November 6, 2009

SXU professor publishes encyclopedia articles

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

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

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

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.”

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.

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:  _____________________________

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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

—————————————————————————————-

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

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

To: Kirstein, Peter N.

Subject: Seat Change

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

Thank you for hearing me out,

I look forward to hearing you out as well,

Rutherford B. Hayes

———————————————————————————

From: Kirstein, Peter N.

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

To: Rutherford B. Hayes

Subject: RE: Seat Change

Hey RBH

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

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

Peter

————————————————————————————–

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

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

To: Kirstein, Peter N.

Subject: Re: Seat Change

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

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

Thank for being AWESOME

Rutherford B. Hayes

————————————————————————————

From: Kirstein, Peter N.

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

To: Rutherford B. Hayes

Subject: RE: Seat Change

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

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

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

Best,

Peter

———————————————————————————–

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

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

To: Kirstein, Peter N.

Subject: Re: Seat Change

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

William Lloyd Garrison (1805-1879)

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

Judge Billings Learned Hand (1872-1961)

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

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

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

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

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

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

As first reported over a month ago on July 15, 2009,  Dr Timothy Kuklo would not return this fall to Washington University in St Louis School of Medicine. His  official resignation on July 30 was not voluntarily despite the disclaimers of the spinmasters at the St Louis campus. It was announced on Tuesday night August 18 and will take effect on September 30 according to the New York Times, which broke the story, in Pulitzer Prize winning fashion, of the egregious misconduct of the misbegotten lawyer-physician in May. This turn of events was inevitable given the obvious moral turpitude of this tenured associate professor. Moral turpitude would have been grounds for dismissal. Dr Kuklo clearly was given that option or resignation.

The latter was chosen but should not be construed as voluntary. He faked his research on the Medtronic bone-growth product Infuse. He falsified the signatures of four co-authors to cover up the lack of team research when he was on staff at Walter Reed Army Medical Center. He was on the payroll of Medtronic while he was inventing data to enhance the marketing of their products. He violated army protocols in submitting research to medical journals such as the Journal of Bone and Joint Surgery. He let materialism and profit endanger his patients by presenting research that if adhered to by other orthopaedic surgeons, could have damaged or at best provided little efficacy in treatment.

Dr Kuklo faked research that he claimed was performed on Iraq War veterans who were severely wounded in combat: namely, lower leg fractures and other horrendous trauma. This physician was a colonel, a graduate from West Point who cynically manipulated data on patients who suffered in an unjust war and added to this outrage by cynically lying about a bio-engineered protein growth product that might illegitimately be used on other military and civilian personnel.

A physician must do no harm. Dr Kuklo disgraced himself, Washington University in St Louis School of Medicine, the medical profession, the army and Walter Reed Army Medical Center that frankly needs to reexamine its monitoring of rogue physicians. It also revealed that “Pay to Fake” is alive and well in our wonderful health care system when big pharma pay physicians big bucks to promote and market their products.

The wild west show of American medicine in which only a privileged few get health care while 46-50,000,000 are utterly unprotected in case of illness cannot stand. The Kuklo case is merely one of many symptoms of institutional disease which while not unknown with socialised medicine, would at least not be as prevalent when caring and not profiting becomes the institutional norm THROUGHOUT the medical industry.

But questions remain:

Will the University of Connecticut School of Medicine revoke his medical degree?

Will the dishonest physician researcher lose his medical license?

Will he be prosecuted by the army for misusing his research, failing to adhere to military regulations concerning publication and being on the payroll without transparency?

Will he be sued by his false claimed co-researchers whose names the colonel forged on the article’s submission to the Journal of Bone and Spine Surgery?

Will Washington University in St Louis continue to enjoy its lofty reputation without holding some of their administrators accountable for the egregious lack of supervision, foot-dragging investigation and utter lack of public remorse for this egregious display of criminality and venal materialism?

Will Doctor Timothy Kuklo ever address this issue publicly or will he continue his stony silence? Perhaps he should; perhaps he should not. His lawyer obviously has counseled against any public statement but honour and ethics might induce him to display some contrition since his former elite status in military medicine should entail some sense of responsibility to younger medical researchers and students.

My father who taught at the medical school for some thirty years would have been shocked at this scandal but would want the university to publicly reemphasise its commitment to medical ethics, display humility that this was a disgraceful stain on its reputation and work with full transparency in improving its tenure practices of new hires, monitor more carefully Big Pharma’s role in its funding and research practices and recommit itself in pursuing his role and destiny and mission: to help the sick and keep the healthy well.

Previous entries on Colonel Doctor Timothy R.  Kuklo

July 15, 2009 A.W.O.L. Speculation

June 18, 2009 Million Dollar Baby

June 16. 2009

May 30, 2009

May 22, 2009 Dr Kuklo takes leave of absence

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009 Dr Riew first critiqued

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu

Hiroshima annual remembrance of their holocaust in which 125,000 were killed or injured as the nuclear age entered the annals of diabolical history.

This date, August 6, 1945, was one of the most important and significant moments in world history. The arrival of the nuclear age with the atomic bombing of Hiroshima by the Americans at the end of World War II, thrust the world into an almost indescribable frenzy of self-destruction.  This winter I will be publishing research in a major peer-review journal titled, “Hiroshima and Spinning the Atom: America, Britain, and Canada Proclaim the Nuclear Age, August 6, 1945.” Using materials from the National Archives it will introduce some novel revelations of this horrific and Earth shattering event. While I am prohibited, due to “copyright authorisation,” from revealing too much prior to publication including  an abstract, I will, with appropriate circumspection, state the following.

Before the uranium-core bomb exploded in the skies over Hiroshima, the United States was planning a propaganda campaign to sell the nuclear age to the American people and the global community. The article will prove that the beginnings of this campaign preceded the Truman years and that it was multinational in scope. The article will introduce for the first time A-bomb statements on the day of the bombing in a comparative historical context. As usual, American historians primarily focus upon the United States role in the Manhattan Project on which I have  previously published but virtually ignore the role played by other “allies” during this period. Several nations are known to have prepared the world for the meaning of the atomic age in the most glowing terms and offer exterminationist rhetoric that debases the human condition and mocks the notion of  the “Greatest Generation” with its contemptuous disregard of  just war and its supposed moral superiority over the Germans or Japanese.

Many felt that the United States would have a monopoly on the nuclear weapons’ inventory for decades and arrogantly sought to prevent any efforts at international arms control. While the US used the atomic bomb against a nearly defeated and devastated Japan–twice I might add noting the criminal Nagasaki holocaust on August 9–the Soviet Union acquired its atomic bomb just four years later in August, 1949. The race was on and has not stopped as nuclear pride and nuclear elitism, so pronounced by the early nuclear powers, has prodded more vulnerable states to equal the score and avert regime change.

Unfortunately when the Earth was created, it came packed in its crust with uranium which is rather plentiful. Without uranium, a heavy unstable transuranic element with the atomic number 92, there is no atomic bomb: period. One cannot make any type of nuclear weapon–even a hydrogen bomb–without access to uranium. While plutonium was used as the primary fissionable material in the latter Nagasaki “Fat Man” bomb, without uranium one does not acquire plutonium. It is created as a by-product in a nuclear reactor when U-238 is bombarded with another neutron and does not exist in functional amounts in nature. Through reprocessing, which took place at Hanford in Washington State during the Manhattan Project (1942-1945), plutonium is separated and used as a fissionable fuel in nuclear weapons.

Someone forgot to tell the United States of America.

Mr George W. Bush was unfortunately not the first to mislead the American people about the existence of weapons of mass destruction (W.M.D.)  Physicists Leo Szilard, Victor Weisskopf, Enrico Fermi, Albert Einstein (though he was more of a pawn in this game), Eugene Wigner and non-scientist Alexander Sachs as early as 1939, two years before the US entered the war, were trying to scare President Franklin Delano Roosevelt into  launching an A-bomb programme in order to beat Nazi Germany that they claimed was feverishly and successfully working on an atomic bomb.

The first nuclear arms race was on. The “battle of the laboratories” was the name used in official documents but the problem was there was only one participant in this monstrous and unseemly competition. Germany had no Manhattan Project to speak of, did not create nuclear fission or reach criticality in any pile and never entered into a crash programme as did the US. While it had great physicists such as Werner Heisenberg, Paul Harteck, Otto Hahn (probably the first to discover nuclear fission of uranium), Kurt Diebner and Carl-Friedrich von Weizsäcker who were aware of  neutron-splitting fission, it never constructed enrichment plants, gaseous diffusion plants or reprocessing plants and never created an archetype for a nuclear bomb or warhead on their rocketry. There was a “missile gap” but who cares since only conventional warheads were then developed.

Germany was innovative in theoretical physics but not in experimental physics. Its scientists let it down during the war as it underestimated the value of graphite as a moderator to slow down neutrons and basically believed heavy water and natural uranium would cause fission. Of course that would obviate enrichment of U-235 and move to the plutonium option but that was not achieved. Also allied sabotage and bombing of their heavy water assets at the Vemork Hyrdogen-Electrolyis Plant  in Norway and research centers such as the Kaiser-Wilhelm Institute in Berlin further stymied their episodic and elementary nuclear-research programme. Germany never even agreed it should develop A-bombs; that decision was never formally emphasised or adopted but of course there was anemic government sponsored research into nuclear fission which fissiled.

It is certain that the atomic bomb was built over a fabrication of lies or, to be more charitable, unseemly and epic exaggeration. No:  President Franklin Delano Roosevelt was hardly going to go public and talk about a German nuclear programme in 1939 or 1942, when the Manhattan Engineer District began, since he tried to keep such research in total secrecy but the genesis, the inception, the decision to develop atomic bombs was based on the false and unsubstantiated claim that Germany was in the midst of a crash programme to develop fission weapons. Was it merely faulty intelligence or exaggerated emotions to scare the administration into this Armageddon  of death and mayhem and butchery?

A nuclear rival did not exist and Saddam did not possess nuclear weapons either. The entire edifice and raison d’être for the atomic-bomb programme proved to be illusory and non-existent. While Mr Bush merely lied the US into war crimes against Saddam, the scientists who preyed on F. D. R. were not well informed enough to demand morally such a dangerous and possibly Earth-eliminating undertaking with the world moving inexorably toward a nuclear catastrophe. Adolph Hitler had not even invaded Poland when this coterie tried to get President Roosevelt to launch the nuclear A-bomb project which did begin in earnest in 1942.

Yet even when Germany surrendered on May 8, 1945, the nuclear-bomb warfare option did not end. It merely transferred its objectives upon Japan that clearly was not developing nuclear weapons.  The hate-filled United States did not allow a noncombat demonstration, a warning or even a continuation of the  blockade to coerce a surrender.  Not even the full-scale invasion, which they lied about 1,000,000 projected casualties, was likely to ever occur for that was not to deploy large numbers of American invaders across the Tokyo Plain for at least eight months in March 1946.

No modifying, despite the urgings of Secretary of War Henry Stimson and Undersecretary of State Joseph Grew,  the barbaric unconditional surrender doctrine to allow the retention of the Emperor occurred–even though it was allowed AFTER the war. Nor was there waiting to see the demoralising effect of the now-resented Soviet invasion of Manchuria. The Truman A-bomb was a revengeful, criminal act without justification or military necessity. Yes scientists such as Tokutaro Hagiwara speculated about fission and even the development of thermonuclear weapons with a U-235 spark to ignite the fusion of hydrogen atoms. Yet not even the US worried about Japan being anything other than a conventional power and no one speculated otherwise.

They used to say “duck and cover” like Bert the Turtle would do the trick. Or a little A-Bomb shelter in the backyard if you are home will be just fine. Or build more warheads and launchers than any other power will “deter.” What kind of a nation do we live in with this type of weapon, to paraphrase Secretary Stimson, “that we wear so ostentatiously on our hip?”

Dr Leo Szilard and the Franck Report avoided unconditional rejection of this carnage in Nagasaki.

Much has been written how Manhattan Project scientists became antiwar activists DURING World War II and tried to prevent the use of the atomic bomb. Such is not the case since every organised effort put conditions on Japan that if not met, would lead to the nuclear incineration of their country. No unconditional effort to stop the first nuclear war ever took place during the war years from 1939-1945.

The United States and the Axis powers had abandoned any pretext of preserving non-combatant immunity in warfare. The strategic bombings of urban areas was vigorously unleashed by the major powers during World War II as witnessed by the savage destruction of Dresden, Tokyo, Hamburg, Rotterdam, Nanking, and Coventry. As the violence mounted in a war without mercy, the combatants developed the concept of total war in which “soft” non-combatant, civilian populations were added to the traditional target selection of military bases, armies in the field, and key naval staging areas. Even Secretary of War Henry L. Stimson’s dramatic intercession to spare Kyoto, Japan’s ancient capital that abounded with historical and cultural treasures, from nuclear attack, was motivated to protect Japan’s historical and material artifacts and not the city’s civilian population.1

With strategic-nuclear bombing rapidly becoming operational in the final weeks of the war, 171 scientists and support personnel from the Manhattan Engineer District (Manhattan Project) responded by disseminating a flurry of petitions, reports, memoranda, and letters.2 Their purpose was to influence United States policy on how, not whether, the atomic bomb should be introduced into the Asian-Pacific War.

It will be shown that civilian and military officials, journalists, and scholars of the period have inaccurately assessed many of these documents as indicative of either unconditional opposition to the use of the atomic bomb or sharply at odds with Truman Administration policy. In particular, the petitions of physicist Leo Szilard at the Metallurgical Laboratory (Metlab) of the University of Chicago, have been variously interpreted as unalterably opposed to the use of the atomic bomb.3 A reexamination of the petitions will clearly demonstrate conditional and not unconditional opposition to attacking Japan with the atomic bomb. Furthermore, the Metallurgical Laboratory Report of the Committee on Political and Social Problems (the Franck Report) has repeatedly been assessed as unalloyed opposition to any combat role for the A-bomb. While their authors’ certainly shared misgivings in abandoning conventional warfare, it will be shown they eschewed an unconditional, absolutist rejection of the use of the atomic bomb.

