidence was also credible that this perception will make it more difficult for the Department of Ethnic Studies to attract and retain new faculty members. In addition, this negative perception has great potential to hinder students graduating from the Department of Ethnic Studies in their efforts to obtain placement in graduate programs.

112. In addition to these harms, I also fully understand the concern, expressed in the statements of the present and former Chairs of the Arts and Sciences Council, that “any external action to return Churchill to the faculty will inevitably weaken the capacity of University of Colorado faculty to hold errant or dishonest colleagues to account in future cases of academic misconduct” and “make it far more difficult to hold students to high standards of honesty in research and writing.”

 Reinstatement Hearing Exhibit GGG

. The Chair of the Arts & Sciences Council represents more than 750 faculty members of the College of Arts & Sciences. I find this a compelling argument against reinstatement.

113. In weighing the potential harms of reinstatement against the potential benefits of reinstatement, I must consider whether denying reinstatement will effectively prevent Professor Churchill from exercising his First Amendment rights. The evidence at hearing was uncontested that Professor Churchill continues to engage in a broad range of scholarly activities. Professor Churchill testified that his website accurately described his activities since leaving the University of Colorado:

Ward Churchill continues to teach, speak, and write books. In 2007, at student request, he taught a voluntary class at CU, much to the administration’s dismay. Since the “controversy” began, he has given over 50 well-attended and highly praised public lectures. He has written several articles on academic freedom, and is in the process of finishing several books.

In short, Professor Churchill continues to publish articles, write books, give paid invited lectures at other institutions, and even give lectures on the University of Colorado campus. He described that “there are lots of venues in which you can teach and interact.”

Exhibit V to Brief in Opposition to Motion for Reinstatement of Employment.

114. I also do not find that reinstatement is necessary to prevent a “chilling effect” on the University of Colorado’s campus. There was no credible evidence that any faculty member at the University of Colorado has refrained from academic or professional activities as a result of the events related to Professor Churchill.

Professor Churchill’s witnesses at the evidentiary hearing, including his most visible an consistent supporters, could not identify any specific retaliation against them or any other controversial faculty members.

115. On balance, I conclude that the potential harms require me to deny reinstatement, particularly when it has the potential to harm students and faculty who played no role in the decision to terminate Professor Churchill’s employment. The benefits of reinstatement are not sufficient to outweigh these harms.

 Front Pay is Not an Appropriate Alternative Remedy

116. Having determined that reinstatement is not an appropriate remedy, I will consider whether front pay is an appropriate alternative. “Although front pay sometimes is appropriate when reinstatement is not possible, it is not a mandatory remedy.” Starrett v. Wadley, 876 F.2d 808, 824 (10th Cir. 1989).

117. In considering front pay, I continue to follow the Tenth Circuit’s guidance that “in fashioning equitable relief, a district court is bound both by a jury’s explicit findings of fact and those findings that are necessarily implicit in the jury’s verdict.” Bartee, 374 F.3d at 910. In the absence of any actual damages that an award of front pay would remedy, I determine that front pay is not appropriate.

118. Even if there were evidence of actual damages, however, I would determine that front pay is not an appropriate remedy. In considering front pay, I may consider the discharged employee’s duty to mitigate. Thornton, 961 F.Supp. at 1438-39.

119. Professor Churchill’s own statements during the trial established hat he has not seriously pursued any efforts to gain comparable employment, but has instead has chosen to give lectures and other presentations as a means of supplementing his income. Reportedly, he even “received a few job offers” that he declined to pursue.

Exhibit V to Brief in Opposition to Motion for Reinstatement of Employment.

Under these circumstances, I do not believe an award of front pay is appropriate.

 42 attempt to obtain comparable employment”); West v. Nabors Drilling USA, Inc.330 F.3d, 379, 394 (5th Cir. 2003) (reversing award where “apart from obtaining comparatively low-paying work with two companies, [the plaintiff] did not seek any other employment and did not attempt to find substantially equivalent employment”).

120. Based on the foregoing, it is hereby ORDERED that Professor Churchill’s Motion for Reinstatement of Employment is DENIED. Further, I find that front pay is not an appropriate remedy in this case.

SO ORDERED this 7th day of July, 2009.

BY THE COURT:

Larry J. Naves District Court Judge

UPDATED JULY 9, 2009

Professor Churchill won a wrongful termination suit which apparently was ignored by a hack judge Larry Naves. The jury verdict in April decided he was fired not for academic-research misconduct but for a fiery article published in the wake of the 9/11 attacks. The judge did not even address substanitally the issue of academic freedom which was certainly a core issue in this inquisition. Academic freedom was eviscerated by both the University of Colorado and the criminal justice system despite a temporary lull in the inquisition with the courageous jury verdict and nominal award. The judge’s argumentation was that C.U. and Ward Churchill were irreconcilable and that his presence would contribute tension and disruption to the Boulder campus. This essentially gives a “hecklers’ veto” to the university. The issue is not one of equipoise but justice; the issue is not whether to tolerate only consensus academicians who teach without controversy but to permit critical thinking and even controversial pedagogy in the classroom; the issue IS whether a democratic society can tolerate a tenured faculty member at professor rank being fired for an article which attempted to balance the 9/11 fury at Al Qaeda with a call for introspection and the meaning of a glutinous, bureaucratic capitalism.

Persecuted Professor  of Ethnic Studies Ward Churchill: denied academic freedom and 1st amendment protection of free speech.

When I was supended for an anti-infanticide email for referring to the military’s “baby-killing tactics of collateral damage,”–an accurate depiction of their mass murder I might add– I could have cared less whether the university wanted me to return or whether my reunion would be disruptive. Disruption is good for a university; chaos is purification when it leads to truth and justice. Calm normalcy is the poison of conformity and has no place in academia. My job was and is to teach history and political science and do it well without apologies or coercion in a nation that proclaims its love of democracy and free speech only when it suits its antidemocratic, war criminal ends. The case of Ward Churchill, despite his imperfections and egregious scholarly tactics, is proof that freedom of speech belongs to a narrow group of academic conformists who do not challenge the mantra of American exceptionalism.

Also I could care less whether Ward is an Anglo or Native American. Frankly folks can identify with whomever they wish. I think it salubrious that one would identify with a minority group as opposed to “passing.” Since all humans emanate from a common ancestor, there is probably a little biological corpus that we all share with one another.

29 minutes ago

DENVER (AP) — A judge has refused to reinstate a University of Colorado professor who was fired on plagiarism charges after he likened some Sept. 11 terrorist attack victims to a Nazi leader.

If it stands, Tuesday’s ruling means Ward Churchill cannot return to the classroom even though a jury ruled in April that his firing was politically motivated.

Churchill wrote an essay after the 2001 attacks calling the World Trade Center victims “little Eichmanns,” a reference to Holocaust architect Adolf Eichmann.

The university fired Churchill in 2007 on the plagiarism charges and other research misconduct allegations. None of the allegations were about the Sept. 11 essay.

Churchill’s attorney didn’t immediately return a call. University officials say they would issue a statement later.

Copyright © 2009 The Associated Press. All rights reserve

Clark University which was looking down a barrel of shame has reversed itself and is allowing Dr Finkelstein to speak as a guest of Students for Palestinian Rights on Monday, April 27. President John Bassett’s Clark’s shameless, pusillanimous revocation of a speaking engagement had barred him recently due to the concern about hurting feelings of those who want to silence critics of Israel and genocide in Gaza and forced population removals in the West Bank. Finkelstein is to be speak on the carnage and violation of the laws of war in besieged Gaza. Bassett’s reversal should be acknowledged and noted.

Perhaps Clark’s reversal was reaction to the protest by ACLU and concerned scholars who are resisting the taboo of discourse concerning the State of Israel. This taboo is a major threat to academic freedom, human rights and critical thinking. It is a cancer that is spreading throughout academe and it must be challenged, defeated and dishonoured for what it is–authoritarian, bullying censorship seeking an undemocratic ideological monopoly of higher education in the United States. There are other ideological assaults on academic freedom besides those of the Israel Lobby but prudence dictates a robust challenge to any and all actions intended to restrict academic freedom.

Those of you in the Worcester, Mass. area go to the lecture and support the persecuted professor’s right to speak. Hopefully, DePaul University that dishonoured itself and frankly all of higher education in denying Dr Finklestein and Mehrene Larudee tenure, will take notice that one institution, Clark U., has ultimately reversed a draconian effort to censor the prophetic wisdom of Dr Finkelstein.

From: Committee to Defend Academic Freedom at UCSB
PLEASE DISTRIBUTE WIDELY

Dear colleagues,

UCSB has become the latest front in the war against Academic Freedom. Professor William I. Robinson, a Sociology and Global Studies professor at the University of California, Santa Barbara, has been attacked by the Anti-Defamation League and two of his former students. In January of this year, he forwarded an email condemning the Israeli attacks on Gaza. The email contained an editorial by a Jewish journalist condemning Israel’s actions in Gaza as well as juxtaposed images of Nazi atrocities with congruent images of Israeli atrocities against Palestinians. The email was an optional read for students, intended to spark conversation by relating contemporary events to conceptual ideas discussed in class.

