Churchill v. University of Colorado: The Unquestioned Witness in the Courtroom

The star witness for the afternoon was Phil DiStefano, the acting Chancellor during 2005 when the outcry against Ward Churchill hit its fever pitch.

David Lane brought him through a series of questions about those events, focusing on his statement to the Regents that he would, within the next 30 days, launch an investigation into Churchill’s speeches, writings, and recordings. DiStefano essentially acknowledged that he was looking for anything that would justify Churchill’s dismissal.

DiStefano came across as straightforward enough if not understated until Lane questioned him about the publicity emanating from DiStefano's office about the Churchill incident, despite obligations of confidentiality.  DiStefano had sent out assorted media advisorys and emails about the status of the investigation. Lane asserted that he had complained to CU that he had to learn about developments with Churchill by reading the Rocky Mountain News.

Distefano essentially took the position that the confidentiality requirements did not apply to him, but were instead applied to the committee conducting the investigation and its process.  Lane confronted him with a complaint filed by Churchill about the confidentiality violations and a faculty committee decision that found that there had been disclosures that were inappropriate and "likley prejudicial to Professor Churchill."  Distefano indicated that he did not remember the decision.  He also indicated that he disagreed with the committee's findings but apparently never appealed or otherwise took steps to undo the decision.  It would have been better for the Defendant if DiStefano rather than Lane had alerted the jury to the decision.

But the real star of much of the afternoon was in fact not exactly a person. CU Law School came up a number of times. DiStefano acknowledged that he relied on the dean of the Law School, David Getches  (along with university counsel and others), for advice on whether Churchill’s article constituted protected speech.  Sometime after the controversy broke over the 9/11 essay, DiStefano received the following email from Getches:

Ward Churchill’s paper, which has just come to light, expresses some opinions protected by the first amendment that we find objectionable and outrageous. Just as one does not have a 1^st amendment right to cry ‘fire’ in a crowded theater, one cannot incite others to violent or illegal action. Churchill’s paper may be over the line.

Whether or not his particular remarks are protected by the 1^st amendment, they are not befitting of someone in a position of leadership at CU. Since it has been disseminated, his paper has caused anguish to Jews and members of the very minority groups the Ethnic Studies program serves, and to 9/11 victims’ families. He has deeply embarrassed CU and flouted the principals of human decency that CU stands for.

Moreover, his inaccurate and irresponsible comments cast serious doubt on his competence and integrity as a scholar. Therefor—

Actions 1) Remove him as Director of Ethnic Studies, 2) Suspend him with pay pending review by committee of his competence and fitness to continue as a faculty member at CU

Lane sought to use the views in the email to cast doubts on the neutrality of Mimi Wesson, a law faculty member, who headed one of the committee that made findings of misconduct by Churchill.  Lane noted some arguably critical comments by Wesson in an email and tried to paint Getches and Wesson as friends, noting they worked in the same building and had worked together for 20 years.

DiStefano disagreed with the characterization (calling them colleagues) and noting that law faculty do not all think the same way.

Both names came up repeatedly throughout the afternoon.  It is very clear that one of the ways David Lane intends to challenge the CU process is to attack the credibility of the members of the various faculty committees.

Churchill v. University of Colorado: Day #2, Afternoon Session

By 12:58 PM people were lining the benches outside of Courtroom Six, waiting for the afternoon session to begin. We were greeted by a smiling Judge Naves who unlocked the courtroom doors and held them open, joking, "I'm a full-service judge!" By 1:25 PM nearly twenty-five people mingled in the courtroom, and within ten minutes that number jumped past forty. 

The afternoon session began with O'Rourke's quiet questioning of Professor Hu-Dehart from Brown University.  She described her past professional relationship with DiStefano and also discussed the interdisciplenary nature of ethnic studies. Questioning rapidly moved toward the subject of plagarism and falsification, and Hu-Dehart become increasingly more evasive. While she agreed that no professors should falsely cite personal opinions as facts, she gave round-about answers to straight-forward questions, indicating that one would probably expect "facts" from a publication to be related to the source an author cites.

When Lane began the re-direct examination, his focus was on the differences between opinion and fact, and academic freedom. Prof. Hu-Dehart emphasized the importance of unique academic opinions, stating, "We push the envelope by saying, "I think we might go in a different direction with this. I have reason to believe all the previous analysis of this issue may be a bit off... I'm going to stick my neck out." When questioned about the dangers of creating facts and speculating, Hu-Dehart said, "What's one person's fact is another's falsification," and gave the wild example of those who insist the Holocaust did not occur. When we hold up a photo of an oven from a concentration camp, she said, a non-believer in the Holocaust will insist it is a photo of something different. And we allow them to argue such beliefs. 

Next on the stand was Phil DiStefano. Lane began by weaving a theoretical tale about Gallileo teaching at CU, professing incorrectly that the earth moves around the sun. If the church, he said, threatened to cut off funding from the University because of the off-color teachings, the University would have to respond with an unenthused, "Whatever." Of course, this story is meant to parallel Bill Owens public threat to stop CU's funding after the "firestorm" of Professor Churchill's 9/11 essay reached the media. And CU did not brush off the incident so unenthusiastically. Lane tried multiple times to ease DiStefano into saying that, in February 2005, only the 9/11 essay was "on the table." DiStefano wouldn't give in, insisting that the University was receiving numerous complaints via phone, e-mail, and letters regarding Prof. Churchill's academic misconduct; complaints that warranted further investigation.