One of the most detailed and important Manhattan Project documents concerning the A-bomb’s potential use was the Franck Report.4 James Franck, a German-refugee physicist and 1925 Nobel laureate, was the associate director of the chemistry division at Metlab and the committee chair.5 The Franck Report portrayed ominously the security implications of an unannounced use of nuclear weapons, was visionary in its prediction of an abbreviated American atomic monopoly, and correctly wished to harness weapons of mass destruction to an international-control regime. It advocated a noncombat demonstration on a “desert or a barren island” that would avoid international “horror and revulsion” against an unannounced American-nuclear attack in the Pacific.6 Although conceding the introduction of the A-bomb would trigger a nuclear arms race, its arguments in favor of a non-lethal test demonstration were tactical, not ethical.7 America’s fission bombs were too weak and “of comparatively low efficiency and small size” to “break the will” of Japan.8 Since many Japanese cities had already been “reduced to ashes” by conventional bombing, a surprise nuclear attack would only marginally influence Japan’s decision to surrender.9

However, the Franck Report avoided unconditional opposition to the use of nuclear weapons, and even recommended certain preconditions that might justify their introduction. These might include the approval of the incipient United Nations, the support of the American people, and a Japanese rejection of a surrender ultimatum: “The weapon might perhaps be used against Japan if the sanction of the United Nations (and of public opinion at home) were obtained, perhaps after a preliminary ultimatum to Japan to surrender or at least to evacuate certain regions…”10 The report also avoided recommending a modification of unconditional surrender, established at the Casablanca conference in January 1943, in order to facilitate a diplomatic solution to the war.

The Franck Report was alarmed about the potentially adverse diplomatic consequences that might ensue from a sudden nuclear attack, and counseled the administration on how best to avoid widespread opprobrium should the A-bomb be used against Japan; the government should defer combat use until the international community witnessed a technical demonstration, for this would lessen criticism particularly if “other nations may assume a share of responsibility for such a fateful decision.”11 While the Metlab scientists appropriately looked beyond the military application of the bomb and considered the impact of nuclear proliferation on United States national-security policy, the Franck Report not only avoided total opposition to a nuclear offensive, but also offered recommendations on how best to use the A-bomb without America becoming a nuclear-pariah state.

Arthur Holly Compton was the 1927 Nobel laureate in physics and director of the University of Chicago’s Metlab. It was the great scientist who originated the myth that Szilard’s petition drive and the Franck Report were unconditionally opposed to any atomic attack against Japan. Compton offered highly opinionated summaries before forwarding Metlab and Clinton Engineer Works (Oak Ridge, Tennessee) documents to Washington. He sent a copy of the Franck Report to George Harrison, a special consultant to Stimson and the chair, in the secretary’s absence, of the eight-person Interim Policy Committee on Atomic Energy (Interim Committee) in 1945.12 Included was Compton’s highly subjective analysis that the report wanted “outlawed by firm international agreement,” any “permitting [of] the bombs to be used in war.” Compton distanced himself from the report by arguing that any postponement in implementing the atomic option would “make the war longer and more expensive of human lives…”13 Nowhere does Compton mention that the Franck Report delineated a host of specific conditions that, if implemented, could justify a B-29 A-bomb campaign against Japan.

Dr Arthur Holly Compton

Harrison later informed Stimson in a “Top Secret” memorandum on June 26 about the existence of the Franck Report, and also inaccurately described it as rejecting the “use of the bomb, so nearly completed, against any enemy country at this time.”14 Several documentary and general histories of the atomic bomb by Barton Bernstein, Jeffrey Porro, et al., and William Sweet, excluded in their abridged reprints of the Franck Report those sections that only conditionally dissented from an A-bomb attack or that assessed the negative diplomatic fallout that might erupt from a military demonstration.15

At Metlab in July 1945, with the decision to use the atomic bomb only weeks away, Szilard began the petition movement. A Hungarian émigré, he helped create the Manhattan Project with his early conceptualization of the nuclear-chain reaction and his drafting of the August 1939 Albert Einstein letter to President Franklin D. Roosevelt—delivered by Russian-born Lehman Corporation economist Alexander Sachs.16 Szilard has been repeatedly portrayed as the Manhattan Project’s chief architect in organizing protest against the use of the atomic bomb at the end of World War II. Yet Manhattan Project documents reveal Szilard neither unconditionally opposed the atomic bombings of Japan nor significantly deviated from Truman Administration policy.

In early 1945, with Germany’s defeat a near certainty, Szilard initially attempted through an Einstein letter of introduction to meet with Roosevelt, and persuade the president that the original rationale in developing the atomic bomb had vanished. Yet the president’s death on April 12, 1945 precluded such an encounter, and Szilard subsequently initiated the petition effort with the circulation of his July 3 petition and cover letter of July 4, 1945 among scientists from both Metlab and Clinton.17 There was an unsuccessful effort to distribute the petition at Los Alamos National Laboratory in New Mexico, which built and assembled the weapons that were used against Hiroshima and Nagasaki on August 6 and August 9, 1945. J. Robert Oppenheimer, the Los Alamos director, thwarted any petition distribution because he believed, somewhat hypocritically, a scientist should not attempt to influence the policy-making process of the national-security elites.18

While the cover letter unambiguously denounced the immorality of using nuclear weapons in opposing “on moral grounds…the use of these bombs in the present phase of the war,” the actual petition was less emphatic in its opposition to abandoning conventional warfare.19 If Japan did not accept American-“imposed” surrender terms that consisted of vague guarantees of “peaceful pursuits in their homeland,” the United States “might require a reexamination of her position” which could lead to the use of the atomic bomb.20 This first petition on a nuclear-related event did not propose an atomic warning or any concrete steps that might avoid the use of the A-bomb. Szilard, who later opposed a nuclear test-ban treaty in the 1960s that would reduce radioactive fallout and achieve some strategic stability in the wake of the Cuban Missile Crisis, did not advance any non-lethal test scenario that might have induced a Japanese surrender.21

Leo Szilard pronounced “Silard”

In paragraph six, Szilard’s petition repeated the cover letter’s condemnation of nuclear weapons with a vituperative critique of both conventional and nonconventional-strategic bombing of Japan:

The last few years show a marked tendency toward increasing ruthlessness. At present our Air Forces, striking at the Japanese cities, are using the same methods of warfare which were condemned by American public opinion only a few years ago when applied by the Germans to the cities of England. Our use of atomic bombs in this war would carry the world a long way further on this path of ruthlessness.22

This plea for atomic restraint only applied to using nuclear weapons “in the present phase of the war.”23 This was consistent with the petition’s call for an American “reexamination” of its nuclear-use policy should Japan not accede to dictated terms of surrender.

At the Clinton Laboratory, Szilard’s petition triggered a vigorous response. Eighteen Clinton scientists signed a petition that supported Szilard’s effort except for the latter’s final paragraph. Similar to the Franck Report, which the signers did not see, it recommended sharing American “responsibility for use of atomic bombs…with our allies.”

The amended petition, while repeating Szilard’s vague surrender terms that allowed Japan a “peaceful development in their homeland,” explicitly advocated an atomic warning prior to any A-bomb offensive:24 “We…feel that our attitude is more clearly expressed if its last paragraph is replaced by the following…’Convincing warnings have been given that a refusal to surrender will be followed by the use of a new weapon.’”25 This appeal for an atomic warning went beyond any Szilard petition. While Compton conveniently ignored the Clinton demand for an atomic warning in pursuing his own agenda of prompt, immediate use, his general characterization of its framers as “reading the minds of Mr. Truman and Mr. Stimson” accurately reflected the document’s avoidance of unconditional opposition to the use of the atomic bomb.26

A Clinton “counterpetition” effort also appeared that strongly supported the unconditional use of the weapon. George W. Parker, a chemist and leader of this small but vocal group, mailed Compton a letter which has eluded historical scrutiny on July 16, 1945—the same day as the first nuclear explosion at Trinity, in the appropriately named New Mexico desert, Jornada del Muerto (Journey of Death). While not representing government policy, Parker’s explicit written support for atomic diplomacy was one of the first to appear in any World War II document. Parker was impressed with the diplomatic advantages that would accrue from unveiling such an “impressive weapon.” As a winning weapon, the A-bomb would confer an “impressive victory…[and] should inspire American diplomacy and world opinion to effectively tame the present hard-booted Russian ego which is now an embarrassing threat to plans for world security.”27 Specifically rejecting an atomic warning and brushing aside fears of diplomatic isolation following the weapon’s use, Parker rejected any “political or moral issue” that might dissuade the government from authorizing an immediate use of the atomic bomb. It advocated “winning the war.”28

During this frenetic July when dozens of atomic scientists endeavored to influence the endgame of their unprecedented creation, Parker also released a petition, co-endorsed by D. S. Ballantine, that smeared Szilard’s petition movement as unAmerican. Titled “A Petetion [sic] to the Administration of Clinton Laboratories,” it was unusually strident and provocative as it unleashed a vitriolic condemnation of Szilard.29 Declaring itself a “counterpetition” and evoking the language and ideological nationalism that would typify McCarthyism, the Parker-Ballantine petition denounced Szilard as a threat to national security.30 “[T]he original Szilard petition has exposed the security of the DSM project. Certainly, if one such petition, with the information and dangerous implications it has, can pass through… plant and project administration, we feel that every individual may assume open season and compete to be sure that his own aquiesence [sic] or dissension is equally well broadcast.”31

“The Greatest Generation’s” Destruction of Innocents in Nagasaki

The Parker-Ballantine petition claiming to represent true patriotism, affirmed its “sentiments” were shared by “particularly those who have sons and daughters in the foxholes and warships of the Pacific.”32 While noting the Metlab petition’s ethical misgivings concerning weapons of mass destruction, the two scientists described accurately its less than unqualified opposition: “If practical necessities demand its [the bomb’s] use, then the moral issue should be bypassed. It should be used if the nation’s life were endangered, the petition went on to say.”33

In their petition, Parker and Ballantine rejected concerns that an unannounced A-bomb attack would precipitate international outrage, or threaten global security in introducing a new destructiveness of unprecedented magnitude. Deployment of the latest military technology always generates fear the petition alleged, but subsequent to widespread proliferation into nation-state arsenals, it becomes an “everyday implement of war.” So too would nuclear weapons as “future generations will come to regard this latest device with less and less regard.”34

The Clinton petitions, counterpetition, and letters were delivered to Martin D. Whitaker, physicist and director of the Tennessee laboratory, and the Oak Ridge scientists’ chief conduit to Washington. Whitaker subsequently gave them to Colonel Kenneth D. Nichols, Corps of Engineers, and a principal deputy of Major General Leslie R. Groves—the director of the Manhattan Project since its inception on August 13, 1942. Nichols, who earned a doctorate and later became a major general, was a key link in the communication’s channel between the Manhattan Project scientists and Washington.35 Nichols subsequently shared them with Compton, hoping to receive a summary analysis, but Compton confined his written analysis during the war only to those petitions and reports written by Metlab personnel.36

Two weeks after circulating his July 3 petition, Szilard submitted a second revision that had the support of seventy Metlab personnel. The signers’ names did not appear on a single-master petition but were scattered among nine different copies that were circulated among the various laboratory’s division sections.37 As a result, there have been widely disparate accounts of the precise number of names that appeared on the last Manhattan Project petition of World War II. At least four times in 1945 Szilard reported gathering sixty-seven signatures on the July 17th petition.39 Major General F. L. Parks referred to “some sixty scientists” in a letter to A. J. Muste of The Fellowship of Reconciliation.39 In 1960 Szilard actually reduced the number to “about sixty members” in an interview with U.S. News and World Report.40 While incorrectly identifying a quotation from the Franck Report and attributing it to Szilard’s petition, Lloyd Gardner stated only “several atomic scientists” signed the July petition.41 Alperovitz claimed some sixty-nine signatures were affixed to the petition.42 Kai Bird and Lawrence Lifschultz stupidly claimed there were 155 names appearing on Szilard’s July 17th petition which was only two fewer than the total number of signed supporters of all Manhattan Project petitions!43

A composite list of the July 17th petition at the National Archives contained the seventy names that appeared on nine-separate petition copies along with their job descriptions at the Metallurgical Laboratory.44 A revised, more detailed list, that was probably completed at the end of 1946, revealed a more intrusive ongoing-security monitoring operation. Those who signed the petition were now categorized as “important” or “not important,” and included the circumstances under which an individual might have resigned from the Manhattan Project.45 While there is no evidence of a post-petition purge, an ongoing intelligence-gathering operation of atomic scientists who attempted to influence the decision to use the atomic bomb, anticipated inappropriate national-security excesses during the Cold War.46

Szilard’s revised petition of July 17th never circulated outside Chicago and, unlike the draft of July 3rd, received no feedback from Clinton Engineer Works’s colleagues. While efforts were made by senior officials to draw major distinctions between the July 3 and July 17 versions, they were strikingly similar. Each contained eight paragraphs and neither advocated total opposition to the use of the atomic bomb. The final petition did not differ substantively from the original, but merely adopted a more measured, conciliatory tone in its critique of the possible use of atomic weapons. The first petition’s declaration that “the destruction of Japanese cities” might be effective but inappropriate, was replaced by the less provocative—“attacks by atomic bombs”—which removed specific criticisms of urban targeting. The July 3 petition warning that Japan’s refusal to abide by American surrender terms might justify a nuclear response, was rewritten with a similar warning that the United States “might…find itself forced to resort to the use of atomic bombs.”47

Dr Szilard’s July 17 petition that conditionally supported the use of the atomic bomb.

The July 3 petition’s denunciation of nuclear weapons as “primarily a means for the ruthless annihilation of cities,” was substituted with the less critical observation that they “provide…nations with new means of destruction.” The July 3 petition’s sixth paragraph, as cited earlier, which twice denounced the “ruthlessness” inherent in strategic bombing, was replaced with a more analytic reflection that nuclear proliferation among competing powers could significantly attenuate international stability.