 
One week later, the ADL wrote him a letter charging him with anti- Semitism and sundry violations of the Faculty Code of Conduct (none of which were coherent claims). Another week passed, and the Academic Senate Charges Officer then notified him that two of the students in the class to which he circulated the email had filed complaints against him

The complaints are that 1) critique of Israel is evidence of anti- Semitism and 2) the Israeli-Palestinian issue should not be discussed in a class on Globalization.

 
This case has already escalated way too far. Throughout the process, the Charges Officer violated several elements of the charges procedure, shirked his responsibilities, and ultimately acted as a co-complainant by fabricating charges that were not raised by the students. The charges have reached the Committee on Committees, which is now in the process of convening an ad hoc Charges Committee to assess the complaints against Professor Robinson
Based on patently absurd and malicious claims, the charges should have been dismissed out of hand from the beginning.

Further consideration of the charges by the Academic Senate serves only to sanction politically-motivated attacks on academic freedom. The longer this case is pursued, the worse its chilling effect; it will spread fear among those who wish to present controversial and critical subjects. Even though the original complaint is regarding Israel/Palestine, the rights at stake extend beyond this specific topic. Academic freedom is a right that enables scholars to express diverse perspectives over contentious topics, free from the intimidation of political repression campaigns.

If the case against Professor Robinson continues to go forward, it will lead down a slippery slope that may expose academics to repression tactics for addressing controversial issues such as stem cell research, evolution, feminism, LGBT rights, etc. It is incumbent upon members of the UCSB campus and the broader academy to roundly oppose this silencing campaign.

 
This is an obvious attack on Professor Robinson”s academic freedom, one that ominously recalls similar campaigns against other critics of Israel across the nation. This is part of a broader campaign to automatically vilify and attack any and all critiques of Israel’s policies and practices through unfounded use of the term “anti-Semitic.” A critique of the Israeli state, its policies, and the leaders responsible is not and should not be considered an affront to Jewish people as a collective, the Jewish religion, or Jewish heritage.

In fact, conflating the state of Israel with the Jewish people essentializes the assorted political opinions of a diverse religious group by reducing them to the set of policies espoused by the prevailing regime.
We need your help! Please scroll below and follow the instructions to 1) email the UCSB Chancellor and responsible authorities on campus to express your outrage and register your protest, and 2) sign the petition
Please visit our website for more information on the case, including continuing updates, at: http://sb4af.wordpress.com

If you wish to contact the student campaign, please email: cdaf.ucsb@gmail.com

Thank you for your time, Committee to Defend Academic Freedom at UC Santa Barbara

 ***

Send an Email: The e-mail should be addressed to UCSB Chancellor Henry Yang and cc’d to the following faculty and administrators involved in the case. Please copy and paste the addresses

Cary sent this to me via e-mail

Feel free to make any use of the following:

DuPage’s new policy includes many unproblematic elements, but it also incorporates numerous poison pills that can easily be used to undermine academic freedom. People, for example, certainly deserve respect, but not all ideas do. It is not the business of a university to declare that certain questions should be considered “unsettled.” It is the job of academic disciplines to decide such matters for themselves. Thus it is not “ideological indoctrination” to expect that students master the theory of evolution or the idea that gender’s meanings are socially constructed. Nor is it the institution’s right to [determine] what matters count as “controversial” and what issues merit “unbiased” treatment. Few things, moreover, are as stifling to free inquiry as a demand that invited speakers represent a balanced spectrum of opinion. Even the requirement that faculty show “appropriate restraint” in arguing a position, seemingly reasonable on the surface, in fact undermines the tremendous educational benefit that can be gained from well informed but passionate advocacy. This policy is a disaster for education in a democratic society.

Cary Nelson

President American Association of University Professorsa

This is all too common when universities cancel events to preserve the public relations’ image of an institution. President  John Bassett is just the latest example of an execrable administrator who eagerly sacrifices academic excellence and the pursuit of truth to pacify the thought police of the Israel Lobby and other groups who support an Israel Can Do No Wrong Policy. President Bassett is a disgrace to academia, a disgrace to free inquiry, an enemy of critical thinking, a violator of A.A.U.P. principles on outside speakers and a coward who should resign and accept the opprobrium of enlightened people everywhere. The lesson of DePaul’s inquisition against Professors Finkelstein and Mehrene Larudee is not more repression but less and not more refusal to entertain disparate ideas but less. Administrators generally cannot be trusted to enforce and lead on issues of academic freedom and intellectual diversity. Many have to be watched, prodded, and driven from office by faculty and students in order to preserve the academic viability of an institution. NOTE: “Bassett” is frequently misspelled “Basset” as seen in the press and on other venues engaged with this travesty. I went to the Clark University website and the president’s surname is “Bassett.”

John Bassett (President, Clark University) wearing the tuxedo!

Clark University President John Bassett Cancels Finkelstein

04.09.2009 | Original
Finkelstein comments: Part of the Clark University-Boston Globe disinformation campaign is the pretense that I was scheduled to speak on the Nazi holocaust. In fact I was scheduled to speak on the Gaza massacre. Isn’t it too perfect that Clark was using The Holocaust as a pretext to silence criticism of Israel?

The Scarlet – “Letters To The Editor”

04.09.2009 | The Scarlet
Bassett Makes Statement:

To the Editor: As some members of the campus community know, I have told the students involved with the Clark University Students for Palestinian Rights (CUSPR) that a planned talk by Professor Norman Finkelstein will not take place this semester. The University remains committed to inviting a wide range of speakers to encourage diversity of opinions on controversial topics. My decision was predicated on its untimely and unfortunate scheduling. The University began planning for the First International Graduate Students’ Conference on Holocaust and Genocide Studies a year ago. While I do not believe that the students who invited Mr. Finkelstein to campus intended it as an affront to those planning the conference, in the eyes of many in the Clark community and our invited guests, it seems to be just that. It is possible that our understanding of the Middle East conflicts would be enriched by conversations with Professor Finkelstein. It is my judgement, however, that having Professor Finkelstein speak on the same evening as our planned conference would only invite controversy and not dialogue or understanding. By this letter, copied also to the Chair of the Faculty and the President of Student Government, I am asking the campus community — faculty, staff, and students — to engage in dialogues about the right breadth at Clark for visiting speakers on controversial topics, about related matters of scheduling as raised in this case, and about this particular case. I will consult with faculty, staff, and students right after Fall Break in early October and report back to The Scarlet on those discussions. After those discussions have taken place, I will be happy to discuss with interested students the appropriateness of an invitation to Mr. Finkelstein.

If you would like to express your opinion to President Bassett on his decision to cancel my lecture, you can reach him here:

presidentsoffice[at]clarku.edu, or through Clark University President’s Office contact page.

Please forward your letter to Normangf[at]hotmail.com for posting on this website.

American Civil Liberties Union (ACLU) Weighs In on Clark Cancellation

04.10.2009 | ACLU (pdf)

American Association of University Professors  ILLINOIS 2009 SPRING CONFERENCE

2009 SPRING CONFERENCE AT ROOSEVELT UNIVERSITY

Featured Speaker: GARY RHOADES, GENERAL SECRETARY OF AAUP

Following Gary Rhoades, a panel discussion on the topic of transparency in academia, including tenure decisions, governance, and policy. Panelists will represent a variety of higher education institutions in the Chicago area.

The AAUP IL business meeting will follow the panel discussion.
Elections for council officers and members will take place.

Roosevelt University is conveniently located at 18 S. Michigan Ave, close to Millenium Park and a few blocks from the ‘El’, Metra trains, and bus station.

The conference will take place on the 3rd floor Commons Room.

Conference will begin at 1:30 sharp. April 18!

PLEASE FORWARD THIS MESSAGE TO YOUR COLLEAGUES

For information call Lee Maltby at 773-878-3978, or email lmaltby@staugustine.edu
Lee Maltby, Secretary, AAUP-IL http://www.ILAAUP.ORG

This message was sent on behalf of the Illinois State Conference by the national AAUP office.

Cary Nelson, president of A.A.U.P., has called for the reinstatement of Professor Ward Churchill in a one-paragraph blog post in the New York Times. Why A.A.U.P. has chosen to wait after two years of an obvious persecution of a professor and to use a brief blog post to declare this policy is somewhat disappointing. Yet hopefully we will see a robust A.A.U.P. defence of  Ward’s academic freedom and actively engage this matter publicly in its own media and internal Committee A response and recognise that to be silent is to lie. I am hopeful this announcement represents official A.A.U.P. policy which subsequently precipitates robust action:

I agree with Professor Fish that the disputes over Ward Churchill’s work should have remained in traditional scholarly venues and not been made the subject of disciplinary hearings. Ward Churchill should be reinstated as a faculty member at the University of Colorado.

Cary Nelson
AAUP President

— Cary Nelson

Dr Nelson was responding to a surprising Stanley Fish op-ed that supported Mr Churchill’s reinstatement and condemned the “circus” that, under the cover of academic misconduct, expelled him in 2007 from the academy for his 9/11 progressive views. I also posted a blog response in the New York Times.