The Standing Committee on Research Misconduct was the hot-topic of the day. At some point Lane pointed out that DiStefano passed legitimate complaints on to the SCRM for investigation. One such topic was whether Churchill misrepresented himself as a Native American and used the information for the purpose of getting published. Lane likened this to requiring an American Kennel Club dog to prove its lineage. DiStefano, of course, disagreed with the AKC analogy.

Another concern of Lane's regarding the SCRM was the membership, specifically that of  law professor Marianne Wesson. According to Lane, Wesson, in the past, had compared Churchill to Michael Jackson, O.J. Simpson, and Bill Clinton. Lane suggested this was a major conflict of interest, but DiStefano would not agree that past personal statements influenced her decisions as part of the SCRM.

The final SCRM controversy of the day involved the issue of confidentiality. Lane showed DiStefano, and the rest of the courtroom, the SCRM rules regarding confidentiality: Basically, that members of the committee and committee support staff are required to keep faculty evaluation information private. At first, DiStefano stated he was unsure of the SCRM policy because he was not a member of the committee, but soon added that no records were truly confidential because of the Colorado Open Records Act. This, he said, justified any press releases. Lane immediately asked whether, "from the moment [the investigation] launched, there was a single, solitary open records request." DiStefano's defensive  response? No, but "[a request] would have been there the following day!" While this elicited some laughs from Churchill supporters, DiStefano was likely correct in suggesting that without any press releases, the media would have been hounding CU for information.

Lane brought forward a memo released by a panel of CU employees, criticizing DiStefano for breaking confidentiality rules, and seemed shocked that DiStefano's recollection of the memo was scant. He repeatedly suggested that DiStefano unfairly permitted the breaking of confidentiality rules because it was "a super-duper high-profile case" DiSefano insisted, even in light of the CU panel suggesting otherwise, that he did not violate any confidentiality regulations.

The day ended with a few questions from O'Rourke, much more enthused and dramatic than his questions from 1:30pm. In a few short moments he had DiStefano telling the jury that, no, the investigation of Churchill was not a witch hunt, that he did follow all the rules and regulations in conducting the investigation, and that academic freedom had nothing to do with Churchill's dismissal. The finale? DiStefano explained how, if his ultimate goal was to fire Churchill, he would have done it in a much more effective manner without dragging any issues through the SCRM. Instead, CU chose to protect First Amendment and Due Process Rights and essentially give Churchill a fighting chance at keeping his job.

Churchill v. U of Colorado: Morning Session - Opening Statements

The courtroom was at maximum capacity on Tuesday morning to hear the opening statements for the plaintiff, Ward Churchill, and the defense, the University of Colorado. Both statements were presented very well and emphasized the critical issues that each side will attempt to make in the weeks ahead.

David Lane, Churchill’s attorney, immediately dove into what it means to have civic duties and told jurors how important jury duty is, saying “the fact you are here and you are deciding the case sets this whole country apart from almost any other country on the planet.” Emphasizing the civic duty of each juror rolled into our constitutional rights and obligations to protect them. He ran through a quick history of freedom of speech and why it is essential to our country and each individual in it, illustrating examples from Galileo to the debate about evolution.

Fast-forwarding to the current issue at trial, Lane summarized Churchill’s September 12, 2001, thesis as, “when you push people and push people and push people, sometimes they push back.” Tapping into recent memory he impressed upon the jury what the post 9-11 political climate was like if you were not an American cheerleader; you were in fact anti-American.

While he explained Churchill’s thesis and what it mean in further detail, he did so under that coloring, and he likened those calling for Churchill’s firing to an angry mob, a theme that carried through his entire statement. This angry mob consisted of all kinds of people from national figures such as Sean Hannity and Bill O’Reilly to former Colorado Governor Bill Owens and other “right-wingers.”

According to Lane, the Board of Regents and Chancellor DiStefano decided to fire Churchill amid the controversy and they were going to find a way to do it hiding their true motive, his September 12, 2001 essay. After giving some history and a background of who Churchill is, Lane moved on to a timeline of the events that took place (presented by large poster board on a stand in front of the jury box). These events started when the University decided to listen to the mob and to investigate claims from individuals outside the University that Churchill was plagiarizing and falsifying information in his scholarly essays and books.

Lane claimed that the committee established to investigate these allegations of plagiarism and falsifying information was biased towards the University of Colorado and that he was never given a fair hearing, this trial would be his first. Finishing up, Lane likens this trial to freedom versus big brother, in an attempt to pull on the jury.

Pat O’Rourke, counsel for the University of Colorado, said that this was really not a case about the First Amendment, but instead “at the end of the day you will see that Churchill lost his job because he engaged in the worst kinds of academic fraud that you can.” He quickly ran through the First Amendment claim in an apparent attempt to show the jury how complicated these it can be. Describing Churchill’s essay as a “cruel and heartless essay,” he tried to rationalize the sentiments of the mob, as Lane depicted, and the powerful feelings of those who lost loved ones on 9-11.