Significantly, the revised petition retained the earlier provisions for a nuclear attack should “the terms which will be imposed upon Japan have been made public in detail and Japan knowing these terms has refused to surrender.”48 The revised petition concluded with a deferential request that the president, before authorizing the use of the atomic bomb, take cognizance of the petition’s “considerations” and “other moral responsibilities.”49 While the petitions deviated rhetorically in their assessment of the potential use of the atomic bomb, they both unambiguously outlined conditions that could allow its criminal, barbaric introduction into the Asian-Pacific War.

Szilard’s petitions omitted specific antibomb conditions that might have thwarted the genocidal use of this horrific weapon. Possible options of maintaining the blockade around the Japanese islands, continuing the mass murder city-busting air raids, or modifying unconditional surrender to allow the retention of the emperor were not included in any Metlab petition. Both the Franck Report and the July 13 Clinton petition at least recommended a non-combat demonstration or an atomic warning prior to the decision to deploying the uranium-core gravity bomb against Japan. Yet Szilard is referred to as the first “moral philosopher of the nuclear age.”50

Nevertheless, several officials claimed Szilard had to compromise his putative antibomb position in order to obtain a significant number of signatures on his petition. While certainly true the Hungarian émigré revised the original in order to obtain greater support, the original only included conditional opposition to the use of the atomic bomb. Compton and others who claimed a Metlab probomb consensus thwarted Szilard’s alleged anti-nuclear pacifism, were merely attempting to quell any laboratory opposition to an immediate, combat role for the atomic bomb.

According to Captain R. Gordon Arneson, the Interim Committee’s recording secretary, Szilard’s second petition was categorical in “urging that the bomb not be used in the present war.”51 Besides failing to acknowledge the petition’s explicit avoidance of unconditional opposition to the use of the A-bomb on a defenceless adversary, Arneson dismissed the petition endeavor as frivolous due to the scientific community’s supposed representation on the Scientific Panel.52

Compton also misinterpreted and attempted to discredit the petition drive in a July 24 memorandum to Nichols. Like Arneson’s misreading of the July 17 petition, Compton erred dramatically in his interpretation of the earlier petition as an absolutist unsuccessful effort to derail the use of the atomic bomb. Compton claimed Szilard failed in “seeking signatures requesting no use of the new weapons in this war.”53 In his postwar memoir, Compton repeated his claim that the July 3 petition “called for outright rejection of the use of atomic bombs.”54 The Metlab director averred it was rejected by other scientists, thereby, forcing Szilard “to rephrase it so as to approve use of the weapons after giving suitable warning and opportunity for surrender under known conditions.”55

Nichols, who essentially lifted Compton’s analysis of Szilard’s petition campaign, sardonically observed that “the more informed individuals” at Metlab refused to sign the original draft because they “support the present plans for use of the weapon.” Like Compton, he mistakenly claimed the second petition was significantly altered “as a result of opposition… in order to get signers…”56 Ironically, Compton’s and Nichols’s assessment of the restrained anti-use posture of the July 17 petition were more accurate than that of its author. Szilard’s July 19 cover letter to Compton twice claimed the final version emphasized “the moral issue only” despite its mere conditional dissent from using the A-bomb.

Yet Szilard contradicted his own assessment by describing considerable disagreement among the seventy signers of the document. Some supported “early” use of the bomb, because delay might create the impression that the United States was attempting to conceal its nuclear monopoly and “cause distrust on the part of other nations… ”57 Others feared a nuclear-arms race with Russia would result unless a “demonstration” was delayed until after the United States identified what “course it intended to follow” in arms control and development during the postwar period.58

Compton almost certainly submitted to Washington, without Szilard’s knowledge or consent, the July 3 petition since it was not intended for actual transmittal; only the final July 17 document was sent to Compton with the purpose of reaching the White House. Szilard delivered to Compton six unsigned copies, and one signed copy that was placed inside a separate envelope. Szilard’s intent was to conceal the names of his supporters by protecting their “privilege under the Constitution,” and requested the signed copy be seen only by those “authorized to open the mail of the president.”59 Nichols then delivered by military police courier the ten Metlab and Clinton petitions and letters to Groves.60

Despite Compton’s and Farrington Daniels’s fallacious assertion that the documents “were transmitted to the White House,” Arneson stated definitively that Truman never saw the Manhattan Project materials that were sent to Washington.61 Groves kept them for about a week until August 1, when he finally routed them to the secretary of war after Stimson had returned from the Potsdam Conference outside Berlin. “It was decided that no useful purpose would be served by transmitting…[them] to the White House, particularly since the President was not then in the country.”62

Raymond Gram Swing: moral, ethical but propagated anti-bomb myth.

The popular culture in the postwar period witnessed additional erroneous portrayals of the Szilard petitions as unconditionally opposed to the decision to use the atomic bomb. Raymond Swing, an immensely popular ABC radio newsperson, denounced America’s-atomic monopoly, advocated world government to restrain unlimited-state sovereignty, and referred to a “communication…to President Truman after the first experiment at Los Alamos [sic] proved to be a success…[as] a plea that the bomb…not be dropped over Japan before a test demonstration.”63 Fletcher Knebel and Charles W. Bailey misrepresented the July 3 petition as “ask[ing] Truman not to use the bomb at all,” without revealing its highly qualified opposition to an atomic offensive.64 They also claimed incorrectly in their Look article that Szilard, in seeking greater support, changed the July 3 petition’s demand of “no use of the A-bomb at all” to requiring that a “warning” must precede any authorized use of the atomic bomb.65

Jacob Bronowski wrote that Szilard, “[a]lways… wanted the bomb to be tested openly before the Japanese and an international audience, so that the Japanese should know its power and should surrender before people died.”66 However, no reference to “no use,” a test demonstration, or any non-lethal detonation ever appeared in a Szilard petition. More recently Martin Harwit, former director of the Smithsonian Air and Space Museum, reprinted the July 17 petition and correctly described its modest opposition to using the atomic bomb in the Pacific. However, he claimed inaccurately that only “as a last resort” should the atomic bomb be used against Japan.67

The atomic scientists who attempted to influence one of the twentieth century’s most fateful decisions, operated within a narrow ideological consensus that only modestly questioned the decision to use the atomic bomb. Manhattan Project officials, historians, and journalists have too often emphasized the supposed chasm between the national-security managers who formulated policy and the Manhattan Project scientists who built the bomb. While the airburst-atomic devastation of a non-nuclearJapan unleashed the nuclear arms race and threatened the human race, there was no movment among the supposed dissenters to reject any conditions for the transformation of World War II into an orgiastic nuclear war.

1. Gar Alperovitz, The Decision to Use the Atomic Bomb and the Architecture of the American Myth (New York, 1995), 531-32; Barton J. Bernstein, “The Atomic Bombings Reconsidered,” Foreign Affairs, Jan-Feb 1995, 147.

2. Of that total, Leo Szilard, James J. Nickson, and George W. Parker signed more than one document, resulting in 168 different signatures.

3. The name “Metallurgical Laboratory,” was a ruse that served as a “convenient blind.” Arthur H. Compton to Irwin Stewart, April 30, 1943, roll 10, file 156, Bush-Conant File Relating to the Development of the Atomic Bomb, 1940-1945, Records of the Office of Scientific Research and Development, Record Group 227; National Archives—Great Lakes Region (Chicago).

4. Michael B. Stoff, Jonathan F. Fanton, and R. Hal Williams, eds.,The Manhattan Project: A Documentary Introduction to the Atomic Age (New York, 1991), 140-47. In addition to Franck, the other committee members were Donald J. Hughes, James J. Nickson, Eugene Rabinowitch, Glenn T. Seaborg, Joyce C. Stearns, and Leo Szilard.

5. Barton J. Bernstein, ed., The Atomic Bomb: The Critical Issues (Boston, 1986), 25.

6. Ibid., 26-27. “Horror and revulsion” did not represent the Franck Report’s own reaction to a possible atomic attack on Japan, but those of the American public and the international community.

7. The use of the term “demonstration” has often confounded students of the war because of the myriad applications of the term. Frequently, it referred to the use of the atomic bomb in a non-combat mode such as an uninhabited area in Japan or even the United States. A “technical” or a “test” demonstration’s purpose was to induce Japan’s surrender or to gain international support should a combat use against urban areas subsequently ensue. The term “military demonstration” could suggest a “limited” counterforce attack against a military target that would produce minimal “collateral damage” to civilians. “Military demonstration,” however, was frequently used as a euphemism for strategic nuclear bombing of a full range of military and non-military assets.

8. Stoff, et al., eds., Manhattan Project, 143. The term “fission,” based on cell division in biology, refers to a neutron splitting of a uranium (or plutonium) nucleus into two smaller and similar-sized nuclei. Physicists Lise Meitner and her nephew Otto Robert Frisch coined the term in 1938.

9. Ibid.

10. Stoff, et al., eds., Manhattan Project, 144. For support of the development of the atomic bomb and the Franck Report’s, misspelled as “Frank,” surrender ultimatum as a means of “transferring the burden of responsibility to the Japanese themselves,” see Norman Cousins and Thomas K. Finletter, “A Beginning for Sanity,” The Saturday Review of Literature, June 15, 1946, 6-7.

11. Ibid., 147.

12. National Archives Microfilm Publications Pamphlet Describing M1108, “Harrison-Bundy Files Relating to the Development of the Atomic Bomb, 1942-1946,” (Washington, D. C., 1982), 1. In addition to Stimson and Harrison, other members of the Interim Committee were Ralph Bard, Vannevar Bush, Jimmy Byrnes, William L. Clayton, Karl T. Compton, and James B. Conant. Bard, undersecretary of the navy, authored a memorandum that has also been erroneously portrayed as a great departure from the Interim Committee’s consensus on using the atomic bomb “as soon as possible, on a war plant surrounded by workers’ homes…” While recommending an atomic warning, bilateral talks “somewhere on the China coast,” and an offer to retain the emperor, Bard proposed a mere two-to-three day bombing delay to induce Japan’s surrender on these terms. Notes of the Interim Committee Meeting, June 1, 1945; roll 4, file 3; Correspondence (“Top Secret”) of the Manhattan Engineer District, 1942-1946, Records of the Office of the Chief of Engineers, Record Group 77; National Archives—Great Lakes Region (Chicago). [Emphasis in original]; Ralph A. Bard, “Memorandum on the Use of S-1 Bomb,” June 27, 1945; roll 6, file 76, Harrison-Bundy Files Relating to the Development of the Atomic Bomb, 1942-1946, Records of the Office of the Chief of Engineers, Record Group 77; NA—Great Lakes Region (Chicago). [Hereafter referred to as H-B Files]. S-1 was one of several code names used for the Manhattan Project during the war.

13. Compton to Secretary of War–Attention: Mr. George Harrison, June 12, 1945, 1-2, roll 6, file 76, H-B Files.

14. Martin J. Sherwin, A World Destroyed: The Atomic Bomb and the Grand Alliance (New York, 1975), 305.

15. Bernstein, Atomic Bomb, 26-9; Jeffrey Porro, Paul Doty, Carl Kaysen, and Jack Ruina, eds., The Nuclear Age Reader (New York, 1989); 11-13, William L. Sweet, The Nuclear Age: Atomic Energy, Proliferation, and the Arms Race, 2nd ed. (Washington, 1988), 9.

16. National Archives Microfilm Publications Pamphlet Describing M1392, “Bush-Conant File Relating to the Development of the Atomic Bomb, 1940-1945,” (Washington, D. C., 1990), 2.

17. Albrecht Fölsing, Albert Einstein: A Biography (New York, 1997), 719-20.

18. Ronald E. Powaski, March to Armageddon: The United States and the Nuclear Arms Race, 1939 to the Present (New York, 1987), 18. Joseph Rotblat, 1995 Nobel Peace laureate, left Los Alamos in 1944 upon learning that Germany was not developing an atomic bomb. His moral opposition to continued atomic-weapons development was, however, a solitary act of protest and not part of any organized effort. He was threatened with arrest if he discussed his anti-bomb beliefs and, therefore, dissembled that family reunification in Europe was his reason for leaving the Manhattan Project. See Joseph Rotblat, “Leaving the Bomb Project,” in Ending War: The Force of Reason, Essays in Honour of Joseph Rotblat, Maxwell Bruce and Tom Milne, eds. (London, 1999), 12-13; Susan Landau, “From Fission Research to a Prize for Peace,” Scientific American, January 1996, 39.

19. “Szilard Petition Cover Letter,” July 4, 1945, roll 9, file 108, H-B Files.

20. “A Petition to the President of the United States,” July 3, 1945, roll 9, file 108, H-B Files.

21. Lawrence S. Wittner, Resisting the Bomb: A History of the World Nuclear Disarmament Movement, 1954-1970 (Stanford, 1997), 256.

22. “Petition to the President,” July 3, 1945.

23. Ibid. [Emphasis Added).

24. Oak Ridge Petition, July 13, 1945.

25. Ibid. [Emphasis added]. This would have contrasted significantly with the Potsdam Declaration of July 26 which did not specify an atomic weapon in its warning of “prompt and utter destruction.”

26. Arthur Holly Compton, Atomic Quest: A Personal Narrative (New York, 1956), 243. Compton belonged to the Scientific Advisory Panel that found no “acceptable alternative to direct military use.”

27. George W. Parker to Arthur Holly Compton, July 16, 1945; roll 6, file 76, H-B Files. M. D. Whitaker’s name appears just below Compton’s as an addressee in whose care the letter would be sent to Compton. On atomic diplomacy see Alperovitz, Atomic Diplomacy: Hiroshima and Potsdam, the Use of the Atomic Bomb and the American Confrontation with Soviet Power (New York, 1985); Alperovitz, Decision to Use; Powaski, The Cold War: The United States and the Soviet Union, 1917-1991 (New York, 1998), 67.

28. Parker to Compton, July 16, 1945.

29. “A Petetion [sic] to the Administration of Clinton Laboratories,” ND, roll 6, file 76, H-B Files.

30. William Lanouette, “A Note on the July 17th Petition,” Kai Bird and Lawrence Lifschultz, eds., Hiroshima’s Shadow (Stony Creek, Conn. 1998), 558-59.