146. April 6, 2009 1:19 pm Link

Unjustly persecuted professor Ward Churchill waves a dollar after a Denver jury sided with him in his civil suit against the University of Colorado over violation of academic freedom and First Amendment rights. (Paul Aiken, Daily Camera ); From Denver Post, April 3, 2009

While Roger Bowen, former General Secretary of A.A.U.P., can trash Professor Churchill in the Wall Street Journal and claim he does not merit academic freedom protection, an impartial jury argued he does. Dr Bowen in a disgraceful and unseemly letter, claimed Mr Churchill’s hiring and promotion up the various ranks was due to his status as a “provocateur.” Such a reckless, UNPROFESSIONAL charge is an insult to the various review committees that monitored the professor’s publications, teaching and service and is totally unsubstantiated by any evidence. And this calumny from a former General Secretary of the American Association of University Professors? How shameful and egregious.

I know the WSJ loves to print articles that savage and recklessly charge progressive professors. They wrote two editorials calling for my suspension and sanctions in 2002 and never even allowed me to respond. So the Bowens of this world, who were cashiered from A.A.U.P., now become the headhunters for the far right. Well, Dr Bowen, this courageous Colorado jury did not agree with you.

I have written for over a year and  a half that like myself, when I was suspended in 2002 for an anti-war e-mail, it was public rage over political ideology that was the primary reason for Churchill’s dismissal. Yes he did commit academic misconduct but such an airing of these issues would not have occurred had governors, right-wing press elites and pusillanimous university presidents not wanted “to fix the problem.” I do not know if Mr Churchill’s publishing transgressions merited firing; I suspect they did not but the lesson here is simple: When a university gangs up on an academic for unpopular and unconventional speech, and then removes him from a tenured position, it better make sure its own house is in order.

Looking forward, I hope Mr Churchill will return to C.U. as a tenured full professor in Ethnic Studies. If the university ignores this jury verdict, then hopefully it will be forced to restore the professor through other legal remedies. Since he was fired for his beliefs and not his research shortcomings, according to the jury decision, he must be allowed to return to teaching at the university beginning this fall.

$1 win for Churchill

Failing to protect Ward Churchill’s free speech will cost the University of Colorado – at least $1.

The former ethnic-studies professor won his civil case against CU on Thursday after a unanimous jury found he was fired in retaliation for his controversial essay about the Sept. 11, 2001, attacks.

But the jury awarded Churchill only the paltry amount in damages, allowing both sides to claim some measure of victory in a four-year battle pitting free speech and tenure against the value of academic purity.

Churchill’s attorney, David Lane, lauded the jury’s decision as a victory for free speech.

“I can’t tell you how significant this is,” Lane said. “There are very few moments that give the First Amendment this kind of life.”

CU president Bruce Benson said the small monetary damages show how much the jury believed Churchill.

“While we respect the jury’s decision, we strongly disagree,” he said in a written statement. “It doesn’t change the fact that more than 20 of Ward Churchill’s faculty peers on three separate panels unanimously found he engaged in deliberate and repeated plagiarism, falsification and fabrication that fell below the minimum standards of professional conduct.”

Former Gov. Bill Owens, who may have started the whole affair with a scathing indictment of Churchill’s essay and a demand for his firing, said the verdict was not a victory for the professor.

“I think the $1 in damages accurately reflects the jury’s appreciation for Ward Churchill’s warm and endearing personality,” Owens said.

Further damages possible

Denver Chief District Judge Larry J. Naves will decide in a separate hearing whether the former Boulder professor can return to his job or receive “front pay” for future years he could have worked at CU.

Lane says he will file a motion to recover legal fees for hundreds of hours of work he and co-counsels Qusair Mohamedbhai and Robert Bruce put into the case – but he deferred questions about a dollar amount.

“We work cheap,” he said. Still, the bill, if assessed to CU, is likely to be well into seven figures.

Ken McConnellogue, a spokesman for CU, said the university is looking at all options regarding an appeal to the verdict, legal fees and Churchill’s reinstatement.

“We’ll cross that bridge if we get to it,” he said of allowing Churchill back on campus.

Lane said CU can’t retaliate against Churchill again by giving him a shoddy assignment on campus or a substandard position or he’ll sue again.

Churchill hugged his attorneys after the verdict was read. CU attorneys Patrick O’Rourke and Kari Hershey shook hands with Churchill and his attorneys before leaving the courtroom without making a statement.

Churchill briefly spoke outside the courtroom and said, “It took four years. It took a while. And it was quick, it was justice.”

CU “has been exposed for what it is,” Churchill said.

“It was found by a jury that I was wrongly fired,” he said. “They not only violated my rights, but my students’ rights and the community’s rights.”

Churchill said he was satisfied with a $1 judgment and said his case was not about money.

“Reinstatement, of course,” he said. “I did not ask for money. I asked for justice.”

Churchill thanked his family and his supporters and his lawyers. He also blasted his detractors, including KHOW 630 AM radio talk show hosts Dan Caplis and Craig Silverman and former Rocky Mountain News editorial page editor Vincent Carroll, now a Denver Post columnist, who Churchill said “tried to shape public consciousness in a false fashion.”

Churchill excused himself from the crush of news cameras and said he wanted to “get some silence and repose.”

About two hours before the verdict was read, jurors asked the judge questions that seemed to indicate one of them was holding out on how much money to award Churchill.

The jury of four women and two men declined to discuss their verdict, walking past reporters under escort from sheriff’s deputies.

“Little Eichmanns” reference

Churchill’s essay, “Some People Push Back: On the Justice of Roosting Chickens,” became national news in January 2005 as he was set to make a speech at Hamilton College in New York. A student found the essay, written on Sept. 12, 2001, and protested Churchill’s appearance.

Churchill said the speech was intended to criticize America’s economic and foreign policies. In the essay, he compared some of the victims in the World Trade Center attack to “little Eichmanns” after Nazi Adolf Eichmann, who engineered the destruction of the Jews in World War II.

Owens, several CU regents, and hosts of cable and talk radio shows all called for him to be fired from CU because of his comments.

CU launched an investigation to determine whether that essay was protected speech. Once Churchill was in the spotlight, allegations surfaced that he had committed plagiarism or academic misconduct in other writings, and another series of investigations was launched. A review of his work led to a vote by CU regents in 2007 that the tenured professor be fired.

CU counsel O’Rourke argued that the university fired Churchill solely because he had engaged in fabrication, falsification and plagiarism in some of his writings on American Indians. O’Rourke told the jury that Churchill’s termination had nothing to do with the 9/11 essay.

But Lane told the jury there is no way his client would have lost his job from CU had it not been for the “howling mob” at the university gates who wanted him gone because of the essay.

Felisa Cardona: 303-954-1219 or fcardona@denverpost.com Staff writer Lynn Bartels contributed to this report.

What’s next

A decision on the job. Denver Chief District Judge Larry J. Naves will decide whether Churchill can return to his job or receive “front pay” for future years he could have worked at CU.

Northeastern Illinois University Provost Lawrence P. Frank

Dr Lawrence P. Frank, provost  and vice president for academic affairs at N.E.I.U., was dean of the School of Arts and Sciences at St Xavier University where I teach. He left for the provost job at N.E.I.U. in Fall 2002. In Spring semester of 1996 during a job-search departmental vote, Dr Frank repeatedly raised the issue of age regarding a woman who had been brought to campus. Frankly I don’t think school deans should be voting within departments on a job search. He was tenured in the department at the rank of professor but was not a department faculty member because was reassigned to other duties. This person basically got TWO votes: one as a faux faculty member and the other as dean. Just arrogant and outrageous!!! 

Dr Frank insisted there were not enough young people in Arts and Sciences and was emphatic in wanting to hire a younger candidate than the woman. I aggressively addressed questions about the propriety, if not legality, of discussing this aspect of a candidate’s profile. He shrieked at me with vehemence and rage that I would make the charge of ageism. But that is what it was, pure and simple! I have never forgotten this incident and to this day churn at the thought of being rebuked in such an abusive and disrespectuful manner in front of my department colleagues, for daring to make an ethical and warranted challenge to an out-of-control, ageist administrator. I can assure you if I ever again encounter such administrative misconduct and egregious violations of civil rights law, I will use all appropriate means to engage such excess. I think Dr Frank should have been reprimanded and fired from St Xavier for this single incident of palpable and irrefutable age discrimination in employment practices.

http://steynian.files.wordpress.com/2008/06/no_free_speech.jpg

The following was sent to me by the distingusihed University of Texas Professor Dana Cloud.

Dear Supporters and Signers (and potential signers and supporters) of Justice for Loretta Capeheart petition. The petition is at
http://www.petitiononline.com/j4lc/petition.html.

I am attaching background information on this case for those unfamiliar with it.

Thank you all for your support and your continued commitment to free speech and academic freedom. As of today, we have 700 signatures, including those of prominent scholars Noam Chomsky and Howard Zinn. Please join them, if you have not, in signing the petition to support Loretta. Also, please forward this call far and wide as you see fit.