After describing how the University of Colorado operates on a functional level with the Board of Regents followed by the Chancellor and then the President, he gave an in-depth overview of the process that was taken against Ward Churchill. It wasn’t until after the initial investigation with Churchill’s essay that evidence of possible academic fraud was brought to light.

He acknowledged a meeting that the CU Board of Regents called in February of 2005, after knowledge of this essay become widely publicized, to determine the proper course of action to take amid this controversy. He claimed that Chancellor DiStefano was rational and took the matter into his own hands to protect the University and Churchill’s rights. Claiming that Chancellor DiStefano saved Churchill from the mob, O’Rourke explained the Chancellor’s thoughts; that we have to evaluate all legal claims and possible options to act rationally, not emotionally.

When the Chancellor began to evaluate Churchill’s statements, he did not look at the misconduct claims yet because he was unaware of their existence, O’Rourke said. After Chancellor DiStefano determined that the University of Colorado could not fire Churchill because of the First Amendment, he became aware of possible research and academic fraud. People outside the University reported the possible fraud and it was investigated. O’Rourke says that academia is the base of the University, going back to his explanation of the structure of a University. The University of Colorado trusts its professors to act with honesty and integrity, so to ignore legitimate inquiries and requests for investigation would be to undermine the University. Continuing on the theme of honesty and undermining the University, O’Rourke explained the unbiased and legitimate faculty review of Churchill’s work and their findings.

O’Rourke used this honesty and integrity theme throughout by saying that the University was honest and upheld their values and academic responsibility. Conversely, Churchill did not and he violated the trust that the University gives to its professors and undermined the University and his field of practice.

The jury, all young, seemed reasonably receptive to both openings, all members continually nodded their heads and paid attention to both statements, not giving away any possible preconceived notions they may hold. If nothing else, each attorney seemed to find traction with the jury and it will be interesting to see who holds more traction as the trial progresses.

The first witness was called, Professor Hu-Dehart from Brown University. Lane inquired about her history and how she knew the plaintiff, Ward Churchill. She worked at CU in the 90’s and was colleagues with Churchill. Then he asked questions about the field of “Ethnic Studies” asking what exactly it meant. The witness responded by saying that Ethnic Studies concentrates on the minority view, such as the view of Native Americans while Christopher Columbus was “settling” in America. She explained further that because the majority wins they teach their narrative, but that it is also important to learn about and from the minority perspectives that get lost in defeat inviting challenges to the “master narrative.”

She went on to describe her relationship with Churchill telling the court that he is one of the most cited scholars in “Ethnic Studies” and that it is “not an exaggeration to say…that Ward is one of the leading Native American scholars.”

Churchill v. University of Colorado: Day Two (Some Interesting Moments)

There were some very interesting moments during the opening arguments. David Lane, counsel for Churchill, tended to use more colorful terminology, referring to right wingers and describing the mob mentality that he alleges infected the Churchill process at CU. He did not use electronic slides (although he did have some that were hard copy) but did rely on one significant prop: A stack of work attributed to Churchill that was maybe six to eight feet high, to emphasize the task of reviewing everything Churchill wrote.

His terminology was often colorful and, right off the bat, he placed Churchill along side Galileo and Scopes. Later he would put on the other side O'Reilly, Hannity, Owens and Bob Beauprez, along with ACTA, an organization he labeled as "right wing." Churchill wasn't just investigated, he was sacrificed to a howling mob. He described some of the members of one committee that examined Churchill as "the butcher, the baker and the candlestick maker." He dropped that later in the case we would hear from Derrik Bell, the African-American scholar who is currently at NYU. Here is a bit of flavor from the opening, written quickly so apologies for any error:

• “This guy has devoted his life to tell the truth for people who are not given a voice in society. He has spent endless days upon the American Ghettos known as reservations. He has written thousands of pages to give voice to the powerless. But because he doesn’t stand up and salute, guys like Bill Owens, because he pokes them and punches them, because he takes the positions he takes, we’re here today. This is the first time in four years that Ward Churchill has had an opportunity to come before a 'neutral' public forum."

O'Rourke was less colorful and more methodical. While Lane preferred a prop, he used visuals on a screen, sometime putting up terminology, sometimes pictures, often pictures of the relevant people under discussion or panoramas of the CU campus. There was no lofty principal at issue. He emphasized over and over the almost heinous nature of the conduct by Churchill, at one point describing him as having engaged “in the worst kind of academic fraud that you can," that the behavior "tears down what the university stands for” and"ultimately harms all of us.”

Misconduct and plagiarism were probably the most used words in his opening. As for process, there was plenty and he walked the jury through the various faculty committees that examined the Churchill record. In other words, it wasn't pet poodles or the CU administration but fellow faculty who stood in judgment of Churchill. And if it was lost on the jury, he asked them to consider what they taught their own children and that even an 8th grader would know that what Churchill did was wrong.