31. “Petetion [sic] to the Administration.” DSM stood for Development of Substitute Materials which was yet another code name for the secret atomic-bomb project. Shortly after the war, Ballantine became more circumspect in his overt support for nuclear weapons when he signed a Clinton petition that criticized General Leslie R. Groves for publicly dismissing the possibility of nuclear proliferation and claiming an American nuclear monopoly would guarantee victory in a future war. “To the Interim Committee on Nucleonics,” September 24, 1945, roll 6, file 77, H-B Files. I was informed about the September petition by Gene Dannen e-mail to the author, July 12, 1999. Dannen’s website, http://www.dannen.com/szilard.html contains a very useful annotated chronology of many documents from Manhattan Project scientists that involve the decision to use the atomic bomb.

32. Ibid.

33. Ibid. While it accurately assessed in principle the conditional-moral argumentation of Szilard’s petition, the latter claimed, after Germany’s surrender, that the initial rationale of DSM to prevent a German atomic monopoly was “averted.”

34. Ibid.

35. Interview with Dr. Albert Wattenberg, April 24, 1992, 24, Argonne National Laboratory History Project, Albert Wattenberg Papers, National Archives—Great Lakes Region (Chicago). This is a transcript of an oral history with Wattenberg, a Metlab physicist, who signed the Szilard petition.

36. Arthur H. Compton to Colonel K. D. Nichols, July 24, 1945, roll 6, file 76, H-B Files.

37. “A Petition to the President of the United States,” July 17, 1945, roll 6, file 76, H-B Files. The copies varied in numbers of signatures from two to fourteen.

38. Leo Szilard to Arthur Holly Compton, July 19, 1945 and August 6, 1945, roll 6, file 76, H-B Files; See also Leo Szilard to Matthew J. Connelly, August 17, 1945; Leo Szilard to Robert M. Hutchins, August 29, 1945, in Spencer R. Weart and Gertrude Weiss Szilard, eds., Leo Szilard: His Version of the Facts, Selected Recollections and Correspondence (Cambridge, Mass., 1978) 215-16, 220.

39. F. L. Parks to A. J. Muste, May 31, 1946, roll 6, file 76, H-B Files.

40. “President Truman Did Not Understand,” U.S. News and World Report, August 15, 1960, 69.

41. Lloyd C. Gardner, Architects of Illusion: Men and Ideas in American Foreign Policy, 1941-1949 (New York, 1970), 182. The Franck Report initially was published in “Before Hiroshima,” The Bulletin of the Atomic Scientists, May 1, 1946.

42. Alperovitz, Decision to Use, 190.

43. Bird and Lifschultz, “Editors’ Note,” 552. In addition to the seventy signatures on the Szilard petition, eighty-seven names appear on Clinton Laboratories petitions. These figures exclude the July 3rd petition that was superseded by the July 17th version. However, Szilard later claimed he obtained “about fifty-three signatures” on the July 3rd draft. See Weart and Szilard, Leo Szilard, 187.

44. The list is untitled and contains only the date of the Szilard petition: July 17, 1945, roll 9, file 108, H-B Files. Ten women signatories appeared, in the following order, on the petition’s composite list: Ethaline Hartge Cortelyou, junior chemist, Katharine Way, research assistant, Mary Burke, research assistant, Mildred C. Ginsberg, computer, Hoylande Young, senior chemist, Information Section, Miriam P. Finkel, associate biologist, Mary M. Dailey, research assistant, Margaret H. Rand, research assistant, Health Section, Marguerite N. Swift, associate physiologist, Health Group, and Marietta Catherine Moore, technician. Of the eighty-seven Clinton personnel who signed petitions, all appear to be male.

45. The revised composite is untitled and contains only the date of the Szilard petition: July 17, 1945, roll 6, file 76, H-B Files. A handwritten note with unrecognizable initials accompanied it: “This is a list of people who signed the Szilard Petition of 17 July 45 to the President. There is included in brief the information on each person available in the Chicago area files.” July 2, 1947, roll 6, file 76, H-B Files.

46. For a comprehensive treatment of Cold War repression of liberal scientists see Jessica Wang, American Science in an Age of Anxiety: Scientists, Anticommunism, and the Cold War (Chapel Hill, 1999).

47 “Petition to the President,” July 3, 1945; “Petition to the President,” July 17, 1945. [Emphasis added].

48. Ibid. [Emphasis added].

49. Ibid.

50. Donna Gregory, ed., The Nuclear Predicament: A Sourcebook (New York, 1986), 5.

51. R. Gordon Arneson, “Memorandum for the Files,” May 24, 1946, 4, roll 6, file 76, H-B Files. While recording secretary, Arneson was then a second lieutenant. See also Richard Rhodes, The Making of the Atomic Bomb (New York, 1988), 634, 644.

52. “Notes for Possible Use of Secretary Patterson In Talking to Mr. Charles Ross,” ND, roll 6, file 76, H-B Files. Robert Patterson followed Stimson as Truman’s secretary of war and Ross was the White House press secretary. These notes were certainly written by Arneson, because entire passages of these “talking points” appeared verbatim in his “Memorandum for the Files.”

53. Compton to Nichols, July 24, 1945. [Emphasis added].

54. Compton, Atomic Quest, 241.

55. Ibid. These “known conditions” were not defined in the petition but presumably left for the Truman Administration to determine.

56. K. D. Nichols to Leslie R. Groves, July 25, 1945, roll 6, file 76, H-B Files.

57. Szilard to Compton, July 19, 1945.

58. Ibid.

59. Ibid.

60. William Lanouette, with Bela Silard, Genius in the Shadows: A Biography of Leo Szilard, The Man Behind the Bomb [Chicago, 1992), 274. Silard, Szilard’s brother, shortened his surname.

61. Arthur H. Compton and Farrington Daniels, “A Poll of Scientists at Chicago, July 1945,” Bulletin of the Atomic Scientists, February 1948, 44, 63.

62. “Notes for Possible use of Secretary Patterson.” The president was out of the country, due to the Potsdam Conference, from July 6 to August 7. See Arneson "Memorandum," 3. It is possible that Truman may have seen an antibomb letter from an O. C. Brewster, from New York, an engineer with the Manhattan Project. See Robert J. Donovan, Conflict and Crisis: The Presidency of Harry S. Truman, 1945-1948 (New York, 1977), 69-70; Fletcher Knebel and Charles W. Bailey, “The Fight Over the A-Bomb,” Look, August 13, 1963, 20-21.

63. Raymond Swing, In the Name of Sanity (New York, 1945, 1946), 74. Since the Franck Report was completed five weeks before Trinity, one may conclude he was referring to a Szilard petition. On his internationalist perspective see especially chapters 1-2, 18-21. On Swing’s critique of nuclear weapons see John Lewis Gaddis, The United States and the Origins of the Cold War, 1941-1947 (New York, 1972), 269.

64 Knebel and Bailey, “Fight Over the A-Bomb,” 22.

65 Ibid. [Emphasis added].

66 Jacob Bronowski, The Ascent of Man (Boston, 1973), 370; Arthur Steiner, “Scientists and Politicians: The Use of the Atomic Bomb Reexamined,” Minerva, (Summer, 1977), 258-59.

67 Martin Harwit, An Exhibit Denied: Lobbying the History of Enola Gay (New York, 1996), 234-35.

An earlier version appeared in American Diplomacy under the title: “False Dissenters: Manhattan Project Scientists and the Use of the Atomic Bomb.” All photos derived from Google Images. Comments to kirstein@sxu.edu

http://www.moorestevie.com/img8/awol2.gif

DR KUKLO RESIGNS IN DISGRACE

From: Lin Noomis

Sent: Wed 7/15/2009 1:36 PM
To: Kirstein, Peter N.
Subject: Kuklo issue

I read you[r] blog with interest. The numbers/math are very surprising. As a veteran, I know that employment outside of the military requires approval from superiors. Apparently he did not have this. Also, Kuklo did not leave the military until March 2007, yet was full time at Wash University in Aug 2006. it is impossible to accrue enough military leave to cover this time span. The maximun consecutive accrued days of leave possible is 90 days, thus if he retired March 1 07, the earliest he could have left Walter Reed would have been Dec 2006.

It appears he was AWOL and triple dipping (Army pay +Medtronic pay + Wash University pay) all at the same time. This all points to a very elaborate thought out plan to make money – unethically. I wonder why the AWOL issue is not discussed. The dates make it impossible for him to have followed the rules.

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Comments:

The New York Times which has done yeoperson work on this case has frequently consulted and visited my blog to obtain information about this scandal. A little reference to my blog or a link might be warranted since I have worked this case for several months too. I have frequently linked and cited the Times so what is good for the goose is good for the gander. However this has been for me a mission to preserve the integrity of the Wash U medical school which was a central part of my family life and protect patients from the egregious venality and unprofessional machinations of one Timothy R. Kuklo, M.D., J.D.

Washington University in St Louis School of Medicine responded to a Congressional inquiry. They determined that Dr Timothy Kuklo did not reveal his pecuniary relationship, during his tenure with the university, with Medtronic prior to conducting research on Infuse. The latter is a protein bioengineered bone-growth product for which the physician-attorney falsified its positive effects during treatment of Iraq war lower-limb casualties. This was an attempt to generate profits as part of a Pay to Fake scheme.

Dr Kuklo, a Georgetown University educated lawyer, is on a paid leave of absence but unconfirmed sources indicate he will not be returning to full time duties at the  university in the fall. Whether he will resign or be fired is apparently the duality of his impending separation from the university. As a tenured faculty member, he can only be fired for cause: certainly falsification of research, forging the signatures of putative co-authors and concealing his financial dealings with Medtronic certainly rises to the level of moral turpitude which is a classic cause for revoking an academician’s continuous tenure.

The military has determined that while on staff at Walter Reed Army Medical Center, Dr Kuklo did not receive or request permission to publish articles on Infuse. The army has a regimen of publication  protocol which the fake researcher simply shirked. Now the issue of A.W.O.L. has been raised by this contributor.

Other Colonel Kuklo {Ret} posts.

August 20, 2009 Dr Kuklo RESIGNS

July 15, 2009 A.W.O.L. Speculation

Million Dollar Baby

June 16. 2009

May 30, 2009

Dr Kuklo leave of absence!

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009 Dr Riew first critiqued

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu

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

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

I will contribute the highlighted entries below on J. Robert Oppenheimer and Academic Freedom.

This work has been delayed several times as a result of wanting to include the latest culture-wars phenomena of the Obama transition to power. The editor Roger Chapman has certainly undertaken an ambitious project on a topic of unending complexity and progression. While the nation is not as divided as it was during the genocide in Vietnam, there are still progressive elements that engage issues and, however meekly, demand equal justice, civil rights, women’s rights including abortion rights and an end to American imperial dominance and militarisation.

These are the current content entries which is quite comprehensive and ideologically inclusive in scope.

Abortion; Abu Ghraib and Gitmo; Academic Bill of Rights; Academic Freedom; Adler, Mortimer J.; Affirmative Action; Afrocentrism; Age Discrimination; Agnew, Spiro T.; AIDS; Alexander, Jane; Ali, Muhammad; American Century; American Civil Liberties Union; American Civil Religion; American Exceptionalism; American Indian Movement; Americans with Disabilities Act; Androgyny; Angelou, Maya; Animal Rights; Anti-Intellectualism; Anti-Semitism; Arnold, Ron; Arrow, Tre; Aryan Nations; Atwater, Lee; Automobile Safety

Baez, Joan; Bankruptcy Reform; Barbie Doll; Battle of Seattle; Beauty Pageants; Behe, Michael J.; Bell Curve, The ; Bennett, William J.; Biafra, Jello; Biotech Revolution; Birth Control; Black Panther Party; Black Radical Congress; Blackface; Bob Jones University; Bono; Book Banning; Boy Scouts of America; Bradley, Bill; Brock, David; Brokaw, Tom; Brown, Helen Gurley; Brown v. Board of Education (1954); Bryant, Anita; Buchanan, Pat; Buckley, William F., Jr.; Budenz, Louis F.; Bullard, Robert D.; Bunche, Ralph; Bush Family; Busing, School; Byrd, Robert C.

Campaign Finance Reform; Campolo, Anthony “Tony”; Canada; Capital Punishment; Carson, Rachel; Carter, Jimmy; Catholic Church; Censorship; Central Intelligence Agency; Chambers, Whittaker; Charter Schools; Chßvez, CTsar; Cheney Family; Chicago Seven; Chick, Jack; China; Chisholm, Shirley; Chomsky, Noam; Christian Coalition; Christian Radio; Christian Reconstructionism; Christmas; Church and State; Churchill, Ward; Civil Rights Movement; Clinton, Bill; Clinton, Hillary; Clinton Impeachment; Cold War; Colson, Chuck; Columbus Day; Comic Books; Comic Strips; Commager, Henry Steele; Common Cause; Commoner, Barry; Communists and Communism; Comparable Worth; Compassionate Conservatism; Confederate Flag; Conspiracy Theories; Contemporary Christian Music; Contract with America; Corporate Welfare; Coulter, Ann; Counterculture; Country Music; Creationism and Intelligent Design; Cronkite, Walter; Cuba; Culture Jamming

Dean, Howard; Dean, James; Dean, John; Deconstructionism; DeLay, Tom; Deloria, Vine, Jr.; Demjanjuk, John; Democratic Party; Diversity Training; Dobson, James; Donahue, Phil; Douglas, William O.; Dr. Phil; Drudge Report ; Drug Testing; D’Souza, Dinesh; Du Bois, W.E.B.; Dukakis, Michael; Duke, David; Dworkin, Andrea; Dylan, Bob

Earth Day; Ecoterrorism; Education Reform; Ehrenreich, Barbara; Eisenhower, Dwight D.; Election of 2000; Election of 2008; Endangered Species Act; English as the Official Language; Enola Gay Exhibit; Environmental Movement; Equal Rights Amendment; Evangelicalism; Executive Compensation

Factory Farms; Faith-Based Programs; Falwell, Jerry; Family Values; Farrakhan, Louis; Federal Budget Deficit; Federal Communications Commission; Felt, W. Mark; Feminism, Second-Wave; Feminism, Third-Wave; Ferraro, Geraldine; Flag Desecration; Fleiss, Heidi; Flynt, Larry; Focus on the Family; Fonda, Jane; Food and Drug Administration; Ford, Gerald; Foreman, Dave; Forests, Parklands, and Federal Wilderness; Foucault, Michel; Founding Fathers; France; Frank, Barney; Franken, Al; Franklin Delano Roosevelt Memorial; Freedom of Information Act; Friedan, Betty; Friedman, Milton; Fundamentalism, Religious; Fur

Galbraith, John Kenneth; Gangs; Gay Capital; Gay Rights Movement; Gays in Popular Culture; Gays in the Military; Gender-Inclusive Language; Generations and Generational Conflict; Genetically Modified Foods; Gibson, Mel; Gilmore, Gary; Gingrich, Newt; Ginsberg, Allen; Global Warming; Globalization; Goetz, Bernhard; Goldwater, Barry; Gonzßlez, Elißn; Gore, Al; Graffiti; Graham, Billy; Great Books; Great Society; Guardian Angels; Gun Control; Guthrie, Woody, and Arlo Guthrie

Haley, Alex; Hall, Gus; Hargis, Billy; Harrington, Michael; Hart, Gary; Harvey, Paul; Hate Crimes; Hauerwas, Stanley; Hay, Harry; Hayden, Tom; Health Care; Heavy Metal; Hefner, Hugh; Heller, Joseph; Helms, Jesse; Heritage Foundation; Hightower, Jim; Hill, Anita; Hill, Julia “Butterfly”; Hillsdale College; Hiroshima and Nagasaki; Hispanic Americans; Hiss, Alger; Hoffman, Abbie; Hollywood Ten; Holocaust; Homeschooling; hooks, bell; Hoover, J. Edgar; Horowitz, David; Horton, Willie; Human Rights; Humphrey, Hubert H.; Hunter, James Davison; Huntington, Samuel P.; Hurricane Katrina; Hutchins, Robert M.

