the Race to the Bottom

The courtroom was full, but not packed, with the usual Churchill trial observers, mostly Churchill supporters. Questioning was repetitive and tedious at times. Professor Tom Mayer was passionate in his support of Churchill, but frequently had his replies on cross examination struck for non-responsiveness (meaning, he rambled). Dean Gleason was agonizingly precise and careful in his replies to cross examination, reminiscent of Mimi Wesson’s trial testimony.

The attorneys stayed true to style. Pat O’Rourke often pounded questions in his precise “list” way: “Isn’t it true that Churchill doesn’t need to be reinstated to publish articles? Isn’t it true that he doesn’t need to be reinstated to publish books? Isn’t it true….” Etc. David Lane used colorful exaggeration (by his own admission) to describe professors as working for bosses who violate the First Amendment. Toward the end of the day, Lane’s exaggerations got to be too much for Judge Naves who sustained all objections to them and caused Lane to say that he didn’t have any more questions because he couldn’t say anything. Judge Naves did not seem amused.

My prediction is that Judge Naves will rule on the law, which is that reinstatement is the preferred remedy unless the offending employer can prove that reinstatement will severely damage the violating employer’s enterprise. The burden of proof is with the First Amendment violator, and CU does not seem to have met that burden. While the witnesses—especially Professor Jessor—spoke passionately about the importance of research integrity to maintain academic standards, this is a pretty esoteric concept.

In the end, CU had only speculation that the sort-of-proved allegations of research misconduct would so damage the University’s reputation as to affect hiring and enrollment. No proof of that Churchill couldn’t be civil to colleagues; no proof of any professor having left the university or not taken a job because she/he couldn’t bear to be in an institution with an academic misbehaver. In short, no proof that Churchill’s presence would be disruptive other than to a few academics with a well-developed sense of moral outrage over an academic principle.  If Judge Naves rules against Churchill, it may simply be because in the absense of a clear message from the jury, he is unwilling to "send a message" to all erswhile First Amendment violators.