Churchill v. University of Colorado: Opening Statements

It was a packed house in the courtroom today, far more than yesterday, with maybe 80 people in the courthouse, some even forced to stand in the back. There were supporters of both sides, including at least one lawyer from Pat O’Rourke’s firm (before he joined CU). The crowd even contained students present as part of a civic project, observing the US legal system in a close up and personal way. Some were no doubt present to enjoy the expected oration.  The two lawyers did not disappoint.

Both sides set out sketches of their upcoming cases, previews in the word used by Pat O’Rourke (counsel for CU). The pictures that each painted were almost diametrically opposite. Lane (counsel for Churchill) labeled what happened to Ward Churchill as an example of mob mentality, invoking Fox News and a right wing organization. The decision to investigate Churchill, he alleged, was pretextual and full of decision makers he described as "pet poodles."  

O’Rourke, on the other hand, described a very different process. It was CU Chancellor, DeStefano, who stood up to the Board of Regents, protecting academic freedom and emphasizing that the matter would be decided back at the University. The investigation was conducted with great intensity and integrity, with Churchill given an opportunity at every step to defend himself and present evidence.

Both have their tasks cut out for them.  Lane entirely downplayed the alleged misconduct by Churchill, at one point suggesting that much of the case was about five footnotes in a body of work that contained over 12,000 footnotes (and suggesting that the problems were akin to inverted numbers).  In other words, his argument for pretext is apparently based in part on the non-serious nature of the claims against Churchill.  He therefore has a lot riding on the part of his case that suggests there was not serious wrongdoing by Churchill. 

O'Rourke on the other hand, marched through the lengthy internal process used by CU in ultimately coming to the conclusion that Churchill should be dismissed.  He suggested that the investigative process (into plagiarism and other misconduct) was launched because of claims to that effect came from outside the university (having nothing to do with his comments in the 9/11 essay except to the extent that the essay brought him to public attention) and that the process (faculty judging faculty) was largely  beyond reproach (he repeated a number of times that 20 faculty had found evidence of misconduct).  To the extent that Lane succeeds in raising serious questions about the integrity of the process, O'Rourke with have a serious hole in his case.

Churchill v. University of Colorado: The Times They Are A Changing (Part 2)

Want further evidence that things have changed since 2005 when, as David Lane put it, it was "All Churchill, All the Time?" 

The Denver Post (now the only daily newspaper in Denver) had a very brief article (maybe 120 words and written by John Aguilar at the Daily Camera) on page 2B indicating that opening arguments would begin today.  Aguilar was also blogging live from inside the courthouse.  There were a few other reporters (seven people sat in the press section) and Mike Littwin made a visit during the day (so a column may be looming).  A discussion board on the Denver Post attached to an article published Monday, had, by Tuesday morning, the second day of the trial, only 26 comments. 

Certainly any decline in local coverage may be in part the loss of the Rocky but it also reflects reduced interest. The apparent absence of any significant contingency from the national press likewise points to indifference in most of the rest of the country.  With most focused on the economy, the isolated musings of a single professor at a state university don't pack the same wallop, however incendiary they had been.  It perhaps is a metaphor for the distance the country has come since 2005.

Churchill v. Nacchio: The Relaxed Enviornment In the Denver District Court

This Blog is covering the suit brought by Ward Churchill against the University of Colorado.  Two years ago, the same blog covered the trial of Joe Nacchio, the former CEO of Qwest.  The Churchill case is in Denver District Court, the Nacchio trial was in federal district court.

When the Nacchio trial took place, the federal district court judge issued an order with relatively strict requirements, down to specifying the number of seats reserved for the family of the Defendant.  There was a primary court room, with laptops allowed only for the press.  A few weeks into the trial, some extension chords appeared for those with limited battery power.  The newspapers had persons present who were blogging the trial on a real time basis. 

To address the overflow, a second court room was set aside.  Laptops were allowed in that room, press or not.  Some days when the main courtroom was packed (early in the trial, late in the trial and when particularly noteworthy witnesses would testify), the overflow room likewise had a good crowd.  Most of the time, though, the second courtroom was largely empty in part because the video feeds were not that good.  Comments made away from the microphone could often not be heard (objections made from counsel tables for example) and the expressions/reaction from the jury could not be seen. 

Likewise, security at the door to get in the courtroom was strict.  Phones with cameras had to be surrendered.

In connection with Churchill v. University of Colorado, matters are much more relaxed.  There is no second court room, no video feed.  Judge Naves is using a courtroom with 12 rows of benches (two sets divided by an aisle), capable of holding perhaps 150 or so people.  It is apparently viewed as enough for any large crowds that appear during the trial (this morning, the number of attendees minus jurors was somewhere around 20). 

Laptops are allowed into the courthouse and courtoom, with or without a press pass.  The judge issued no special order and inquiries made to his chambers indicated no problem with their use.  Similarly, at the entrance, there was a considerable amount of security (and a long line) but cell phones were allowed in, with or without cameras.

Some of the differences may emanate from trials at the state and the federal level.  Other differences may have emanated from the lack of widely followed trials that attract overflow crowds at the state level (although this is a guess).