Illegal Immigrants; Immigration Policy; Indian Casinos; Indian Sport Mascots; Individuals With Disabilities Education Act; Internet; Iran-Contra Affair; Irvine, Reed; Israel

Jackson, Jesse; Jackson, Michael; Japan; Jehovah’s Witnesses; Jesus People Movement; John Birch Society; Johnson, Lyndon B.; Jorgensen, Christine; Judicial Wars

Kennedy Family; Kerouac, Jack; Kerry, John; Kevorkian, Jack; Keyes, Alan; King, Billie Jean; King, Martin Luther, Jr.; King, Rodney; Kinsey, Alfred; Klein, Naomi; Koop, C. Everett; Kristol, Irving, and Bill Kristol; Krugman, Paul; Kubrick, Stanley; Kushner, Tony; Kwanzaa; Kyoto Protocol

La Follette, Robert, Jr.; La Raza Unida; Labor Unions; LaHaye, Tim, and Beverly LaHaye; Lapin, Daniel; LaRouche, Lyndon H., Jr.; Lear, Norman; Leary, Timothy; Lee, Spike; LeMay, Curtis; Leopold, Aldo; Lesbians; Lewis, Bernard; Liddy, G. Gordon; Limbaugh, Rush; Literature, Film, and Drama; Lott, Trent; Love Canal; Loving, Richard, and Mildred Loving; Lynching

MacKinnon, Catharine; Madonna; Mailer, Norman; Malcolm X; Manson, Marilyn; Mapplethorpe, Robert; Marriage Names; Marxism; McCain, John; McCarthy, Eugene; McCarthy, Joseph; McCarthyism; McCloskey, Deirdre; McGovern, George; McIntire, Carl; McLuhan, Marshall; McVeigh, Timothy; Mead, Margaret; Media Bias; Medical Malpractice; Medical Marijuana; Medved, Michael; Men’s Movement; Mexico; Microsoft; Migrant Labor; Militia Movement; Milk, Harvey; Millett, Kate; Million Man March; Miranda Rights; Mondale, Walter; Montana Freemen; Moore, Michael; Moore, Roy S.; Moral Majority; Morgan, Robin; Morrison, Toni; Mothers Against Drunk Driving; Motion Picture Association of America; Moynihan, Daniel Patrick; Ms.; Multicultural Conservatism; Multiculturalism and Ethnic Studies; Mumford, Lewis; Murdoch, Rupert; Murrow, Edward R.; Muslim Americans; My Lai Massacre

Nader, Ralph; Nation, The ; Nation of Islam; National Association for the Advancement of Colored People; National Endowment for the Arts; National Endowment for the Humanities; National Organization for Women; National Public Radio; National Review ; National Rifle Association; Nelson, Willie; Neoconservatism; New Age Movement; New Deal; New Journalism; New Left; New York Times, The ; Niebuhr, Reinhold; Nixon, Richard; Norquist, Grover; North, Oliver; Not Dead Yet; Nuclear Age

Obama, Barack; Obesity Epidemic; Occupational Safety; O’Connor, Sandra Day; O’Hair, Madalyn Murray; O.J. Simpson Trial; Operation Rescue; Oppenheimer, J. Robert; O’Reilly, Bill; Outing

Packwood, Bob; Paglia, Camille; Palin, Sarah; Parks, Rosa; Penn, Sean; People for the Ethical Treatment of Animals; Perot, H. Ross; Phelps, Fred; Philadelphia, Mississippi; Pipes, Richard, and Daniel Pipes; Planned Parenthood; Podhoretz, Norman; Police Abuse; Political Correctness; Pornography; Postmodernism; Premillennial Dispensationalism; Presidential Pardons; Prison Reform; Privacy Rights; Privatization; Progressive Christians Uniting; Promise Keepers; Public Broadcasting Service; Punk Rock

Quayle, Dan

Race; Racial Profiling; Rand, Ayn; Rap Music; Rather, Dan; Reagan, Ronald; Record Warning Labels; Red and Blue States; Redford, Robert; Redneck; Reed, Ralph; Rehnquist, William H.; Relativism, Moral; Religious Right; Reparations, Japanese Internment; Republican Party; Revisionist History; Right to Counsel; Right to Die; Robertson, Pat; Rock and Roll; Rockwell, George Lincoln; Rockwell, Norman; Rodman, Dennis; Roe v. Wade (1973); Rosenberg, Julius, and Ethel Rosenberg; Rove, Karl; Ruby Ridge Incident; Rudolph, Eric; Rusher, William A.; Ryan, George

Said, Edward; Same-Sex Marriage; Sanders, Bernie; Saudi Arabia; Schaeffer, Francis; Schiavo, Terri; Schlafly, Phyllis; Schlesinger, Arthur M., Jr.; School of the Americas; School Prayer; School Shootings; School Vouchers; Schwarzenegger, Arnold; Science Wars; Secular Humanism; Seeger, Pete; September 11; September 11 Memorial; Serrano, Andres; Sex Education; Sex Offenders; Sexual Assault; Sexual Harrassment; Sexual Revolution; Sharpton, Al; Sheen, Fulton J.; Shelley, Martha; Shepard, Matthew; Shock Jocks; Sider, Ron; Silent Majority; Simpsons, The ; Smoking in Public; Socarides, Charles; Social Security; Sodomy Laws; Sokal Affair; Soros, George; Southern Baptist Convention; Soviet Union and Russia; Sowell, Thomas; Speech Codes; Spock, Benjamin; Springsteen, Bruce; Starr, Kenneth; Stay-at-Home Mothers; Steinbeck, John; Steinem, Gloria; Stem-Cell Research; Stern, Howard; Stewart, Jon; Stone, Oliver;
Stonewall Rebellion; Strategic Defense Initiative; Strauss, Leo; Structuralism and Post-Structuralism; Student Conservatives; Students for a Democratic Society; Summers, Lawrence; Supply-Side Economics; Symbionese Liberation Army

Taft, Robert A.; Talk Radio; Tax Reform; Televangelism; Teller, Edward; Ten Commandments; Terkel, Studs; Thanksgiving Day; Think Tanks; Third Parties; Thomas, Clarence; Thompson, Hunter S.; Three Mile Island Accident; Thurmond, Strom; Till, Emmett; Tobacco Settlements; Tort Reform; Transgender Movement; Truman, Harry S.; Turner, Ted; Twenty-Second Amendment

Unabomber; United Nations; USA PATRIOT Act

Ventura, Jesse; Victimhood; Vidal, Gore; Vietnam Veterans Against the War; Vietnam Veterans Memorial; Vietnam War; Vigilantism; Voegelin, Eric; Voting Rights Act

Waco Siege; Wall Street Journal, The ; Wallace, George; Wallis, Jim; Wal-Mart; Walt Disney Company; War on Drugs; War on Poverty; War Powers Act; War Protesters; War Toys; Warhol, Andy; Warren, Earl; Warren, Rick; Washington Times, The ; Watergate; Watt, James; Watts and Los Angeles Riots, 1965 and 1992; Wayne, John; Wealth Gap; Weekly Standard, The ; Welfare Reform; Wellstone, Paul; West, Cornel; Weyrich, Paul M.; Whistleblowers; White, Reggie; White Supremacists; Wildmon, Donald; Will, George; Williams, William Appleman; Wilson, Edmund; Winfrey, Oprah; Wolf, Naomi; Wolfe, Tom; Women in the Military; Women’s Studies; Woodward, Bob; World ; World Council of Churches; World War II Memorial; Wounded Knee Incident

Young, Neil

Zappa, Frank; Zero Tolerance; Zinn, Howard

I was walking with my backpack on the way to Cafe Presse on Capitol Hill in Seattle when I saw the preparatory staging of the Pride parade. It had not started but I could see a marching band rehearsing, corporate sponsored logos such as Orbitz Gay travel floats and Microsoft-sponsored platforms. Anyway, I walked up a steep hill to the Cafe, then north on 14th Avenue to Volunteer Park to see the Conservatory and the Water Tower view of the sparkling city. As I headed back to my hotel down Pine Street, I could see the Space Needle again. I had seen it from a ship traversing Puget Sound on the west and through the “Black Sun” sculpture of Isamu Noguchi which is right in front of the Seattle Asian Art Museum in Volunteer Park. It looks more like a doughnut but according to the New York Times inspired Soundgarden’s grunge anthem “Black Hole Sun.”

http://tbn3.google.com/images?q=tbn:pbZ791SOdAf_yM:http://farm4.static.flickr.com

Anyway on my downhill return to the waterfront, I got to Union and the Pride Parade was still in full swing some two hours after my initial pre-parade encounter. I had never witnessed a gay-pride parade before or any parade since my parents would take me to a July 4th event every year on Lindell Blvd. in St Louis. I was able to catch a space between floats and dash across 4th Avenue but decided to stop and watch the extravaganza.

The parade was mobbed. I noticed a float with: “Atheists believe in you” and smiled, applauded and admired the touch. Then I saw some HIV/AIDS sponsors as they passed out written information. Signs declaring “Use a condom” were passing me as I stood on the corner as a policeperson tried to get the crowd back onto the sidewalk. Then the United Church of Christ displayed its solidarity. Folks were screaming with joy and clapping as display after display rolled by. Yes there were the narcissistic bare-chested-only-underpants wearing men on a float and one or two drag queens but most of the parade thematics were quite educational and progressive in substance. “Remember Stonewall.” “Marriage should be Equal.” “Our time has come.”  “Don’t Discriminate by Gender” etc.

I did not ask spectators what their orientation was but I was struck at the large numbers and wondered, “Were they all gay?” Probably not since I am straight and folks like a good parade. A great parade actually in a very progressive city. The Seattle Times on its front-page covered the event and also listed Pride events for the weekend.  I did not see President Barack Obama in the parade or Hillary Clinton but I suppose Barack was getting ready for his chat in the White House on Monday with gay and lesbian organisational leaders and Hillary was probably just being Hillary. Wondering if those “Hard working Americans. White Americans” which was her racist mantra during the primaries in 2008 would ever be able to vote for her again for president. I hope not as the wife of Mr Racist (remember the South Carolina primary remarks?)  D.O.M.A. revels in her splendour.

That evening I went out for dinner to Wild Ginger to get some clams and scallops and the parade was over and the area was pretty empty.  Later as I was getting read for bed, I thought well the police this time were protecting spectators and Pride participants, watching to preserve order and basically just doing their job. Not hassling, or breaking up folks enjoying what was then one of the few public spaces where homosexuals could socialise: gay bars. So some manifestations of overt persecution have ended as evidenced with the reversal of the sodomy is a crime Bowers v Hardwick (1986) case with the Lawrence v Texas case in 2003. A little stare decisis can be dangerous and oppressive. I am glad it was eviscerated in this instance.

One of the reasons I used “Coming Out Straight” as part of the subject title was up until a few years ago I was afraid to discuss the Gay Liberation struggle in my history classes. It was like well they may think I am gay or something as if that would be so bad. In my syllabus I first stated I was straight. Then I removed that but when distributing a handout outline, I indicated  I did not participate in the gay lifestyle. This year I hope to treat it more as a normal topic for a history survey course like women’s or African-American history. Historians have generally avoided the gay and lesbian topic for reasons which may be either fear of misidentification or underestimating its importance in the tapestry of American history.

Coming out straight may be necessary in achieving a comfort level in discussing the topic of homosexuality for some–especially those teaching at a conservative (at least by my standards to be sure), Catholic university. Yet avoiding the topic ignores a significant contemporary and historic phenomenon of  the struggle for human rights and equal justice. One’s orientation is irrelevant in terms of character and ability and citizenship. The more open gays and straights are about the persecution of gays and lesbians and transgender and bisexuals then the veil of silence will be lifted further and a just society more comprehensively advanced.

SERE stands for Survival Evasion Resistance Escape. All departments of the imperialist forces train with this interrogation nonsense including the navy at Naval Air Station Brunswick, Maine where my interlocutor is stationed. These folks “practice” torture, barbaric tactics of cruelty and softening, sleep deprivation, physical abuse, walling, temperature alteration and other cruel and inhumane tactics forbidden under international and even US law. Devised in the 1950s due to torture against Americans in Korea, SERE’s reverse-engineered torture so Americans could learn it as practitioners or as the party line says survive it. I am certain that at one time they also practiced waterboarding but have no evidence that is occurring now even as part of their training. The US is the world’s leading rogue state and its most violent threat to international peace and security. I find it ironic that it trains its personnel to overcome these cruel and degrading practices given the fact the US is the main perpetrator of these foul deeds. A Freudian might say this is a case of national projection of its evil ways onto others: Abu Ghraib, Bagram, Extraordinary Renditon, Guantánamo death camp, criminal Iraq and Afghan wars in general.