There is an emerging front in the struggle for academic freedom. Some university leaders are attacking outspoken faculty on the grounds that university employees have no free speech rights when it comes to criticizing their own institutions. This attack epitomizes Northeastern  Illinois University¹s harassment of justice studies professor Loretta Capeheart, who has been targeted by her administration for her outspokenness for workers¹ rights in a 2004 faculty strike, against the Iraq war, in defense of student protesters, and for increased representation of minority scholars at NEIU. In retaliation, she was denied merited awards and an appointment to chair of her department‹a position to which she was elected. NEIU Vice President Melvin Terrell publicly defamed Capeheart, accusing her without  grounds of stalking a student.

Capeheart is suing Terrell for defamation, alongside NEIU¹s President and Provost {Lawrence P. Frank} for retaliation and violation of her constitutional right to free speech. Incredibly, the administrators¹ response argues that Capeheart, as a state employee, may not sue the University or its officials, contravene their positions, question their conduct, or speak as a faculty member on matters of public concern. Their motion to dismiss the case states that clothed in her authority as a faculty member,² Capeheart criticized University policy, ³even going so far as to disagree with the stated positions of the Provost.² ³It is very middle ages,² Capehart said, ³like the lord vs. the serf.²

Unfortunately, the administration has frightening legal precedent, according to the AAUP.  The Supreme Court¹s 2006 decision in Garcetti v. Ceballos held that state employees are not afforded first amendment protection if they are speaking on subjects relevant to their professional duties; When UC Irvine professor Juan Hong angered University administrators by opposing the replacement of tenure-track faculty by term lecturers, he was denied a merit salary increase. The Court ruled against Hong, citing Garcetti.

However, there is some good news to report on Loretta’s case!  On March 2, 2009, Judge Blanche Manning, U.S. District Court Judge, Northern Illinois District agreed to hear Loretta¹s case despite the university¹s arguments that it was ³futile² for her to claim any right to free speech. Please see the judge¹s comments below.

There is still much to do to guarantee justice for Loretta and to defend our rights to free speech and academic freedom.  We are asking that you  continue to forward the link to the petition to others concerned with academic freedom and urge them to sign on to the petition.  A press conference will be called for the petition delivery to NEIU President Sharon Hahs in April. An announcement will be forthcoming.

Please sign at http://www.petitiononline.com/j4lc/petition.html , and
encourage others to do so.

Thanks again for your support.

Statement from Judge Manning:

“The defendants oppose the amendment on the basis that it would be futile. Specifically, they contend that the First Amendment protects only speech by public employees that addresses matters of public concern as opposed to matters involving their official duties. See Garcetti v. Ceballos, 547 U.S. 410, 417 (2006) (³when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.²) The defendants contend that the speech at issue was not protected by the First Amendment because (i) it addressed university policy, (ii) occurred at university-sponsored events which Capeheart attended as a university employee, and (iii) concerned her official duties. However, as Capeheart argues, the speech also addressed matters of public concern such as discrimination and the ability of students to express anti-war views. At this juncture, without the benefit of a full record including details of Capeheart¹s speech and the nature of the events she attended, it would be premature to determine whether her speech was protected by the First Amendment. Accordingly, futility is not a basis for denying Capeheart¹s motion for leave to amend.” Judge Manning, 3-2-09

Dana L. Cloud Associate Professor Graduate Advisor, Director of Graduate Studies Department of Communication Studies University of Texas 1 University Station A1105, CMA 7.114 Austin, TX 78712

http://uts.cc.utexas.edu/~dcloud

 I feel it is injudicious to separate both the results of an investigation and the motivation for its formation. In Mr Churchill’s case, he was clearly the object of ideological rage and animus stemming from his essay on the 9/11 attacks. While academic misconduct cannot be excused or tolerated which appears to have occurred in some of Mr Churchill’s scholarship, I believe dismissal was excessive. His most egregious offense was to write essays under an assumed name and use those sources as confirmation of some of his work. I think such actions cannot be defended but I also believe an investigation of his scholarship that is motivated by passion and anger is guilty of possible overreaction.

As I have written elsewhere, when state governors involve themselves in personnel matters as was frequent and undeniable in this case, a university is subjected to unwarranted POLITICAL presssure to “fix the problem.” Firing a tenured professor should not be conducted under these circumstances and anticipate there would be no public concern about bias and efforts at ideological cleansing.

Witness: Churchill was not apologetic

Professor Joe Rosse, who led CU’s Standing Committee on Research Misconduct, has testified that the panel was convinced Churchill had plagiarized, falsified and fabricated some of his scholarly writings and had engaged in academic misconduct.

He also testified that he was concerned that Churchill was not apologetic and failed to recognize standards of good scholarship.

Churchill, a 61-year-old former ethnic studies professor at CU-Boulder, sued the university after he was fired in 2007. He believes he was let go because of the political controversy that exploded following an essay he wrote about the Sept. 11, 2001, terrorist attacks.

Over the last two days, jurors have asked questions that appear to challenge CU’s case.

In Colorado, judges may allow jurors in civil cases to submit questions for witnesses. The questions are submitted to Denver Chief District Judge Larry Naves before they are read by him to the witness.

This morning, jurors asked Rosse about the panel’s decision to have a full professor serve on the investigative committee rather than an associate professor who specialized in the specific field of American Indian studies.

“It was not either or. We wanted a person that was both a full professor and with expertise,” Rosse said.

“Did you ever consider anyone else to be chair of the investigative committee after Ward Churchill shared his concern about Mimi Wesson having a bias against him?” a juror asked.

Rosse said he could not remember.

Wesson, a CU law professor chaired the investigative committee and has been accused by Churchill of having a bias against him before she headed the panel.

Wesson denied the allegation when she testified earlier in the trial.

Today’s snowstorm stopped the trial this afternoon and also could cause scheduled testimony to be postponed into next week if the weather remains unsafe Friday.

Judge Naves issued an order about noon to close the courthouse.

Felisa Cardona: fcardona@denverpost.com

I recently appeared on a Gaza Panel and noted the issues of academic freedom and the New McCarthyism as competing values in America. In particular in critiquing Israeli policy toward the besieged Palestinian nation there is a taboo on critical thinking or even scholarly discourse.

I appreciate this rather attractive blog running an excerpt:

http://wardchurchilltrial.wordpress.com/page/7/

Dr. Peter Kirstein has posted his remarks for the Chicago Gaza Panel, including a “naming names of the courageous victims of the New McCarthyism who refused to be silent”. (And one of the best jabs I’ve ever seen at the always/already useless Stanley Fish.)

Spanish philosopher Miguel Unamuno, during the Spanish Civil War, declared in 1936, “Sometimes to be Silent is to Lie.” He directed this remark on his campus of the University of Salamanca, where he had served twice as rector, to the pro-Franco fascist General Milan-Astray, who forced him off campus at gunpoint and placed Unamuno under house arrest. This was a shocking violation of academic freedom which I am sure Stanley Fish, now op-ed columnist of the New York Times, would with characteristic nuance defend.

Unamuno died within two months after suffering a heart attack. In this country professors have been denied tenure, denied promotion, subjected to public vilification, experienced censorship of their books, been prohibited from speaking at previously scheduled events, been suspended, denied the right to teach classes in their specialty, pressured to turn down appointments at universities, and have been fired from both tenure and non-tenure track positions for speaking truth to power about the Israel-Palestinian conflict.

Naming names was used during the McCarthy Era to blacklist and smear supposed communists and internationalists including many academicians. Well I am naming names of the courageous victims of the New McCarthyism who refused to be silent: Norman Finkelstein, Joel Kovel, Terri Ginsberg, Mehrene Larudee, Douglas Giles, John Mearsheimer, Stephen Walt, Nadia Abu El-Haj, Joseph Massad, Ward Churchill and Juan Cole…

The Chronicle of Higher Education has reported on the A.A.U.P. Illinois Confrence letter to the College of DuPage concerning their proposed draconian implementation of David Horowitz, Academic Bill of Rights and their egregious lack of shared governance with its faculty.

http://chronicle.com/news/article/6134/illinois-aaup-protests-proposed-policy-changes-at-college-of-du-page

I am vice president of Illinois-A.A.U.P. and am proud of our participation in this episode which attempts to defer an institution’s effort to enforce conservative ideological correctness in the name of neutrality.

VIA FACSIMILE (630-858-2869)

 March 18, 2009

 Dr. Robert L. Breuder

President

College of DuPage

425 Fawell Boulevard

Glen Ellyn, Illinois 60137-6599

 Mr. Micheal E. McKinnon
Chair, Board of Trustees

College of DuPage

425 Fawell Boulevard

Glen Ellyn, Illinois 60137-6599

Dear President Breuder and Chair McKinnon:

The leadership of the Faculty Association and other members of the faculty at the College of DuPage have sought the advice and assistance of the American Association of University Professors as a result of a series of actions that the administration and board of trustees have reportedly taken over the past year or so. These actions appear to us to raise important issues relating to the role of the faculty in the governance of the institution. Of immediate concern is the proposed new policy manual, extensively revised with no faculty involvement, that is being considered for adoption by the board at its meeting tomorrow. Faculty members have expressed their concern about the trustees’ apparent failure to follow the college’s well-established and board-endorsed collaborative processes of shared governance (set forth in Policy and Procedure 1001) for revising the manual. In addition, they have complained about potential threats to principles of academic freedom contained in some of the proposed revisions of the manual. We are aware of-and commend to your attention-the analysis of these specific provisions that has already been communicated to the administration and the board by the state council of the AAUP’s Illinois Conference.