Churchill Afternoon Jury Selection

With over twenty-five observers including press, this afternoon’s jury selection began shortly after 1:30 pm. Of the first 18 prospective jurors to be called to sit, approximately a third were people of color.  There were an additional 15 or so people ready to join the group should any of them be struck for cause.  It took most of the afternoon before that number was whittled down to six jurors and two alternates.

To begin, Judge Larry Naves introduced himself and spoke to the jurors about the process that would take place. He explained that he would first determine basic qualifications of the jury, and then the plaintiff’s and defendant’s counsel would each receive thirty-minutes for questioning.  When Judge Naves asked if anyone was disqualified for the reasons set out in the jury qualification statute (such as age, language, or the need to assist someone with a physical disability), no jurors spoke up.

David Lane began by introducing himself as counsel for Professor Ward Churchill. He introduced Churchill as an “extremely controversial” professor of ethnic studies, and as a man who has “taken the underdog side of every story.” Lane then gave a rough outline of Churchill’s case, explaining the 9/11 essay, the media storm that followed it roughly three years later, and the investigation launched by the University of Colorado into Churchill’s academic record.

Lane began questioning the prospective jury pool by immediately referencing the 1st Amendment, asking if jurors believed that an essay like the one described should be beyond the protections afforded by the 1st Amendment. Lane’s questions followed from there, asking various jurors what they believed about the scope of the 1st Amendment, the scope of academic freedom, and the ability of the government to limit free speech. Lane seemed to put the jury at ease in an otherwise formal setting, by stating, “everybody was screaming for this man’s head,” and asking questions like, “who here starts out thinking that this guy is a lying cheat?” His manner was calm and jovial, and he called prospective jurors by name. Towards the end of his time, Lane brought the 1st Amendment to life by saying that it "lives in a very rough neighborhood,” and “you need the 1st Amendment to go punch somebody in the face, verbally.”

As a contrast to David Lane, defense counsel Patrick O’Rourke was significantly more subdued in his questions to prospective jurors.  Unlike Lane, he generally did not call jurors by name.  He began by speaking about the “ordinary people” on the University of Colorado Board of Regents, noting that “they come to the university because they really care about the university.” O’Rourke queried whether the university should have the ability to respond to public criticism by parents, by the media, and by politicians who threatened funding cuts. O’Rourke engaged with one particularly vocal prospective juror (who was later excused for cause) who responded by asking, “you get employed and you give up your 1st Amendment rights?”

O’Rourke also encountered a very minor obstacle when he described the case as the second trial, a reference to the administrative review process already undertaken by the University of Colorado.  Lane objected to O’Rourke’s characterization, insisting that defense counsel be clear that it was not a trial but a procedure conducted by an internal faculty committee.  The judge overruled Lane's objection.

Although O’Rourke did appear to be more reserved, prospective jurors became more responsive and animated during his questioning. At least a handful explained their bias towards Churchill in a way that likely made them unattractive to the defense. Pre-existing bias for the University against Churchill was much less frequently expressed. 

After the end of the defense question period, Judge Naves called for a brief recess. Upon return to the courtroom, the Judge excused three prospective jurors, all of whom had stated that they would be unable to be fair to one of the parties.

The parties then began their peremptory challenges and took another short recess. After the second recess, Judge Naves announced the name of the eight jurors, consisting of four men and four women, including several people of color.  Of the jurors ultimately selected, only two of those had been questioned at some length by either Lane or O’Rourke. For the most part, the prospective jurors who spoke up during the questioning process were excluded. The session ended after the jurors were sworn in and informed of their duties regarding communication and media reports on the trial.

Churchill v. University of Colorado: Day 1 (The Times They Are A Changing)

It was a powerful and interesting afternoon. In the hermetically sealed courtroom, without the distraction of politicians, press or demonstrators, the issue quickly focused upon whether the raft of prospective jurors could resolve the matter fairly and on the basis of the evidence presented.

Each side was awarded 30 minutes to explore the views of the jurors. David Lane, tall, thin, articulate, his hands gesturing with almost every remark, started with a bit of humor (conceding that death was the only thing more fearful than speaking in front of a group of people) but then quickly got down to work.

It didn’t take long to ascertain that the environment surrounding the Ward Churchill matter had shifted. As Lane noted in his allotted time, back in 2005, it was “All Churchill all the time,” with anyone and everyone criticizing the CU Professor.  Now, Lane largely tried to make a virtue out of the criticism.  Professor Churchill (a title used by counsel on both sides) was a critic of George Bush.  He invoked the voices that called for his dismissal -- the governor, the legislature, a former Senator – almost as an example of Big Brother, a governmental effort to eradicate unpopular views.  And, in a city that went overwhelming for Barack Obama, he raised the specter of Fox News, mentioning the criticisms cast at Churchill by Bill O’Reilly and Sean Hannity.