From: Luedke, Barry T IT1 Faso, SERE [mailto:barry.luedke@navy.mil]
Sent: Tue 6/30/2009 6:28 AM
To: Kirstein, Peter N.

Hey Pete,

By the way, nice propaganda blog about me on your website:  http://english.sxu.edu/sites/kirstein/
That’s the problem with liars like you. You distort the truth. I never said anything about “loving guns”, yet you put that right under my name. It is both funny and pathetic at the same time. You claim to be a history professor? If you knew anything about history, you would know that socialism, and the way you think have not only been complete failures, but were responsible for the slaughter of millions of people. There were others in history who thought the way you do. Stalin, Hitler, Mao, and Lenin. Have you ever heard of them? They were responsible for the deaths of nearly 80,000,000 people. I think you can learn a lot from history. If only you would enlighten yourself to truth instead of propaganda and lies.

IT1(SW) Luedke
SERE EAST NASB
Brunswick, ME

—————————————————————————————

From: Kirstein, Peter N.
Sent: Tue 6/30/2009 10:35 AM
To: Luedke, Barry T IT1 Faso, SERE

Dear Barry Luedke:

I think calling me a “liar” does not contribute to the dialogue between those of us who are antiwar and those who are more bellicose. However, I think you fail to differentiate between democratic socialism, fascism and communism. Socialism or even Marxian communism does not envision a strong central government with dictatorial powers and the absence of a civil society. Indeed socialism emphasises equality, freedom with a vital state supervisory role.

In the US we unfortunately are not as far advanced in achieving socialism as other countries but we are not totally lacking. Social Security, Medicare, Medicaid, Pell Grants and the stimulus package are examples of using the state to create a more just society.

So try to avoid sensationalising, as if you were FOX news, what socialism is and what it is not. I think your quotation of your entire first e-mail indeed reflected love of guns and the use or threat of force and destruction to achieve peace. I believe I adequately described your message.

BTW: Norman Thomas was a dear man, a wonderful person. He was not a warmonger, a lover of dictatorship or even a communist. Many of his views by the way did become practice as we moved, however slowly, toward a more socialist view of society with less competition and more cooperation.

Yours against American militarism.

Peter

From: Luedke, Barry T IT1 Faso, SERE [mailto:barry.luedke@navy.mil]
Sent: Mon 6/29/2009 2:50 PM
To: Kirstein, Peter N.
Subject: Something to ponder….

Know guns, know peace.
No guns, no peace…

IT1(SW) Luedke
SERE EAST NASB
Brunswick, ME   “The American people will never knowingly adopt Socialism. But under the name of ‘liberalism’ they will adopt every fragment of the Socialist program, until one day America will be a Socialist nation, without knowing how it happened.”     – Norman Mattoon Thomas 1928.

From: Kirstein, Peter N.
Sent: Mon 6/29/2009 6:25 PM
To: Luedke, Barry T IT1 Faso, SERE

Dear Information Technician Luedke:

I agree with former presidential candidate Norman Thomas and do hope we achieve democratic socialism so our 48,000,000 citizens without health care would be covered LIKE you are at public expense and those without jobs are taken care of etc. If you are in the navy, you appear to have been brainwashed into believing that only violence can defend our freedom and that capitalism is superior, which unregulated can lead to horrendous suffering and social dislocation. Also those officers, I presume navy, who authorised those snipers to murder like cowards those, black, young, desperate, poor Somali pirates have blood on their hands. There was no reason to treat unresisting civilians in that manner. It lowers the navy to the level of those pirates in my opinion.

Also if you contact me again, kindly address me by name and sign your e-mail. I expect you as I did when I was in the military to comport yourself in a professional manner toward those you claim to serve.

I am sincerely yours,

Peter N. Kirstein

The New York Times which broke the story due to army-leaked information and to its credit persisted in unmasking the criminal Washington University in St Louis surgeon Dr Timothy R. Kuklo, has reported that he received $788,280 in payments from Medtronic between 2001 and 2009. Buried in the story, however, and not very well edited is the revelation that Medtronic’s Pay to Fake scheme also dished out $64,000 for “indirect” expenses such as travel to professional meetings etc.

Such a payment is hardly “indirect” whatever that means. Travel is expensive: hotel, rental, air travel. Therefore $852,280 was paid to Dr Kuklo. One may surmise that the colonel either independently or in collaboration with Medtronic faked and published medical-research claims that its bioengineered bone-growth product Infuse was a breakthrough in lower-limb restoration. Dr Kuklo lied about collaboration with other researchers at Walter Reed Army Medical Center by forging their signatures and was disgraced with the retraction of a published article in the London-based Journal of Bone and Spine Surgery.

Yet the New York Times made an error in its June 17 report. It identified the fake medical researcher as “assistant medical professor” in the Washington University in St Louis School of Medicine.  He is an associate professor of orthopaedic surgery with putative clinical specialties in the Cervical Spine (all pathologies); Spinal Deformity (both pediatric and adult); Spinal Tumors; Spine Trauma which this link clearly authenticates. Rarely does an assistant professor have tenure. The colonel has tenure but should be fired on the grounds of moral turpitude.

Dr Kuklo’s next home? His current one is worth $2.1 million according to the New York Times .

I would opine that the intentional publication of falsified medical research that could lead to misguided and harmful patient treatment is criminal.  The potential for inappropriate use of Infuse as a result of the doctor’s article I think merits incarceration as criminal negligence. I would argue that the falsification of signatures of four distinguished physicians–some of whom are senior army officers– to create the impression of authentic team research investigatory methods is certainly libelous. To place the names of other researchers on a falsified article would certainly appear to indicate libel in deliberately and knowingly publishing false information that could damage a physician’s career.  I know I would sue an investigator who listed me on an article in which data was invented, patient cohorts fabricated and conclusions concocted as part of a Pay to Fake scheme.

The failure to receive Army approval for publication should at least merit a dishonourable discharge and a retroactive reduction in rank to private. I have argued that the University of Connecticut should revoke Dr Kuklo’s medical degree from that institution. I am also questioning whether the administration of Washington University in St Louis Medical School should be fired or if tenured reassigned to other duties for allowing both Dr Kuklo and Dr K Dan Riew to either become players of a Pay to Fake scheme or cover up their venality. Administrators have a responsibility to ensure the highest ethical behaviour on the part of their faculty and failure to do so with such apparent insouciance is unworthy of the esteemed institution.

While I do not know if Dr Riew has committed any unprofessional research fraud, it is apparent he did not sufficiently disclose his massive compensation as a consultant to Medtronic in which hundreds of thousands of dollars were paid for  “product development and innovation.” Pay to Fake?? The question is legitimate without making a direct allegation.

Medtronic (MDT) raised its dividend today by 9% and closed at 33.35 up 1.28%. It’s nice to know its shareholders are doing well with this blood money. They would be well advised, however, to use some other big pharma company’s products.

Other articles on disgraced  Washington University’s Colonel Kuklo:

AWOL from Military? July 15, 2009

Million Dollar Baby

June 16. 2009

May 30, 2009

Dr Kuklo leave of absence!

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009 Dr Riew first critiqued

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu

I was the first to detail and explicate the significant collaborative relationship between the two orthopaedic surgeons at Washington University Medical School. Yet the waters are rising further  because Dr Riew is also a paid medical consultant for Medtronic-a company that describes itself as “the world leader in medical technology.”  Senator Charles Grassley,  a moderate Republican of Iowa, has been attempting to investigate the corporate corruption of medical research whereby allegedly neutral-based study is funded by companies hoping to achieve greater FDA-use  approval or simply promote an existing product. Pay to Fake is basically what this is about. Doctors get big bucks to conduct research and lie about a medical product’s glorious impact on wellness. The utter lack of transparency may be the reason why so many medical products and drugs are subject to recall, later receive black box warnings or are proven to be dangerous.

pax de deux

The St Louis Beacon, an online publication, has revealed that the Medtronic cancer is spreading rapidly throughout the Washington University School of Medicine. Dr Riew was also receiving payments from Medtronic and apparently is under investigation by the Senate Finance Committee.

Apparently Dr Riew has lied about the amount of compensation from Medtronic:

“Specifically, Grassley said that according to documents submitted by the university from 2006, “‘Dr. Riew indicated that he received compensation of less than $10,000 from Medtronic. In fact, Medtronic reported to me that there was not a single year from 2003 to 2007 for which Dr. Riew received less than $10,000. In fact, he received well over $10,000 in compensation during each of those years.’”

Dr Riew of course says he provided estimates that preceded the actual money ponied up yet for 5 years he was receiving financial compensation from Medtronic. In 2005 he received $133,000, a tad more than the $50,000+ he recorded. This physician should return all the money he received over this period to Medtronic or publicly produce an image of a check of the total amount given to some medical unit. I would suggest the American Lung Association, the Rehabilitation Institute of Chicago and/or Northwestern Memorial Hospital. They are world class and have no history of Pay to Fake

I was right even though it was a hunch. Dr Riew’s rosy scenario in the St Louis Post-Dispatch belied the fact he too was on the take from Medtronic–a company that should be fined and frankly terminated by the Obama administration, the Food and Drug Administration, the Department of Justice.

I am not suggesting that Dr K Dan Riew has engaged in the type of career-ending, license-revocation actions as has the inscrutable Dr Kuklo. I have suggested Dr Riew is less than impartial in his assessment of Dr Kuklo and could be guilty of inappropriate financial dealings with Medtronic. Whether his research is tainted and skewed to conceal actual research findings is beyond my pay grade. I am a professor of history and got into this because of my father’s long-term faculty status at Wash U Medical School and other family ties to the university.  I attended it while in college. The medical school is in crisis and I believe should fire its dean and other senior officers in a clean sweep of this detritus.

hat tip to TP

Other articles on disgraced Colonel Kuklo:

July 15, 2009 Dr Kuklo AWOl?

Million Dollar Baby

June 16. 2009

May 30, 2009

Dr Kuklo leave of absence!

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009 Dr Riew first critiqued

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu

“American Imperialism and the Paranoid Style of American Politics.”

Richard Hofstadter, a major American historian of the postwar era, wrote an essay for Harper’s magazine, The Paranoid Style in American Politics in 1964. Whether it was Roman Catholicism, populism or masonry, communism or McCarthyism, this tendency to construe America as a nation under siege is a strong undercurrent of its oppressive culture and ethos. Yet I think paranoia is to a large extent cynically manufactured by the ruling classes in order to advance their personal quest of power projection and global domination.

An example was the shameless political advertisement of Democratic presidential candidate, Senator Hillary Rodham Clinton, Democrat of New York. It depicted a phone ringing in the White House at 3:00 a.m. to suggest that then Senator Barack Obama, Democrat of Illinois, could not be trusted as Commander in Chief and lacks the capacity to deal with an unannounced threat to the national interest. The ad was also inherently racist, as it depicted non-African-American children sleeping at that hour, but vulnerable if an African-American were elected president. It simply pandered to age-old hysterical themes of racial and national-security insecurities. Hysteria is frequently a manufactured by-product of power maximizing. An imperial, racist nation that practices global state terrorism is unwilling to encounter its own malevolence and so it projects onto others irrational qualities of evil and power. Recall the criminal invasion of Iraq on March 19, 2003 was fueled by a hysterical overreaction to both the potential power and putative presence of non-existent weapons of mass destruction.

Jihadists, Muslims in general, terrorists, Al Qaeda, Hizbollah, Hamas, al Quds unit of the Iranian Revolutionary Guard Corps and the Kurdistan Workers’ Party (P.K.K.) are designated or depicted as terrorist organisations. The Department of State would be well served to designate the United States as a terrorist organisation if that term is going to be utilised to designate crimes against civilians committed for political objectives. The deemphasis on using the word “terror” is noticeable since Barack Hussein Obama became the 44th president on January 20, 2009.

Yet the continued listing of so-called terrorist nations or non-state actors is an effort to dehumanise and marginalise those who have legitimate grievances against the United States, Israel and other oppressive governments. No other nation is as frightened as the United States about the external world and yet ironically no other nation can project power across the full spectrum of military assets. Yet this power has led to a perpetual unease, a sense of hysteria, a compulsion and addiction to war, a rogue state status of human rights violations and a slow but palpable decline in both the standard of living and civil liberties.

America’s greatest enemy is not external but internal. The power elites ranging from the neo-conservatives, the Israel Lobby, the centrist supporters of imperial overstretch such the Council on Foreign Relations, the Democratic and Republican parties, the immoral and unethical rulers of Wall Street and the Pentagon are the true enemies of the people. Great nations cannot sustain popular support of its endless wars and military adventurism unless it convinces the populace that their freedoms are enhanced by this madness.

Most Americans are proud of their country’s superpower status and are convinced that their freedom and putative democracy are sustained and nourished by constant muscular vigilance, frequent wars and an unrestrained worshipping of its military culture. Indeed, patriotism and love of country are to a large extent predicated on the belief that the American military is the sine qua non for our prosperity, protection and stability as a nation. Military academies, think tanks, specialised military universities, war-memorial monuments as prolific as McDonalds’s restaurants, veterans groups, Air Force Ones, marine presidential helicopters, colour guards, bellicose “bombs bursting in air” national anthems, p.o.w. flags, national holidays such as Memorial Day, Veterans Day, Independence Day and lesser ones as Armed Forces Day and the universality of the American flag are constant reminders of martial attributes that embrace war and violence to resolve interstate conflict. Washington, D.C. is virtually a military theme park that reflects the core values of the nation with scant attention to international peace and security.

At some point, the military empire that undermines our nation’s security needs to be dismantled and downsized in a manner that would not lead to unilateral disarmament beyond legitimate self-defence, but would clearly reduce the capacity of the arrogant hyperpower to wage war. Speaking truth to power, the United States of America is such a dangerous, irresponsible and destructive force, that for the sake of international peace and security, America must become a less powerful and more rational-state actor. The Fate of the Earth hangs in the balance.