The Association’s interest in these matters stems from our longstanding commitment to sound academic governance, the principles of which are enunciated in the enclosed Statement on Government of Colleges and Universities, originally formulated in conjunction with the American Council on Education and the Association of Governing Boards of Universities and Colleges. The AAUP adopted the document as policy, and the other two organizations commended it to the attention of their respective constituents. The Statement on Government, which embodies standards widely accepted in American higher education, rests on the premise that appropriately shared responsibility and cooperative action are required between and among the governing board, the administration, and the faculty in determining educational policy and in resolving educational problems within the academic institution. It refers to “an inescapable interdependence” in this relationship which requires “adequate communication among these components, and full opportunity for appropriate joint planning and effort.” It further asserts that “the interests of all are coordinate and related, and unilateral effort can lead to confusion or conflict.” 

 Section 5 of the Statement on Government defines the particular role of the faculty in institutional government, stating in pertinent part:

 The faculty has primary responsibility for such fundamental areas as curriculum, subject matter and methods of instruction, research, faculty status, and those aspects of student life which relate to the educational process. On these matters the power of review or final decision lodged in the governing board or delegated by it to the president should be exercised adversely only in exceptional circumstances, and for reasons communi-cated to the faculty. It is desirable that the faculty should, following such communication, have opportunity for further consideration and further transmittal of its views to the president or board.

 The particular authority and primary responsibility of the faculty in the decision-making processes of the academic institution in these areas derive from its special competence in the educational sphere. It follows from this proposition that the faculty should play an active and meaningful role in the development as well as in the revision of institutional policies in those areas in which the faculty has primary responsibility. Moreover, under the Statement on Government “the governing board and president should, . . . in [all] matters where the faculty has primary responsibility, concur with the faculty judgment except in rare instances and for compelling reasons which should be stated in detail.”

 According to the information we have received, relations between the faculty on the one hand and the COD board of trustees on the other have been marked in recent years by turmoil and growing mistrust. Faculty members report that they have frequently been at loggerheads with the board over various academic policy and governance issues, and they object to what they perceive to be a lack of meaningful consultation with the faculty on key educational policy matters where the Statement on Government calls for the faculty, because of its particular knowledge and expertise, to have primary responsibility. They have complained about what they have described as a pattern of board indifference toward or disregard for the legitimate role of the faculty in institutional decision making and a lack of sensitivity to faculty needs and concerns. They contend that the board of trustees has been unresponsive both to complaints they have made over an erosion of faculty rights and to their efforts to secure the board’s assistance in recognizing the faculty’s proper position in the college’s governance structure. These concerns have culminated in their strong objections to the proposed revisions of the policy manual.  

 If, as we hope is the case, the administration and governing board of the College of DuPage wish to address the faculty’s concerns and reestablish the sense of community and mutual trust that seems to have eroded in the past year and that is vital for any college to be able to fulfill its mission, we believe that they need to develop and sustain a more constructive working relationship with the faculty. From everything we have seen, the faculty seems eager to work with you, but it needs to be assured that it will be afforded an appropriate role in the significant decision-making processes affecting the future health of the institution, as expressly called for in the Statement on Government. In our judgment, if the board were to heed the faculty’s call to delay adoption of the proposed new manual to allow for necessary consultation, it would send a strong and positive signal.

 We appreciate that the information in our possession on which this letter is based has come to us almost entirely from faculty sources at the College of DuPage and that you may have additional information that would contribute to our understanding of the events we have recounted and the issues with which we are concerned. We would accordingly welcome your comments. Assuming the essential accuracy of the foregoing, we hope and expect that the COD board of trustees will address the faculty’s concerns and do so in a manner that is respectful of the principles of shared authority and collegial responsibility as well as the principles of academic freedom that we along with our colleagues on the state council of the AAUP’s Illinois Conference have commended to your attention.   

Sincerely,

B. Robert Kreiser

Associate Secretary

BRK:id

Enclosure

cc: Members of the College of DuPage Board of Trustees [via e-mail]

Professor Nancy Stanko, President, College of DuPage Faculty Association

Professor Walter J. Kendall III, President, Illinois Conference AAUP

Professor Larry G. Gerber, Chair, AAUP Committee on College and University Governance

The following letter was sent by the American Association of University Professors (A.A.U.P.)- Illinois State Council to the Board of Trustees of the College of DuPage. They are considering the adoption of what journalist-author David Horowitz has advocated as the common law for academe: Academic Bill of Rights (A.B.O.R.). Rather it is our opinion an attack on academic freedom, teaching and scholarship. Its adoption will place the College of DuPage beyond the mainstream of educational practices in the United States. More importantly it will diminish the quality of education available to its students which ultimtely are the ones who suffer with the crazed imposition of draconian, ideological polemics to restrict open inquiry.

March 16, 2009

Dear College of DuPage trustees:
 
The state council of the Illinois conference of the American Association of University Professors wishes to express our deep concern about the proposed policy changes reflected in the new Policy Manual for the Board of Trustees. We believe it represents an extraordinary attack on academic freedom, shared governance, and intellectual liberty on campus. We believe that the changes would put the College of DuPage outside the mainstream of colleges and universities in the state and in the country.
 
We recognize that the proposed policy manual makes some improvements over the original proposal in areas such as student publications and educational philosophy. However, there are still many serious threats to academic freedom contained in these policies.
 
The most disturbing proposals  give the administration extraordinary power to ban speakers and protests, ban any discrimination based on “viewpoint or opinion,” and  prohibit “demeaning” behavior. These policies will most certainly create a litigation nightmare for the College of DuPage as censored speakers or disgruntled students and applicants sue for “opinion discrimination.”
 
The sheer number of proposed policies that fail to meet AAUP – recommended standards relating to intellectual freedom is a matter of deep concern to us. The Board of Trustees should drop this effort at wholesale, and unfortunately unwarranted, revision of the campus policies in this manner, and instead begin a process of working with campus constituencies, particularly the faculty to revise individual policies. We also encourage the Board to utilize AAUP statements (available at www.aaup.org) as models for these policies.
 
Below we list in detail some of the objectionable proposed policies and why we believe that they are flawed. We encourage members of the Board of Trustees to contact us if you have any further questions about this issue, and we would be happy to open a dialogue about the College of DuPage Policy Manual.
 
Sincerely,
Illinois AAUP State Council
by Walter J. Kendall III, President
 
Specific analysis of College of DuPage proposed policies by the Illinois AAUP:
 
5-30
“Board members and employees of the College are required at all times to perform their duties in such a manner that they present a proper and ethical image to the community and avoid even the appearance of impropriety.”
Requiring employees to meet an undefined standard of “a proper and ethical image” could easily be abused to punish employees based on “image” alone.
 
5-30
A. 1.
“No Board of Trustee member or employee shall use or permit to be used College equipment, materials, services, or other property for personal convenience, benefit, or profit.”
 
This policy is far too restrictive, and needs to be brought in line with modified policy 15-25 by adding “while working” and removing “convenience.”
 
5-30
A.3.
“No Board of Trustee member or employee shall practice dishonest or demeaning behavior.”
 
This policy is too vague in banning all “demeaning” behavior without defining the term. Certainly, it is not intended to ban satire and humor, even though it can have a bite, so to speak.
 
10-110
“The rights of free speech and lawful assembly do not confer upon those who exercise these rights a license to limit, interfere with, or infringe upon the equal rights of others.”
 
This confusing and unnecessary policy is extremely vague, and should be eliminated.
 
10-110
“The President and/or his authorized representative reserves the right to invite, acknowledge, or deny requests for assemblage as well as the right to control the time, place and manner of the assemblages.”
 
Under the Supreme Court rulings about the First Amendment, there can be reasonable regulations of time, place, and manner. But this does not mean a public college has total arbitrary power over the time, place, and manner of assemblies. Nor can the President be given complete authority to deny requests for assemblies. Only in very rare cases, where public safety is immediately endangered, can a public college prohibit an assembly or protest.
 
10-115
“The President and/or his authorized representative reserves the right to invite, acknowledge or deny requests for outside speakers or programs as well as the right to control the time, place, and manner of the speaker or the program to be presented.”
 
This repeats the same flawed policy that gave the administration absolute power to ban protests.
 
10-115
“No person shall be required to listen to a speaker or participate in a program that he/she finds objectionable.”
 
This policy in effect is the antithesis of education. Education is about the wisdom and skills of the ages, and challenging the students to grow and develop in their mastery thereof. See the further comment in 15-10 below. Certainly, faculty members may require members of a class to listen to a particular speaker, just as they can require students to read a particular book, even if a student finds the views objectionable.
 
10-115
“The President may deny a particular speaker or program on campus if it reasonably appears that such speaker or program would advocate:” followed by a long list of reasons, including “violation of any federal, state or local laws.”
 