Lane started with a five or so minute exegesis into the 9/11 essay, becoming the first one in the courtroom to characterize the words that will no doubt be repeated over and over. Professor Churchill (the title used throughout the voir dire) took an “underdog perspective.”  Churchill didn’t view the US as hated because of its freedom, the reason given by George Bush, but because of the country's foreign and economic polices.  The 9/11 essay viewed the Pentagon as the center of the military and the Trade Towers as the center of the economy as legitimate targets. He brought up the most infamous comment, the reference to Little Eichmann’s and characterized the phrase as a reference to those who take actions where they might not understand the consequences.  

Much of the rest of the exchange was an attempt to elicit from the jurors their views on the first amendment and the right of the government to retaliate against someone for exercising his or her first amendment views.  He wanted to know: “Who here believes that writing an essay like that is beyond the first amendment protections?” At another point, he equated CU with the government. “CU is the government and the government can’t retaliate against you for your protected speech.” A number of jurors made comments that suggested very strong views on the importance of the First Amendment.

After establishing the critical importance of the first amendment, Lane moved matters around to academic freedom and whether a professor could poke or prod students with unpopular views. A number of jurors spoke about the importance of diverse views in academia. There were references to higher education being a market place of ideas. 

He reminded prospective jurors that the First Amendment “lives in a very rough neighborhood.” You don’t need it to protect the right to swap chocolate chip recipes, even the worst dictatorship does that. You need it to be able to criticize the government and to “punch someone in the nose verbally.” That’s what free speech is all about. “It’s a rough place to live.”

Finally, he made it very clear that this was about the First Amendment. He conceded that if Churchill “cheated the way they say he did” then throw him out of court. But Lane promised to show that CU didn’t fire Churchill “because he cheated” but because of his 9/11 essay. 

Pat O'Rourke was likewise articulate, speaking without notes, his voice a bit softer than Lane's but no less emphatic.  Where Lane was given to hand gestures, O'Rourke mostly kept his hands in his pockets, the approach both understated and effective. 

Where Lane characterized CU as “the government,” O’Rourke viewed the University as an employer and the people at the top as having an obligation to act in the best interests of the University. He would later admit that there was a “causal link between the 9/11 essay and the decision of the regents” to investigate but that it was prudent for them to have done so.

He noted that the CU trustees were people with day jobs and who served because “they really care about the university.” He then wanted to know whether an employee had a duty not to hurt the “employer or disrupt how they do business.”   O’Rourke wanted to ascertain whether jurors could agree that an investigation might be necessary, if for no other reason than to know the facts, that those running CU had that obligation.  With criticism coming from politicians and the public, from parents and alumni, he asked jurors whether it was reasonable for the Board to hear these voices and react to them. Was it unfair for the Board to investigate and to know the facts, to know what its options were, he asked.  He pointed out that an investigation did not mean punishment. While there was an investigation of Churchill’s speech, officials at CU concluded that he couldn’t be retaliated against for the views.

He moved on to the internal administrative process used by CU, characterizing the current case as the second trial, a reference to the administrative process accorded Churchill (a characterization that brought an objection from David Lane). The point was to bring home that it was a strength, not a weakness to be judged by faculty and “a jury of your peers.”   

He then moved past the speech and wanted to know whether it was reasonable for persons to come forward with other allegations once someone became the center of controversy and whether someone in the middle of controversy ought to otherwise be immunized. “Once you say something controversial and make enough people mad,” O’Rourke asked, do you have immunity, does it take “other issues off the table?”

With all of that, he wanted to know whether this was not the right case for some jurors. A number of prospective jurors expressed misgivings, one of them professing to not know much about the case when he was called for jury duty but becoming increasingly concerned that the steps against Churchill had been a witch-hunt. 

O'Rourke engaged in more back and forth with jurors than Lane, with a number asking questions and pointing out what they viewed as problems with his approach.  It was most likely exactly what he was trying to accomplish.  Those who professed too much concern with CU's action or too little willingness to leave room for the possibility that CU and its board of regents may have acted in the University's best interests would find themselves off the jury.  Indeed, one juror confessed after stating his absolute views about the First Amendment that he knew O'Rourke would strike him (a prediction true only to the extent that it was the judge who did so and for cause).

Ultimately, a jury of six jurors and two alternates were selected.  Those who had been the most outspoken on both sides were largely gone.

Churchill v. University of Colorado: Day One

Denver District Court, Courtroom 6

2nd Judicial District, Chief Judge Larry J. Naves presiding.

The lines to pass through courthouse security were long this morning, but as of 9am only about fifteen people wait for the trial to begin. Some of the spectators greet each other, a few wearing buttons that proclaim “I am Ward Churchill.” Two of them vehemently debate topics from free speech to the “Kennedy conspiracy” to why there hasn’t been a revolution in the United States in the last quarter century. The others appear to be present to serve jury duty.

The law clerk calls potential jurors one by one into chambers. The jurors filled out questionnaires last week. This morning, individual voir dire is being conducted outside open court, presumably because of the personal nature of questions on 9/11 and the motivations of the terrorist attack. The clerk informs us that general voir dire will begin in the courtroom today at 1:30pm.

Churchill v. University of Colorado: The First Morning

The doors of the Denver Courthouse opened as usual at 8:00 am.  In courtroom 6 (on the second floor), the law suit brought by Ward Churchill against the University of Colorado got off to a quiet start.