Presidential Election, 2008:

I would prefer that one of the major candidates would have stated categorically that American imperialist forces would be withdrawn from Iraq without the usual qualifications of “orderly,” “systematically” etc. and critique the war in a manner that does not merely emphasise its impact on United States vital strategic interests in Afghanistan but as an immoral and ruthless projection of American power. The only candidate that did not vote for the authorisation to use force was former Senator Barack Obama. Even though he was not serving in the United States Senate but the Illinois State Senate, he publicly opposed the war on October 2, 2002, nine days before the Senate, with a Democratic party majority I might add, approved the evil joint-war resolution to send American military forces to Iraq.

In comparison to then Senator Clinton, there could be construed a greater credibility in the Illinois senator’s plan to withdraw one to two combat brigades a month and complete the withdrawal in sixteen months. As president, he appears to be implementing this phased withdrawal from Iraq and then deploying them to Afghanistan.

Senator Obama stated before his election as president he would engage in direct diplomacy with heads of state with which the United States has adversarial relations. These would include Iran, Cuba, the Democratic People’s Republic of Korea, Venezuela and Syria that would be diplomatically engaged without preconditions but with a suggested agenda of relevant items. Senator John McCain, Republican of Arizona, and Mrs. Clinton, now ironically secretary of state, rejected such a rapprochement as naïve and as giving aid and comfort to our enemies.

The old politics of Cold War era confrontation does not quickly subside from this ruthless nation. A new politics is certainly needed where hegemonic aspirations are tempered with a more collegial and internationalist view of world politics. I think it naïve that America’s role in the world can be more constructive and less lethal in the absence of a more creative inter-state diplomatic agenda.

The costs of the Iraq war may reach three trillion dollars according to Nobel Prize winning economist Joseph Stiglitz. The war budget alone is annually about one trillion when, in addition to the Pentagon, one includes the intelligence services, the Department of Energy and the National Aeronautics and Space Administration.

Also the soaring health care costs for tens of thousands of wounded and psychologically damaged Iraq War veterans are part of the unsustainable economic burdens of the war to the United States economy. Rich nations do not have unlimited resources to police the world. Forty eight million Americans are without health insurance and the gap in life expectancy between the rich and poor is growing. Poor African-American males die at age 66.9 but the life expectancy of affluent white women is 81.1 years. This is not entirely the result of the Iraq War but it is arguable that the priorities of war, hegemonic domination and white Judeo-Christian supremacy demonstrate that a militarised society does not emphasise social equality at home, much less abroad.

But how? How does one purge this article? Males like myself also clean so excuse any gender bias.

The article invented data that claimed that Infuse was acutely effective in lower-limb tibia restoration at a rate of 92% with only a 3.2% infection rate. The article was confirmed to be falsified  and was “retracted” by the Journal of Bone and Spine Surgery in March 2009. The article had been published in the peer-review journal in August 2008.  Despite The Journal of Bone and Spine Surgery’s ex cathedra proclamation that the apparent Medronic Inc. pay-for-fake-medical-research was “formally withdrawn from the scientific literature,” such is not the case electronically.

Tens of millions of Internet users seek medical guidance on the web. It is one of the largest categories of inquiry. One can find the above article listed in many medical-resource bibliographies and search engines. I am in the process of finding information about the abused “co-authors” that Dr Kuklo faked on his manuscript. One is Dr H. M. Frisch who has a rather impressive dossier in examining orthopaedic injuries to the casualties of war. I would prefer we not wage immoral wars but we do and someone has to heal the wounded. I was impressed with Dr Frisch prolific scholarship but horrified to encounter that the colonel’s article was still attributed to Dr Frisch et al. On the labmeeting.com website, one encounters the Kuklo forgery in full glory. It is unfair that Dr Frisch is still identified with this faked article even though it was “withdrawn” three months ago.

+ View Abstract
Helgeson MD, Potter BK, Tucker CJ, Frisch HM, and Shawen SB
Orthopedics 32(5), 2009 May – Who cited this? | PubMed ID: 19472965 | Fulltext

Recombinant human bone morphogenetic protein-2 for grade III open segmental tibial fractures from combat injuries in Iraq.
Kuklo TR, Groth AT, Anderson RC, Frisch HM, and Islinger RB
The Journal of bone and joint surgery. British volume 90(8):1068, 2008 Aug – Who cited this? | PubMed ID: 18669965

Treatment of open periarticular shoulder fractures sustained in combat-related injuries.
Mack AW, Groth AT, Frisch HM, and Doukas WC
American journal of orthopedics (Belle Mead, N.J.) 37(3):130-5, 2008 Mar

From iraq back to iraq: modern combat orthopaedic care.
Hayda RA, Mazurek MT, Powell Iv ET, Richardson MW, Frisch HM, Andersen RC, and Ficke JR

Moderators’ summary: antibiotics and infection.
Calhoun JH and Frisch HM
The Journal of the American Academy of Orthopaedic Surgeons 14(10 Suppl), 2006 Oct -

Definitive treatment of combat casualties at military medical centers.
Andersen RC, Frisch HM, Farber GL, and Hayda RA
The Journal of the American Academy of Orthopaedic Surgeons 14(10 Suppl), 2006 Oct

Galenicom, a major medical search engine, also retains the retracted article. It also is linked on a Spanish-language version which I am reproducing to demonstrate the global reach that this article “enjoys.”

Recombinant human bone morphogenetic protein-2 for grade III open segmental tibial fractures from combat injuries in Iraq.
Autores: T R Kuklo, A T Groth, R C Anderson, H M Frisch, R B Islinger Idioma: Eng. Fecha: 2008-08-01
Revista: The Journal of bone and joint surgery. British volume (0301-620X)
Entrega: J Bone Joint Surg Br. 2008 Aug;90(8):1068-72

Abstract:

This is a retrospective consecutive case series of 138 Gustillo-Anderson type IIIB and IIIC segmental tibial fractures treated at Walter Reed Army Medical Center in soldiers injured in Iraq between March 2003 and March 2005. Five patients with a head injury and four who were lost to follow-up were excluded. The patients were treated definitively with either a ringed external fixator or a reamed intramedullary nail, evaluated in terms of supplementary bone grafting with either autogenous bone (group 1, 67 patients) or recombinant human bone morphogenetic protein-2 at 1.50 mg/ml applied to an absorbable collagen sponge (group 2, 62 patients). The mechanism of injury, defect size and classification, associated injuries, presence of infection, preliminary treatment/fixation, number of procedures before definitive management, time to and details of definitive management, subsequent infection, re-operation, smoking history and other complications were noted. Radiographs were assessed for union, delayed union or nonunion by an independent investigator. All the patients were male. Their mean age was 26.6 years (20 to 42) and the mean follow-up was for 15.6 months (12 to 32). Group 2 had a slightly higher profile of concomitant injuries and a slightly worse fracture classification, but these were not significant. The rate of union was 76% (51 of 67) for group 1 and 92% for group 2 (57 of 62; p = 0.015). There was also a higher rate of subsequent infection in group 1 (14.9%) compared with group 2 (3.2%; p = 0.001) and a higher rate of re-operation (28%) in group 1 (p = 0.003). There were no observed hypersensitivity reactions to the recombinant human bone morphogenetic protein-2 implant.
Copyright: The Journal of bone and joint surgery. British volume
Washington University School of Medicine, 660 S. Euclid, St. Louis, Missouri 63110, USA. kuklot wustl.edu
EBSCO – HTML (con suscripción)
HighWire Press – HTML (con suscripción)
Ovid Technologies, Inc. – HTML (con suscripción)
ProQuest Information and Learning – HTML (con suscripción)
Temas: Adulto, Proteinas Morfogeneticas De Hueso, Trasplantacion Osea, Estudios De Seguimiento, Fijacion De Fractura, Fracturas Expuestas, Humanos, Iraq War, 2003 -, Varón, Personal Militar, Proteinas Recombinantes, Estudios Retrospectivos, Statistics as Topic, Fracturas De La Tibia, Factor Beta Transformador De Crecimiento, Trasplantacion Autologa, Resultado Del Tratamiento, Estados Unidos

Versión para imprimirVersión para imprimir
Festuc discotecas madrid discotecas barcelona discotecas ibiza discotecas
Artículos de otras especialidades:
Medicina Intensiva, Cardiología, Neumología, Anestesiología y Reanimación, Pediatría, Cirugía Cardiovascular, Cirugía General – Ap. Digestivo, Medicina de Urgencias, Medicina del trabajo, Reumatología, Oftalmología, Traumatología

It is possible that physicians in the developing world may not have as much access to the sordid history of this article and may apply its findings to patient care. While it is likely that most physicians who practice spine and bone fracture medicine are aware that Infuse should not be used based upon Dr Kuklo’s invented claims, I am concerned that the cyberspace dissemination of this article poses a danger to unsuspecting physicians and patients.

Nota bene: To those who have defended Dr Kuklo in comments to me at kirstein@sxu.edu the issue is not whether he has helped individual patients, which apparently and fortunately has occurred. The issue is whether a physician should practice medicine  and escape any sanctions who falsifies research, fakes the names of other authors to give the impression of a group effort, and was part of an apparent pay-to-fake-medical-research scheme. His actions were malicious and utterly at variance with the advancement of medicine. If specific allegations and information are demonstrated to be inaccurate, I will correct them. I have written more on this incident than any other blogger and have considerable knowledge of this affair. I have scrupulously attempted to combine simultaneously the factual and the normative which in my opinion is the raison d’être of reporting:

Other articles on disgraced Colonel Kuklo:

Million Dollar Baby

June 16. 2009

May 30, 2009

Dr Kuklo leave of absence!

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009 Dr Riew first critiqued

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu

The New York Times is reporting that Dr Timothy R. Kuklo, associate professor of orthopaedic surgery with a specialty in spinal and lower-limb restoration, has been placed on a leave of absence from Washington Univesity in St Louis School of Medicine. This may be construed as a quasi suspension or as a prelude to dismissal depending on the circumstances unfolding at the St Louis campus.

The power of the press is considerable. The New York Times ran four stories on this case in which Colonel Kuklo {ret} falsified research that he performed on wounded soldiers from Iraq, lied about having four co-authors from Walter Reed Army Medical Center for an article retracted by its publisher and recklessly promoted the efficacy of the Medtronic Inc. product Infuse. Dr Kuklo claimed it was a breakthrough in bone growth restoration in lower-limb injured patients as opposed to other more routine treatments and inferentially in spine-cervical application as well.

Although Dr Kuklo’s article was withdrawn from publication and the army determined he did not follow appropriate protocol in submitting or publishing “research” while on staff at Walter Reed, there appeared to be foot dragging in resolving this matter at Washington University. Now, due to mounting pressure including possible Congressional inquiry into the doctor’s consultancy relationship with the Minneapolis firm, Medtronic Inc. that began in 2006, Dr Kuklo is now essentially suspended. While no academic institution should render judgment based on outside pressure, clearly the facts in this case were so substantial that to ignore them would have been dismissive of a university’s mission: to search for the truth. Dr Kuklo cannot meet patients; he cannot consult on patient care. He is prohibited from performing any duties at the medical school or its affiliated hospitals such as Barnes-Jewish.

If this is an actual suspension, he should be compensated with benefits and pension contributions as before. If this is a prelude to a dismissal based upon misconduct and unethical behaviour, then such a decision need not be accompanied by continued compensation. As a tenured faculty member, Dr Kuklo cannot, repeat cannot be suspended without pay but he could be dismissed for moral turpitude.

If he voluntarily took a leave of absence, then normally that period is not subject to remuneration. I would be concerned if he were forced to take an unpaid leave of absence.  However, given the circumstances in which his concoted research may have harmed patients, it is clearly in the public interest that he not practice medicine.

While he is presently not in a position to exploit patients for corporate subsidised research, it is hoped that he will never practice medicine in the future. I believe he should upon due consideration be relieved of his medical license and his privilege to practice medicine in the United States. He is a fraud, a physician without ethical compass, and a disgrace to the medical profession. One may feel compassion for a forty-eight year old professor whose career is essentially terminated and perhaps pity that a talented doctor and lawyer has self-destructed.

However, in the field of medicine, one MUST not harm patients or lose sight of one’s primary mission. To heal, to succor, to serve as an advocate for patient care. Publishing falsified research that could be improperly used by unsuspecting physicians in managing the care of their patients is so egregious that it is difficult for me to imagine any useful purpose in the restoration of his medical career but considerable relief that he is not in a position to exploit other patients under his care.

To those like my father, who along with so many others built Washington University School of Medicine into one of the world’s leading medical faculties and centers of  wellness and patient care, you may rest easier that this sordid affair is apparently reaching its final disposition and that the integrity and honour of Washington University in St Louis School of Medicine is in the process of restoration.

Kirstein Blog other Colonel Kuklo articles:

Kuklo AWOL? July 15

Million Dollar Baby

June 16. 2009

May 30, 2009

Dr Kuklo is on leave of absence!

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu

I received the following email from a John Lane. One of many I might add and have carefully scrutinised which to publish since I am on a university server. Some have submitted very damaging charges about Dr Kuklo which I am pursuing but I am not a journalist or part of an investigative team so what I cannot verify I do not post. Yet I do believe my reporting of the Kuklo matter has been accurate, very detailed and professionally responsible. I have NOT called for Dr Kuklo’s dismissal at this point but the evidence against him is so grave that such a resolution may be the only reasonable one to protect his patients and the integrity of Washington University School of Medicine.

The issue is not whether Dr Kuklo is medically competent as the testimonial from Mr Lane emphasises. I am sure his training affords him ample opportunity to demonstrate such competencies and am pleased Mr Lane has benefitted from treatment. The issue is whether Dr Kuklo is medically responsible and trustworthy to continue the practice of medicine in a clinical setting. He faked research on the Medtronic Corp. product Infuse which was published in a peer-review article, “Recombinant human morphogenetic protein-2 for type grade III open segmental tibial fractures from combat injuries in Iraq.”  He lied like a criminal in forging the names of four other army officers as fake co-investigators of the Infuse project and benefited financially as a consultant of Medtronic. That unseemly association in which research outcomes are influenced by being on the payroll of the product’s manufacturer has ended. Medtronic has now SUSPENDED him from that association but the barn door has been closed after the pig escaped.

http://www.osseotech.com/images/1168924963infuse.gif

Greed and personal enrichment trumped business and professional ethics as Medtronic and Dr Kuklo collaborated as shameful hucksters of Infuse.