Any rule imposing censorship based on guesses about what a speaker might say is a threat to both academic freedom and the First Amendment. The list of historical figures who could be banned under this rule includes all of the Founding Fathers, Abraham Lincoln, and Martin Luther King, Jr. It could be used to justify enormous censorship. For example, because waterboarding is a form of torture and therefore illegal, any member of the Bush Administration who defended waterboarding could be banned under this rule. If someone breaks the law in a campus speech, legal authorities can deal with that speaker. But preemptive, speculative censorship is never acceptable.
 
10-115
“Any expense incurred as the result of scheduling a speaker or program on campus will be the responsibility of the sponsoring individual/group.”
 
This is vague and troublesome in that at other campuses, controversial speakers have effectively been banned by imposing extreme security costs on sponsors. Colleges should not charge student groups for the security required to protect controversial speakers.
 
10-125
“Posting and display of materials on campus shall be governed by the procedures and regulations established by the Office of Student Activities and published in the Student Handbook.”
 
This rule does not establish the First Amendment rights of the campus community to post and display materials.
 
15-10
“The College will not tolerate discrimination and harassment based on an individual’s viewpoint or opinion.”
 
The essence of education is discriminating between truth and falsity. Policy 25-135 declares that a central mission of the College is “the pursuit of truth.” But under policy 15-10, a Holocaust denier could sue the College for not being hired as a history professor, and a creationist could sue for not being hired to teach evolutionary theory. A student with the “opinion” that 1+1=3 could sue if a math professor gave that student a failing grade. No college has ever imposed such a doctrine of total relativism.
 
15-25
“No volunteer, officer or employee shall engage in dishonest or demeaning behavior in the workplace.”

This policy is too vague in banning all “demeaning” behavior without defining the term.
15-170
Among the list of reasons for termination is the vague category of “unprofessional conduct.” This term is vague and not defined.
 
15-335
“Faculty members have a duty to present controversial issues in an unbiased manner which respects their students’ rights to academic freedom to determine for themselves the proper resolution of such issues.”
 
Faculty members should be evaluated on the basis of competence and professional and disciplinary standards.  Many of the revered books of our civilization are “biased”; the great thinkers all had a point of view. This policy, if taken as written, would have prevented Jefferson from teaching our Declaration of  Independence at the College. As we all know, in James Madison’s word we are not “angels” and thus, it is almost impossible to be “unbiased.” Further, it would appear that under this policy, a creationist student could assert the right to disagree with the scientific reality of  evolution in a biology class. This academic freedom policy also omits several important provisions of the AAUP standards for academic freedom, such as the protection of extramural speech.
 
20-5
“The College will also prohibit discrimination based on an individual’s viewpoint or opinion.”

The danger of adding “viewpoint or opinion” to the list of prohibited acts is that quite obviously there are correct and incorrect opinions about reality. Certainly the Professor’s job is to discriminate between them.  Students are in school to learn how to discriminate between them. If they fail to do so, of course they will be “discriminated” against – questioned in class; or get a poor grade, for instance.
 
25-135
“Academic Freedom -The Concept – Academic freedom and intellectual diversity are values indispensable to the American college.”

The inclusion of the term “intellectual diversity” into the  discussion of the philosophical, conceptual, and contractual  meaning of “academic freedom”  is to either add a vague and thus potentially confusing  redundancy, as the word “diversity” is used in other places in the document; or to attempt to change the settled meaning and understanding of the term. Neither is warranted, and the words “and intellectual diversity” should be deleted from this policy.

The Ward Churchill trial begins after his ideologically inspired firing from his tenured professorship at the University of Colorado in Boulder on July 24, 2007. I received these items from Criticalthinking, a progressive organisation dedicated to preserving academic freedom and thwarting militant pro-defence hawks who seek ideological uniformity across academia.

Here are two blogs that will be keeping up w/ the trial: The Ward Churchill solidarity network at http://www.wardchurchill.net/ and The Ward Churchill Trial website created by Ben, one of his ardent supporters:  http://wardchurchilltrial.wordpress.com/.  Today was the trial opening and the beginning of jury selection.  Here are the Denver Post articles written so far: http://search.denverpost.com/sp?keywords=Ward+Churchill&aff=3&searchbutton.x=0&searchbutton.y  =0&searchbutton=Search.  

Dear Friends and WCSN Supporters,

Ward Churchill is suing the University of Colorado because CU fired him on pretextual grounds, in violation of his First Amendment rights. But more importantly, he’s suing because this case will determine how easily schools across the country can purge professors who challenge the status quo.

We need your help! Lawsuits are expensive. We are raising money for legal expenses – /filing fees, deposing witnesses and obtaining transcripts, plane tickets for witnesses outside Colorado, copying and compiling evidence and exhibits.

All donations will go to attorney David Lane and be used only for direct expenses associated with the lawsuit. 

You can donate to the legal fund directly from the WCSN website at www.wardchurchill.net  or 

by clicking here:  

(You do not need a paypal account.)

These are my remaks for Chicago Gaza Panel, February 26, 2009.

Spanish philosopher Miguel Unamuno, during the Spanish Civil War, declared in 1936, “Sometimes to be Silent is to Lie.” He directed this remark on his campus of the University of Salamanca, where he had served twice as rector, to the pro-Franco fascist General Milan-Astray, who forced him off campus at gunpoint and placed Unamuno under house arrest. This was a shocking violation of academic freedom which I am sure Stanley Fish, now op-ed columnist of the New York Times, would with charactristic nuance defend.

Unamuno died within two months after suffering a heart attack. In this country professors have been denied tenure, denied promotion, subjected to public vilification, experienced censorship of their books, been prohibited from speaking at previously scheduled events, been suspended, denied the right to teach classes in their specialty, pressured to turn down appointments at universities, and have been fired from both tenure and non-tenure track positions for speaking truth to power about the Israel-Palestinian conflict.

Naming names was used during the McCarthy Era to blacklist and smear supposed communists and internationalists including many academicians. Well I am naming names of the courageous victims of the New McCarthyism who refused to be silent: Norman Finkelstein, Joel Kovel, Terri Ginsberg, Mehrene Larudee, Douglas Giles, John Mearsheimer, Stephen Walt, Nadia Abu El-Haj, Joseph Massad, Ward Churchill and Juan Cole.

The suffering of Arab peoples must end and perpetrators such as the State of Israel brought to justice before the International Criminal Court. Israel unfortunately is merely the most recent non-Arab nation to dispossess the Arab peoples with approximately 400-500,000 forced out of the Palestine Mandate with the creation of the State of Israel in 1948.

Twenty years later in the 1967 six day War which Israel initiated, despite the gleeful global propaganda of its heroic victory, Israel expelled between 100,000 and 260,000 Palestinians from the newly conquered West Bank, and drove 80,000 Syrians from the Golan Heights. (Mearsheimer, Walt Israel Lobby).

I say the latest non-Arab nation to engage in Muslim ethnic cleansing because The Lausanne Treaty of 1923, yes an actual treaty, required the deportation of 350,000 Muslims from Greece to Turkey. While Christians were also subjected to “population exchange,” no other international treaty has targeted specific peoples for mandatory population uprooting.

The Gaza slaughter is another recent act of state terrorism against a defenceless and abused people. Gaza is a strip of land on the Mediterranean that is one of the most undeveloped and densely populated in the world. It was part of the British Mandate in Palestine after World War I and was occupied by Egypt after the 1948 war and is about 25 miles long and 6 miles wide. Its population consists of 1.3 million Palestinians living in absolute poverty. Israel took control of the region during the Six-Day War in 1967, along with the West Bank, eastern Jerusalem, the Golan Heights, and the Sinai Peninsula which was later returned to Egypt.

When 9,000 Israeli settlers colonised Gaza, they stole one-third of Gaza and the other two-thirds of the enclave was where the huddled masses of Palestinians lived.

Cardinal Renato Martino, head of the Vatican Council on Justice and Peace, recently referred to Gaza as “a big concentration camp.” Imagine a Jewish state, born out of the Holocaust, establishing a concentration camp along its border in this manner.

Norman Finkelstein has referred to Gaza as “Israel’s favourite shooting gallery,” and described the attack as: “Israel targeted schools, mosques, hospitals, ambulances, and U.N. sanctuaries, as it slaughtered and incinerated Gaza’s defenseless civilian population.”

Here are some facts on the ground:

First) There had been a ceasefire negotiated by Israel and Hamas, which has been the democratically elected government of Gaza since February 2006, that was reasonably intact from June 2008 until November 4, 2008. On that date, conveniently timed to coincide with the distraction of America’s presidential election, Israel violated the ceasefire by invading Gaza with tanks and airstrikes, and killing about 5 Palestinians. This led to Hamas’s Qassam rocket attacks on Sderot and other Israeli communities as the ceasefire unraveled leading to the full-scale Dec. 27 Israel invasion.

Second) Fatah, the descendant of the Palestine Liberation Organisation, is the Arab faction that runs the West Bank, under Israeli supervision, the other component of occupied, colonised Palestine. Yet there are strong supporters in both Gaza and the West Bank of the other non-ruling group. The Palestinians are a united people in spirit.