The morning was spent with examinations of prospective jurors apparently in chambers (none of the interviews took place in open court).  The interviews are no doubt designed to uncover any obvious disqualifications.  Voir dire and the process of selecting the actual jury that will hear the three week trial will take place in open court beginning at 1:30.  The expectation is that the jury will be selected today.  Opening arguments are currently scheduled to begin at 8:30 on Tuesday morning.

Churchill v. University of Colorado: Overview of the Claims (Professor Martin Katz)

We have prevailed upon Professor Martin Katz at the University of Denver Sturm College of Law, to provide his thoughts on the claims made by Ward Churchhill in Churchill v. University of Colorado.   Professor Katz specializes in anti discrimination law, both within constitutional law and employment law.

As Professor Katz writes:

There are two claims that will be tried: A wrongful termination claim under the 1^st Amendment and a wrongful investigation claim under the 1^st Amendment.

Wrongful termination. This is a fairly traditional claim. The claim is that Prof. Churchill was fired because of his speech (particularly, his post-9/11 essay). The University does not appear eager to fight a test case over whether state universities can control the speech of their professors. So it will likely rely on the factual argument that it did not fire Prof. Churchill because of his speech. This claim will be analyzed under the familiar framework in Mt. Healthy University Dist. v. Doyle, 429 U.S. 274 (1977).

There are two steps in this framework. First, Prof. Churchill will have to prove that his speech was a “motivating factor” in the University’s decision to fire him. “Motivating factor” essentially means that the University considered his speech as a factor in its firing decision. Prof. Churchill’s complaint claims that he has a lot of evidence to support his motivating factor case. If he can produce this evidence, he will likely be able to show that his speech was a “motivating factor” in the University’s firing decision.

Second, if Prof. Churchill does prove that his speech was a “motivating factor” in the University’s firing decision, then the University will have the opportunity to prove that it would have reached the “same decision” even if it had not considered his speech. In other words, the University can try to prove that it had other reasons for its firing decision that were independently sufficient to reach that decision – and thus, that Prof. Churchill’s speech was not a “but for” cause of its firing decision.

Most likely, the University will point to allegations of plagiarism and substandard scholarship and claim that it would have fired Prof. Churchill for these reasons, even if it had not considered his speech. If the University proves its “same decision” defense, it will win the termination claim (even if Prof. Churchill had proven that his speech was “motivating factor” in the decision to fire him). Given the difficulty the University may have fighting the “motivating factor” portion of this claim, and the efficacy of the “same decision” defense, expect most of the action on this claim to focus on the “same decision” defense.

Wrongful investigation. This claim is essentially a clever variation of the wrongful termination claim. Prof. Churchill could fight the wrongful termination claim by arguing that he would not have been fired but for the investigation and that he would not have been investigated but for his speech. But doing so would require him to take on the burden of proving two levels of but for causation – not an easy task. So instead, he has advanced a fairly novel claim: a wrongful investigation claim. This claim is essentially that the University decided to investigate him because of his speech.

His hope seems to be that he can shift the burden on this claim in the way that Mt. Healthy allows him to shift the burden on his wrongful termination claim. If Mt. Healthy applies to this claim, he would only need to show that his speech was a “motivating factor” in the University’s decision to investigate him. (This should not be too difficult, given the numerous quotes by high ranking officials in the news at the time who said, in essence, that they regretted that they could not fire Churchill outright because of the pesky First Amendment, but instead planned to investigate Churchill to see if they could find grounds to fire him.)

Then, the University would bear the burden of showing that they would have reached the “same decision”; that is, that it would have investigated him even had he not engaged in controversial speech. This may be tricky for the University. But the University will likely try to argue that they received complaints about Prof. Churchill’s work from various third parties and could not reasonably ignore those complaints. The trick will be to argue that such complaints – which were almost certainly fueled by the tipsters’ disagreement with Prof. Churchill’s essay – should be seen as a cause of the investigation that is somehow independent of the essay because the complaints came from private parties. An interesting question.

A second interesting question about the wrongful investigation claim has to do with damages. If Prof. Churchill proves that he was wrongfully investigated, how was he hurt by that investigation? Prof. Churchill will argue that the investigation caused his termination, and attempt to collect damages related to his termination (lost wages, for example). But to do so he will have to show – you guessed it – causation: that, but for the investigation, he would not have been fired.

(By way of disclosure: I am unabashedly a causation nut, and regularly write on issues of causation in anti-discrimination law. See, e.g., Martin Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law, 94 Georgetown Law Journal 489 (2006). I am currently working on a book on causation issues in constitutional law, including the law of free speech. My website is: http://law.du.edu/index.php/profile/martin-katz.)

Churchill v. University of Colorado: The Jurist Overseeing the Case

The trial is currently scheduled to begin on March 9 in the Denver district court.

Judge Larry Naves, the Chief Judge, will preside. A native of Birmingham Alabama, Judge Naves is an experienced jurist, having served on the Denver district court bench since 1987.  Appointed as chief in 2006, he has a JD from the University of Colorado and, before joining the bench, served in both the Colorado Public Defenders and the US Public Defenders Office.