Dr Kuklo claimed a dramatic efficacious response, in comparison to traditional therapies, from the protein-based bone-growth product Infuse without any evidence: the patients at Walter Reed did not exist; there was no statistical evidence that his data existed; his investigation was not based on any actual research. He was claiming Infuse was 92% effective and just made up the data. This disgraceful and unprofessional conduct is now being investigated by the Congress or at least  by Senator Charles E. Grassley, Republican of Iowa. The article may have caused deaths or injury or needless suffering for patients whose surgeons may have been unduly influenced by the article’s claims in the Journal of Bone and Joint Surgery prior to its retraction.

Mr Lane defends Dr Riew whom I praised as an “esteemed” and gifted physician. I merely rejected emphatically his rather gratuitous defence of Dr Kuklo’s character and penchant for fabricating co-authors as the result of an absence of fax machines etc. as biased and rather self-serving. They collaborated on many research projects from book chapters to journal articles. I link my response at the appropriate point in Mr Lane’s email.

Mr Lane is incensed about my email response seven years ago to an Air Force  Academy cadet.  I referred to the incident in my last Kuklo post and have written and lectured on this incident across the U.S. and Europe. I think I am quite an expert on suspension having studied, experienced and published on the sanction. Mr Lane links snopes.com which is a militant prowar right-wing website which is entitled to its opinion. I offer another one which is more tolerant of dissent. My  Blog Category A: Kirstein Academic Freedom Case  carries more information on the academic freedom case. I would opine that a robust, enraged email that condemned the baby-killing tactics of collateral damage was a denunciation of war and death. I think Colonel Timothy R.  Kuklo, M.D. is guilty of a malicious disregard of his professional responsiblities in which real people may have been proffered inadequate treatment. It merits an immediate suspension to protect the public from this dishonest and unethical physician.

————————————————————————————-

From: John Lane [gorams21@hotmail.com]

Sent: Fri 5/22/2009 3:14 AM
To: Kirstein, Peter N. {kirstein@sxu.edu}
Cc:
Subject: Dr. Kuklo
Attachments:

I have lived in severe chronic pain for the past 5 years. I have had 3 surgeries and 3 surgeons and have not only not improved but my condition worsened. I am 44 years old and have a wife and 2 young sons. I am a local business owner in the St.Louis area.

I was recently refered to Dr.Kuklo after getting to the point of not being able to function on almost any level. My Doctors had told me I would never improve and I had in fact became disabled.I could never put into words how difficult my families life had become or mine due to my disability.

I went to see Dr. Kuklo in December 2008. After some tests he convinced me to have yet another spinal surgery.He explained that my previous surgeries were collapsed and they had not fused. He wanted to perform a  complicated 3 level cervical fusion and use the medtronic BMP. Without much hope and knowing this surgery was going to be hell I agreed since Dr. Kuklo’s confidence gave me some hope.

On 1/16/2009  I had the surgery. Today I am mostly pain free. I am no longer on narcotics of which I was taking very large amounts and still in terrible pain. I have returned to work and playing with my kids. I am not constantly irritable and depressed, I am in fact overwhelmed with gratitude most days.

Your attacks and demands for Dr.Kuklo to be suspended are not a service to this community. I believe that these are unfounded allegations at this point.I also can tell you that I have not had any Doctor that I felt cared for my well being the way Dr.KUKLO has.

I have seen some other of the nasty things you have said and done. You are the one that is the disgrace. How many people have you healed. I have heard several Physicians publically defend Dr.Kuklo . I also read you attacks against Dr. [K Daniel] Riew for coming to his colleagues defense.Dr. Riew is considered one of the top 2 or 3 in the country for disc replacement surgery. You are now trying to discredit him.

You must be a sick and hateful person that just wants to see his name around controversy.I read about you on snopes.com
http://www.snopes.com/inboxer/outrage/cadet.asp

You should retract your writing until the truth is out.
JOHN LANE

ST.Peters Mo.

Other articles on disgraced Colonel Kuklo:

Million Dollar Baby

June 16. 2009

May 30, 2009

Dr Kuklo leave of absence!

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009 Dr Riew first critiqued

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu

As the academic misconduct case involving Washington University in St Louis Associate Professor, Dr Timothy Kulko, continues to garner intense interest, the public is increasingly frustrated in not obtaining any information concerning possible sanctions that might be levied against the colonel. Before his retirement he was on staff at Walter Reed Army Medical Center and treated Iraq War casualties with serious lower-limb injuries incurred during the Bush administration War in Iraq.

First: I believe Washington University’s reluctance to discuss this matter is appropriate. I also cannot condemn Dr Kuklo’s strict refusal to respond to any inquiries concerning this matter, however, frustrating that may be.

“To protect the people involved, and the integrity of an investigation, Washington University does not confirm whether any particular case is under review,” spokeswoman Joni Westerhouse stated on Tuesday in an AP story.

Clearly, given his training as a lawyer at Georgetown and possible counsel, he has been advised to maintain his silence. The New York Times which has extensively consulted my blog postings on this matter has run two articles which elevated an inside baseball matter between the Journal of Bone and Joint Surgery, and Walter Reed into a growing controversy. Colonel Kuklo’s faked his research in order to sell Medtronic’s Infuse protein-bone growth product; he lied about four co-authors who did not particpate in the study; the JBJS retracted the article in which this army surgeon falsified data concerning lower-limb casualties from the Iraq War and as a coward falesly implicated other army officers in this shameful study.

Second: When an academic institution is considering sanctions against an academician, it should conduct its inquiry in secrecy. The public, including the New York Times should have its efforts resisted to acquire information. As one who has been involved in controversy concerning a suspension and academic freedom to protest robustly war, I prefer that administrators not comment on pending cases of controversy which might unnecessarily influence internal proceedings.

Third: Suspension from an academic appointment is a major sanction that must never result from external-public pressure on an academic institution. However, third parties in a democracy may vigorously advocate sanctions or the reverse. The American Association of University Professors guidelines should be adhered to by an institution to insure fairness and due process is afforded the individual. Suspensions can only be meted out, “if immediate harm to the faculty member or others is threatened.” The A.A.U.P. Polcy Documents and Reports Redbook reiterates in numerous documents the extraordinary circumstance under which an academician may be suspended in the United States. The documents are the ninth “1970 Interpretive Comment” of the “1940 Statement of Principles on Academic Freedom and Tenure,” the “1958 Statement on Procedural Standards in Faculty Dismissal Proceedings” and the revised 2006 “Recommended Institutional Regulations on Academic Freedom and Tenure.”

Fourth: I believe Dr Kuklo prior to any final determination of his status should be suspended, with full pay and benefits, and prohibited from treating patients or carrying out any of his duties. His article, that has been withdrawn from the medical literature, may have already caused harm to patients in its falsification of the efficacy of Medtronic Corp. Infuse. Claiming it was 92% effective from a ghost, non-existent study cohort, it may have been used by orthopaedic surgeons or physiatrists to rehabilitate injured persons. Dr Kuklo has apparently lost all sense of professional obligation to “do no harm” and indeed may have caused grievous harm by his actions to leg-injured persons desperately seeking limb restoration or healing.

Washington Univesity in St Louis School of Medicine should announce a suspension so patients will not be distracted or frustrated in attempting to make appointments and to insure a smooth transition in the interim. That is certainly appropriate because it would serve the public interest. It could be argued that Dr Kuklo does represent a clear and present danger to patients that he is treating at Washington University and that he should be suspended from all duties pending an ultimate finding of his suitability to maintain his tenured appointment. I believe the public interest is a factor in insuring that professional excellence in administering health care not be compromised.

Other articles on disgraced Colonel Kuklo:

June 18, 2009

June 16. 2009

May 30, 2009

Dr Kuklo leave of absence!

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009 Dr Riew first critiqued

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu

This magnificent ad and I don’t wear LensCrafters products and have absolutely no desire to peddle their product, contains an unidentifed song and artist. Cutwater, the ad agency does not identify the artist in any of its literature nor does extensive online ad company trade sites and promos reveal the musician’s name. However, this is a great ad, digitally mastered from a studio version with acoustic guitar of course and virtuoso banjo and it really infuriates me that the singer is not acknowledged online. The Internet is full of inquiries over who the singer is? Well it’s the Scottish-born Donovan singing “Colours” which appeared on the Universal Soldier album. This was released the same year when Donovan was chastened in a hotel room by Dylan’s winging of “It’s All Over Now, Baby Blue” in Don Pennebaker’s epic Dylan-centered masterpiece, Dont Look Back (1967)! {without an apostrophe in “Dont.”}

The disgraceful conduct of Doctor Timothy F. Kuklo, associate professor of orthopaedic medicine at the Washington University in St Louis School of Medicine, led to his published paper being withdrawn from the scholarly record:

The “research” was conducted when Colonel Kuklo was on staff at Walter Reed Army Medical Center.

1) He faked the data.

2) He forged the signatures of four co-authors, one of whom is a lieutenant colonel in the army.

3) The purpose of the paper was to misrepresent an imaginary 92% efficacy of Infuse in bone-growth restoration, a product produced by Medtronic that Dr Kuklo worked for:

4) The public must make sure that this physician is driven out of the practice of medicine. His patients were Iraq War veterans with severe lower-limb tibia fractures and his research, falsely presented, could have led to the inappropriate application of Infuse for other soldiers and civilians. He is a disgrace to the profession of medicine and to academic in general and Washington University cannot continue to ignore this and maintain his listing as one of the Best Doctors in the U.S.

5) My father was a captain in the army, a medical doctor in combat in the Aleutians Islands during World War II and taught in the Washington University in St Louis Medical School for over thirty years. I am glad he was never sullied  by or had the opportunity to meet Colonel Kuklo. I know my father would have not been silent and would have demanded any colleague commiting such acts of academic misconduct and fraudulent medicine be held accountable for his or her actions.

Withdrawal of a paper
J. Scott, MA, FRCS, Editor1

1 Journal of Bone and Joint Surgery, 22 Buckingham Street, London WC2N 6ET, UK.

Correspondence should be sent to Mr J. Scott; e-mail: j.scott@jbjs.org.uk

A paper entitled “Recombinant human morphogenetic protein-2 for type grade III open segmental tibial fractures from combat injuries in Iraq” was submitted to the JBJS[Br] with a covering letter dated 9 October 2007 which was signed by the authors. The corresponding author was Dr. T. Kukla. [sic!]  The letter of transmittal included the statement that each of the authors had read and approved the final manuscript. It also said that the authors were employees of the United States Government and that the submitted work was performed as part of their official duties.

The paper described the management of 138 Gustillo Type IIIB and C tibial fractures in soldiers injured in Iraq. It was a retrospective study with some randomisation of these patients into two groups, one of which received bone morphogenetic protein-2 (rhBMP-2) as part of the management and the other did not. The authors reported a significantly higher union rate in the group treated with rhBMP-2 (92% vs 76%). There was also a higher rate of further surgery required in the patients who did not receive BMP. This seemed to our reviewers to be an excellent study involving a large number of severe open tibial fractures investigated with appropriate methodology and reported satisfactorily. It was stated in the paper that appropriate ethical approval had been obtained and that each patient had provided informed consent. The reviewers suggested relatively minor modifications with some clarification, including further details with regard to those patients who were lost to follow-up and the technique used for bone grafting. It was also requested that some details of those patients who had undergone amputation be included along with further details about the management of the associated injuries of the soft tissue. The corresponding author then sent a revised manuscript with a covering letter indicating, for instance, that several hundred soldiers had sustained a traumatic amputation during the period of study, but that this was not the purpose of the manuscript and that none of the patients described in this paper had required an amputation. Some further information was also provided indicating that there were 51 pedicle muscle flaps and five fasciocutaneous flaps in this series which were all successful.

The paper was Accepted on the 18th April 2008. It was extensively rewritten by an associate editor and further corrected by me. Subsequently, as is routine practice, galleys were returned to the corresponding author and further minor corrections made during June 2008. The paper was published in the August edition of the Journal. It clearly seemed to represent a major contribution to the treatment of these severe complicated fractures which are difficult to manage and usually require several surgical procedures, careful wound management and extensive rehabilitation.

Shortly after the paper was published we received correspondence from one of the persons identified as a co-author indicating that the alleged co-authors had not seen the manuscript prior to publication and that they had not signed the letter of transmittal. It was further disclosed that much of the paper was essentially false.

Appropriate representations were made to the Walter Reed Army Medical Center in Washington DC, the alleged source of the paper, even though Dr Kuklo had retired from the US Army and left Walter Reed well before his paper was submitted for publication. A local investigation was instigated and we received further correspondence dated 6 November 2008 including the following paragraph:

“The results of the investigation establish that Dr Timothy R Kuklo did not submit the article through the Office of Clinical Investigations or the Public Affairs office, as required by Army regulations, before he submitted the article to your publication; that the signatures of the supposed co-authors of the article were, in fact, forged; that Dr Kuklo acted without any involvement of personnel at the Walter Reed Army Medical Center; and that the article was in no way vetted through Walter Reed’s Publication process before publication. As you are aware, once the article was reviewed by the purported co-authors of the article, a number of serious questions were raised regarding the validity of the information and the conclusions made in the article”.

Under these circumstances the paper published by this Journal has been formally withdrawn from the scientific literature and Dr Kuklo banned from submitting further papers to this Journal.

James Scott, MA, FRCS, Editor

Other Dr Kuklo posts:

Million Dollar Baby

June 16. 2009

May 30, 2009

Dr Kuklo leave of absence!

May 22, 2009

May 20, 2009

May 18, 2009

May 17, 2009 Dr Riew first critiqued

May 15, 2009

May 14, 2009

May 13, 2009

comments and information to Kirstein@sxu.edu