Third) Israel waged a twenty-three day assault from December 27 until January 18, 2009 on a civilian population in a manner reminiscent of the wehrmacht during World War II. The timing was deliberate in that it began under the waning days of the Bush administration which Israel knew would not challenge the invasion and it ended just prior to the Obama inauguration so as not to offend the sensibilities of a possibly somewhat less militant U.S. administration.

Fourth) 1,300 Palestinians were killed including 400 children. Thirteen Israelis died and three were civilian. This is a 100 to one ratio and a shocking lack of both proportionality in which a nation uses excessive force beyond military necessity, and discrimination when a military force deliberately ignores non-combatant immunity. The National Lawyers Guild reported the following incidents from their eight-member legal team that investigated the possibility of war crimes in Gaza:

“We spoke to Khaled Abed Rabbo, who witnessed an Israeli soldier execute his 2-year-old and 7-year-old daughters, and critically injure a third daughter, Samar, 4-years old, on a sunny afternoon outside his home. Two other Israeli soldiers were standing nearby eating chips and chocolates at the time on January 7, 2009. Abed Rabbo recounts standing in front of the Israeli soldiers with his mother, wife and daughters for 5 to 7 minutes before one of the soldiers opened fire on his family.

“We spoke to Ibtisam al-Sammouni, 31, and a resident of Zaytoun neighborhood in Gaza City. On January 4th, the Israeli army forced approximately 110 of Zaytoun’s residents into Ibtisam’s home. At approximately 7 am on January 5th, the Israeli military launched two tank shells at the house without warning killing two of Ibtisam’s children: Rizka, 14 and Faris, 12. When the survivors attempted to flee, Israeli forces shot at them. Her son Abdullah, 7, was injured in the shelling and remained in the home among his deceased siblings for four days before Israeli forces permitted medical personnel into Zaytoun to rescue them. After medical personnel removed the injured persons, an Israeli war plane destroyed the house… The dead remained beneath the rubble for 17 days before the Israeli Army permitted …their…burial.”

The New York Times reported on February 11, 2009 that the Secretary General of the United Nations, Ban Ki-Moon, announced that Israel is blocking needed humanitarian aid from reaching the devastated area. Israel permits only one border crossing into Gaza which can deliver enough daily life-sustaining supplies for only 30,000 people. Ban wants other points of entry to be opened as well. Israel has blockaded the Gazan coast on the Mediterranean and Egypt, which has one border crossing into Gaza, has been reluctant to open that as well.

Israel maintains that Hamas must be disarmed and not allowed to acquire weaponry through tunnels in the south or other means. No other nation in the world is required to have an absence of military self-defence. The Palestinians are basically disarmed anyway. They lack a navy, an army and air force to defend against Israel’s strategic power.

It is interesting there is an absence of international pressure for Israel to reduce its level of military forces. Israel receives about $3 billion dollars in direct assistance each year from the American taxpayer even though Israel is one of the wealthiest nations on Earth with per capita income equivalent to Spain or the Republic of Korea. It receives the most modern US weaponry such as Blackhawk helicopters and F-16 jets which it uses to terrorise defenceless populations.

Israel is the only Middle East state with nuclear weapons and only one of three countries in the world not to ratify the Nuclear Non-Proliferation Treaty of 1968. This mythical notion of a Jewish David surrounded by an Arab Goliath in a hostile region is imaginary at best. While it is more of a democracy than some Arab authoritarian states, its aggression and undermining international peace and security through repeated violations of international humanitarian law are more significant in a global context.

Israel is an officially Jewish state with the Star of David hexagram emblazoned on its flag. America has long been critical of nations that are wedded to an official religion. Our own constitution requires that, “Congress shall make no law respecting an establishment of religion.” The United States is not officially Christian or Muslim or Hindu or Baha’i or Druse or Jewish.

There is an inherent undemocratic character about nations that establish an official religion. While the U.S. has been openly critical of Muslim and Communist states that deny religious pluralism, such criticism is never directed at Israel.

Israel’s population is 7.1 million and 76% Jewish and 24% non Jewish with mostly Muslim Arabs with about 2% Arab Christian.) (CIA Factbook). Their 1.3 million Arabs are treated as second-class citizens: They can’t join the army which means they are denied the generous benefits given to veterans.  (Haaretz 12/20/07)

They can’t marry Palestinian partners and remain in Israel. Marriage could lead to deportation. Israeli law gives official recognition to Jewish cultural institutions but not Arab. Israeli-Arabs have been expelled from their homes in the Negev-a desert area in the south-because they were told they were illegal.

The argument is frequently advanced that Israel and the United States are allies in the war against terrorism. In fact the opposite is the case. A more nuanced and normal relationship with Israel, that is evident in most bilateral relations, would possibly reduce the threat of so-called terrorism. Al Qaeda in particular has declared Palestinian suffering as one of its chief grievances against the U.S. Iran, a supporter of Hamas, also frequently refers to the American lack of balance in its approach to the Israel-Palestinian conflict as a source of tension and enmity.

Israel needs less financial support from the economically ravaged United States and the United States needs less of an Israel-centric Middle East foreign policy. Israel’s existence is not reasonably threatened by the facts on the ground and as the most powerful nation in the region, it can afford to demonstrate more tolerance and less racism in its approach to the Palestinian conflict. United States national security and international peace and justice are ultimately served by a resolution of this conflict that brings justice to the Palestinians, secure borders for Israel, a Palestinian state that is contiguous, viable and truly independent and an end to this carnage.

I was honoured to serve on a panel with Dr Kovel at DePaul University’s Academic Freedom Conference last February. He is a great speaker and  the author of Overcoming Zionism which led to the lynch mob of Zionist anti-modernists demanding it be censored by the University of Michigan that distributed Pluto Press. This is part of an ongoing inquisition where the academy is losing voice after voice of conscience and scholarship that challenges the Israel-centric posture of American external relations. Indeed, at that conference at DePaul I stated repeatedly it is easier for an Israeli academic to criticise Israel then it is for an American.

Saturday, 2 February 2008 (Morning to Afternoon) 11:00 – Academic Freedom and the Way Forward - SC 120AB Dr. Marc Ellis, University Professor, Director of the Center for Jewish Studies at Baylor University Dr. Peter N. Kirstein, Professor of History, St. Xavier University Dr. Joel Kovel, Editor-in-Chief of Capitalism, Nature, Socialism journal Distinguished Professor of Social Studies, Bard College

http://www.joelkovel.org/
STATEMENT OF JOEL KOVEL REGARDING HIS TERMINATION BY BARD COLLEGE
_Introduction_
In January, 1988, I was appointed to the Alger Hiss Chair of Social  Studies at Bard College. As this was a Presidential appointment outside the tenure system, I have served under a series of contracts. The last of these was half-time (one semester on, one off, with half salary and full benefits year-round), effective from July 1, 2004, to June 30, 2009. On February 7 I received a letter from Michèle Dominy, Dean of the College, informing me that my contract would not be renewed this July 1 and that I would be moved to emeritus status as of that day. She wrote that this decision was made by President Botstein, Executive Vice-President Papadimitriou and herself, in consultation with members of the Faculty Senate.

This document argues that this termination of service is prejudicial and motivated neither by intellectual nor pedagogic considerations, but by political values, principally stemming from differences between myself and the Bard administration on the issue of Zionism. There is of course much more to my years at Bard than this, including another controversial subject, my work on ecosocialism (/The Enemy of Nature/). However, the evidence shows a pattern of conflict over Zionism only too reminiscent of innumerable instances in this country in which critics of Israel have been made to pay, often with their careers, for speaking out. In this instance the process culminated in a deeply flawed evaluation process which was used to justify my termination from the faculty.
_A brief chronology_
• 2002. This was the first year I spoke out nationally about Zionism. In October, my article, “Zionism’s Bad Conscience,” appeared in /Tikkun/. Three or four weeks later, I was called into President Leon Botstein’s office, to be told my Hiss Chair was being taken away. Botstein said that he had nothing to do with the decision, then gratuitously added that it had not been made because of what I had just published about Zionism, and hastened to tell me that his views were diametrically opposed to mine.
• 2003. In January I published a second article in /Tikkun/, “‘Left-Anti-Semitism’ and the Special Status of Israel,” which argued for a One-State solution to the dilemmas posed by Zionism. A few weeks later,I received a phone call at home from Dean Dominy, who suggested, on behalf of Executive Vice-President Dimitri Papadimitriou, that perhaps it was time for me to retire from Bard. I declined. The result of this was an evaluation of my work and the inception, in 2004, of the current half-time contract as “Distinguished Professor.”
• 2006. I finished a draft of /Overcoming Zionism/. In January, while I was on a Fellowship in South Africa, President Botstein conducted a concert on campus of the Jerusalem Symphony Orchestra, which he has directed since 2003. In a stunning departure from traditional concert practice, this began with the playing of the national anthems of the United States and Israel, after each of which the audience rose. Except for a handful of protestors, the event went unnoticed. I regarded it, however, as paradigmatic of the “special relationship” between the United States and Israel, one that has conduced to war in Iraq and massive human rights violations in Israel/Palestine. In December, I organized a public lecture at Bard (with Mazin Qumsiyeh) to call attention to this problem. Only one faculty person attended; the rest were students and community people; and the issue was never taken up on campus.