In the most recent retention analysis done of the Judge, he generally received high scores.

• Judge Naves received high ratings from attorneys and non-attorneys in virtually every category, particularly in the areas of efficiency in handling his courtroom, treatment of parties without attorneys and providing timely access to the court in emergency matters. Of attorneys responding to the questionnaire, 83% recommended that Judge Naves be retained, 11% recommended that he not be retained and 6 % had no opinion. Of the non-attorneys responding to the questionnaire, 79% recommended retention, 9% recommended non-retention and 12% had no opinion.

He has a reputation for being pleasant in the courtroom, even soft-spoken.  He is likely to treat the parties and their counsel in a non-intimidating fashion.   

Churchill v. University of Colorado: The Lawyers

The case will be tried by two very strong and experienced lawyers. 

Ward Churchill is represented by David Lane with the firm Killmer Lane and Newman.  Lane is a well known plaintiffs lawyer, with a reputation for being both successful and aggressive.  He has been involved in a number of high profile cases against the government.  These include Steven Howards, who was accused of harassing Vice President Cheney, Marie Morrow, an honor student who was suspended from her school for 10 days for having three fake rifles for use by her Young Marines drill team in her SUV, protesters arrested at the DNC, protesters who tried to obstruct the Columbus day parade, and the Hells Angels in a suit with the Denver police.

Patrick T. O’Rourke, a Georgetown grad, represents the University of Colorado.  Formerly a shareholders with Montgomery, Little & McGrew, Mr. O'Rourke now works for the Office of University Counsel at the University.  He has served as a member of the Colorado Bar Association’s Ethics Committee and has been on brief on a substantial number of high profile cases such as Simpson v. University of Colorado, 500 F.3d 1170 (10 Cir. 2007).  He is, by all accounts, an experienced litigator.

It is interestingly not the first time the two lawyers have squared off against each other.  In Smith v. Plati, a case brought by Theodore Smith, the operator of a website, Netbuffs.com, against David Plati, the Assistant Athletic Director for Media Relations of the University of Colorado, alleging a variety of claims.

Covering Churchill v. University of Colorado

This Blog has undertaken a number of innovative tasks.  One is that it continues to serve as a rare example of student-faculty collaboration.  As part of that approach, the Blog looks for unique content that has pedagogical value.  One way to do this is to have students cover important trials and blog about them.  They learn substantive law, observe talented lawyers in action, and refine their writing skills.  As part of that approach, this Blog covered the trial of Joe Nacchio, the former CEO of Qwest, with students attending every session during the six week trial.

Consistent with that approach, students from the Race to the Bottom and the Student Employment Law Association at the University of Denver Sturm College of Law, and faculty from the College of Law and the Daniels College of Business, will be providing daily coverage of the suit brought by Ward Churchill, a former tenured faculty member in the Department of Ethnic Studies at the University of Colorado, against the University of Colorado.  The trial begins on Monday, March 9.

Churchill came to the public forefront when reports surfaced about an essay he wrote that contained critical comments about the US concerning the 9/11 attacks on the trade towers in NY (the comments are posted on Wikipedia). Churchill was ultimately dismissed from the University of Colorado. He has brought suit alleging essentially that he was dismissed for exercising his first amendment rights because of the criticisms in the 9/11 essay.  The University of Colorado, on the other hand, is asserting that Churchill was dismissed because his conduct fell "below minimum standards of professional integrity." 

Students and faculty will attend every session of the trial. They will post after each session, assessing the progress of the trial. In addition, others will be asked to participate and write occasional commentary.

The trial is not a corporate governance matter so the posts will not appear on the main page of The Race to the Bottom.  Instead, there is a special link to Churchill v. University of Colorado accessible from the main page of The Race to the Bottom.  

Primary materials, including the complaint and the answer, are posted on the DU Corporate Governance web site. 

Churchill v. University of Colorado: The Format

Welcome to the coverage of Churchill v. University of Colorado.  This will be the second trial covered by students at the University of Denver and reduced to blog posts.  Coverage will be designed both to provide a broader understanding of courtroom events than what typically appears in the hard copy media and to provide students with a strong learning experience.

Approximately 10 students will attend all or substantially all of the three week trial.  Students will read the amended complaint and answer and most will attend a lecture given on the legal issues surrounding the suriving claims in the case. 

The trial will be divided daily into two sessions, one that begins in the morning and breaks at lunch.  The second will begin after lunch and go until the trial breaks for the day.  Students will attend a session, take notes (all indications are that laptops will be allowed) and, at the end of each session, write a post on the events that transpired.  The post will then be reviewed by faculty and, once done, posted.  We hope to have posts up within a relatively brief time after each session.

In addition, faculty may comment from time to time.  We also plan to ask experts in the area to write comments on the daily events.  If there are significant motions or documents filed in the case, we will endeavor to obtain them and post copies at the DU Corporate Governance web site. 

Please feel free to comment on the coverage.  Note however that we reserve the right to not post comments, entirely at our discretion, and will do so if the post contains unacceptable language or is otherwise written in an intermperate manner.