• 2007. /Overcoming Zionism/ was now on the market, arguing for a One-State solution (and sharply criticizing, among others, Martin Peretz for a scurrilous op-ed piece against Rachel Corrie in the /Los Angeles Times/. Peretz is an official in AIPAC’s foreign policy think-tank, and at the time a Bard Trustee-though this latter fact was not pointed out in the book). In August, /Overcoming Zionism/ was attacked by a watchdog Zionist group, StandWithUs/Michigan, which succeeded in pressuring the book’s United States distributor, the University of Michigan Press, to remove it from circulation. An extraordinary outpouring of support (650 letters to U of M) succeeded in reversing this frank episode of book-burning. I was disturbed, however, by the fact that, with the exception of two non-tenure track faculty, there was no support from Bard in response to this egregious violation of the speech rights of a professor. When I asked President Botstein in an email why this was so, he replied that he felt I was doing quite well at taking care of myself. This was irrelevant to the obligation of a college to protect its faculty from violation of their rights of free expression-all the more so, a college such as Bard with a carefully honed reputation as a bastion of academic freedom, and which indeed defines such freedom in its Faculty Handbook as a “right . . . to search for truth and understanding without interference and to disseminate his [sic] findings without intimidation.”
• 2008. Despite some reservations by the faculty, I was able to teach a course on Zionism. In my view, and that of most of the students, it was carried off successfully. Concurrently with this, another evaluation of my work at Bard was underway. Unlike previous evaluations, in 1996 and 2003, this was unenthusiastic. It was cited by Dean Dominy as instrumental in the decision to let me go.

_Irregularities in the Evaluation Process_
The evaluation committee included Professor Bruce Chilton, along with Professors Mark Lambert and Kyle Gann. Professor Chilton is a member of the Social Studies division, a distinguished theologian, and the campus’ Protestant chaplain. He is also active in Zionist circles, as chair of the Episcopal-Jewish Relations Committee in the Episcopal Diocese of New York, and a member of the Executive Committee of Christians for Fair Witness on the Middle East. In this capacity he campaigns vigorously against Protestant efforts to promote divestment and sanctions against the State of Israel. Professor Chilton is particularly antagonistic to the Palestinian liberation theology movement, Sabeel, and its leader, Rev. Naim Ateek, also an Episcopal. This places him on the other side of the divide from myself, who attended a Sabeel Conference in Birmingham, MI, in October, 2008, as an invited speaker, where I met Rev. Ateek, and expressed admiration for his position.   It should also be observed that Professor Chilton was active this past January in supporting Israeli aggression in Gaza. He may be heard on a national radio program on WABC, “Religion on the Line,” (January 11, 2009) arguing from the Doctrine of Just War and claiming that it is anti-Semitic to criticize Israel for human rights violations-this despite the fact that large numbers of Jews have been in the forefront of protesting Israeli crimes in Gaza. Of course, Professor Chilton has the right to his opinion as an academic and a citizen. Nonetheless, the presence of such a voice on the committee whose conclusion was instrumental in the decision to remove me from the Bard faculty is highly dubious. Most definitely, Professor Chilton should have recused himself from this position. His failure to do so, combined with the fact that the decision as a whole was made in context of adversity between myself and the Bard administration, renders the process of my termination invalid as an instance of what the College’s Faculty Handbook calls a procedure “designed to evaluate each faculty member fairly and in good faith.”

I still strove to make my future at Bard the subject of reasonable negotiation. However, my efforts in this direction were rudely denied by Dean Dominy’s curt and dismissive letter (at the urging, according to her, of Vice-President Papadimitriou), which plainly asserted that there was nothing to talk over and that I was being handed a /fait accompli/. In view of this I considered myself left with no other option than the release of this document.

_On the responsibililty of intellectuals_
Bard has effectively crafted for itself an image as a bastion of progressive thought. Its efforts were crowned with being anointed in 2005 by the /Princeton Review /as the second-most progressive college in the United States, the journal adding that Bard “puts the ‘liberal’ in ‘liberal arts.’” But “liberal” thought evidently has its limits; and my work against Zionism has encountered these.A fundamental principle of mine is that the educator must criticize the injustices of the world, whether or not this involves him or her in conflict with the powers that be. The systematic failure of the academy to do so plays no small role in the perpetuation of injustice and state violence. In no sphere of political action does this principle apply more vigorously than with the question of Zionism; and in no country is this issue more strategically important than in the United States, given the fact that United States support is necessary for Israel’s behavior. The worse this behavior, the more strenuous must be the suppression of criticism. I take the view, then, that Israeli human rights abuses are deeply engrained in a culture of impunity granted chiefly, though not exclusively, in the United States-which culture arises from suppression of debate and open inquiry within those institutions, such as colleges, whose social role it is to enlighten the public. Therefore, if the world stands outraged at Israeli aggression in Gaza, it should also be outraged at institutions in the United States that grant Israel impunity.

In my view, Bard College is one such institution. It has suppressed critical engagement with Israel and Zionism, and therefore has enabled abuses such as have occurred and are occurring in Gaza. This notion is of course, not just descriptive of a place like Bard. It is also the context within which the critic of such a place and the Zionist ideology it enables becomes marginalized, and then removed.

For further information: www.codz.org; Joel Kovel, “Overcoming
Impunity,” /The Link/ Jan-March 2009 (www.ameu.org).
To write the Bard administration:
President Leon Botstein <president@bard.edu.
Executive Vice-President Dimitri Papadimitriou dpapadimitrou@bard.edu

I was told by Roger Chapman, the distinguished editor of the Encyclopedia of the Culture Wars, that the original publication date of December 2008 has been extended. Additional entries reflecting the new era of Barack Hussein Obama were being added to the two-volume compendium. I was informed by a library professional staff person at my university that the publisher M.E. Sharpe had indicated August 2009 would be the release date.

Projected to be over 400,000 words in two volumes of text, and illustrated, the Encyclopedia of the Culture Wars  will be published by M.E. Sharpe of Armonk, New York.

I am contributing articles on J. Robert Oppenheimer and Academic Freedom:

Albert Einstein, whose 1939 letter to President Franklin Delano Roosevelt triggered the atomic bomb Manhattan Project and Dr Oppenheimer, director of Los Alamos laboratory near Santa Fe, New Mexico. Ironically, Dr Einstein was excluded from the Manhattan Project by some who felt he was too independent and too radical. He later became a strong opponent of atomic weaponry.

Beware of groups such as Campus Watch, the David Project, the American Council of Trustees and Alumni and occasionally David Horowitz for attempting to move beyond critiquing progressive academicians into pressuring institutions or the public at large to remove or sanction such scholars.

From: John May [mailto:xxx@yahoo.com]
Sent: Fri 1/23/2009 7:45 AM
To: Kirstein, Peter N.
Subject: Teaching Philosophy and Raison D’être in being a professor

Professor Kirstein

After reading your “Teaching Philosophy and Raison D’être” I am confused. You state that “I believe teaching is a moral act”. Would those be your morals or the morals of another person, group or society? If they are your morals then would that not make you a vaild target for those who disagree with them? If so then it would be acceptable for David Horowitz to call your teaching into question.

If your view is that it is acceptable for a professor to teach their morals, as long as they are sincere, then I would agree, although haltingly, with your statement that “Different views and competing visions should be introduced when appropriate”. The portion of that statement that causes me concern is the ending, i.e. “when appropriate”. That starts to sound a little arbitrary, or as you state it, like some form of censorship.

I seriously doubt that you would support any professor who sincerely espoused the views of the KKK. Yet that same professor could copy, almost word for word, your “Teaching Philosophy and Raison D’être” and be justified.

It seems to me that balance would requires competing views, whether you embrace them or not. Otherwise you end up being nothing more than what Nietzsche referred to as an epileptic of the concept.

Sincerely

John May

—————————————————————————–

Dear John:  

Teaching is a moral act and of course predicated on the instructor’s morals but within the realm of effective and pedagogical best practices.                                                                                                      

I would support the right of a professor to espouse the views of the K.K.K. in class as long as its history is fairly rendered, students were encouraged to disagree and there was an absence of any hate speech directed toward a student or group. I might be uncomfortable with a colleague who supported the Klan but academic freedom would protect that person’s right to do so as it would for him or her to support the views of George Walker Bush.  

Presenting competing views is essential but not required in all circumstances. With regard to neutrality or always presenting all sides of an argument, allow me to quote myself from a YouTube video on  a talk I gave at New York University:

“Roberta Matthews, former provost at Brooklyn College, astutely noted, “teaching is a political act.” For me it is also a moral act that requires challenging the canon and educating responsible citizens. A professor should not merely recite facts and figures and maintain a sterile neutrality, as dictated by David Horowitz’s Academic Bill of Rights, or cover slavishly both sides of every issue. Is slavery defensible? Is genocide defensible? Is racism defensible? Is homophobia defensible? Are war crimes defensible?”

Thanks for your comments,  

Peter