the Race to the Bottom

Lane continued his cross examination of Dean Gleeson that was continually marked by confrontational questions and answers that Lane then used repeatedly the video testimony in front of the Privilege and Tenure Committee to show Gleeson’s inconsistent testimony. Near the end of the afternoon, the judge allowed CU to stop the examination of Gleeson in order to allow Senator and prior CU regent to testify since the time was the only one available for her to testify at the trial for the defendant.

Lane first confronted Gleeson on the point that when the Department of Ethnic Studies was feeling so threatened by the public firestorm and accompanying email, it sent an open letter through Gleeson seeking support for the department. Gleeson said he could not retract the hate email, but did admit that he did not respond to the open letter.

Lane asked about the three faculty members who were brought up on charges of research misconduct since Ward Churchill’s investigation. Gleeson said three, but none of them were fired. In response to the question regarding whether any student had been thrown out of the University for improper footnotes, Gleeson said “I doubt it.” This question and answer was effective since Gleeson stated in the morning that he could not rightfully decide to retain Ward Churchill when “we don’t hold faculty members to the same standards we expect from students.”

On re-direct, CU counsel asked Gleeson a series of questions regarding research misconduct that Gleeson agreed with. First, don’t even middle school students understand that plagiarism is wrong? Second, do they also understand that they cannot do the work for another student and let the other student take credit for the work?

Gleeson made several emphatic statements about the extent of the research misconduct found by the Investigative Committee that he read and formed his opinion that there was ample evidence of fabrication, falsification, and plagiarism to an “extent I have never seen before.”

Gleeson pointed in particular to the statement in the Investigative Report at the end of Section C. He shared the Committee’s disappointment that Churchill did not acknowledge errors and inappropriateness of misleading his readers and denied he had plagiarized. Consequently, Gleeson said he was not confident that there was any way this matter would be mediated with Churchill since he would not repair the damage he caused with his research misconduct. Gleeson then said:

• Thus, I needed to look parents in the eye that our faculty would be held to the same standards s our students were. I was concerned that Churchill would train the next generation of scholars improperly and finally I told chancellor that I lost confidence in Churchill’s ability to review the scholarship within the department and within the university; I essentially lost trust that he was conducting himself at the same ethical level of other professors. Consequently, I recommended termination since there was a large pattern of research misconduct over the time of his otherwise outstanding career.

Then came a series of questions from the jury again indicating its leaning perhaps to Churchill’s side:

1. When the public was making these statements, did CU ever publicly state that this was Churchill’s right? Gleeson responded that the Investigative Report that was made public makes clear under case law on why Churchill’s speech was a fully protected under the U.S. Constitution.

2. It seems as though the essay caused a lot a friction, now that he has been fired, do the groups, parents, alumni, now seem to be settled in their minds or is there still friction? Gleeson responded that the friction has settled down, but still simmering.

3. Do you feel someone should apologize-- that he does not find that he did wrong-- just to satisfy others? Gleeson responded that if I were Churchill and my peers said my behavior was wrong, I would swallow my pride and apologize and correct the scholarship record.

4. Do you feel if there was no public outcry, do you feel that there would have been an investigation on his research? Gleeson responded, “No, but if misconduct allegations had come, then would have had to act on them.”

5. When asked for help [Ethnics Department]; why not respond to their letter? 

CU’s counsel then asked Gleeson whether he was committed to helping the Ethnic Studies Department to not only survive, but thrive? Gleeson answered, “Absolutely.”

CU called its next witness Joe Rosse, Ph.D. in Psychology.  Professor Rosse is the head of the Office of Research and Integrity and he chairs the Standing Committee on Research Misconduct (or SCRM). He explained that committee is charged with high standards of ethical conduct and it promulgates standards of good research and responds to allegations of misconduct.

He discussed the process of forming the investigative committee by looking at the criteria for the individuals we were looking for: recognized scholar, a full professor so not subject to pressure, expertise in the field in question, (law and Indian studies, history,) external and internal scholars in the mix.

Lane started his re-cross with an explanation of group think to help explain why 20 faculty members reviewing the research allegations, found a pattern of research misconduct. Lane asked if he had heard of group think: a belief that a group has the moral high ground; thinks everyone shares the same views; protects the group, and takes the lead on the view of the leader. He agreed that these are factors in “group think.” Lane then asked whether the resolution by the Board of Regents on 2/3/05 constituted a “tone and tenor that we are condemning Ward Churchill and we apologize for his essay” and thus constituted “the view of the leader” expecting followers to implicitly follow this lead.

The witness responded that still the committee had the duty to investigate the allegations and objectively determine whether misconduct had occurred.

Lane then pressured the witness on why he had selected Wesson to chair the committee. He noted that she had a great legal background and a prosecutor at one time in her career. Lane countered effectively, but don’t prosecutors normally put away the “bad guy” like OJ and others. However, the witness admitted that it was only a small part of his decision. Lane then showed the court his testimony before the P&T committee in which he said there were two factors: (1) Wesson knew the law; and (2) she was a former prosecutor. Lane again questioned why in his prior testimony he listed the two factors equally.

Then Lane came upon two issues with the witness that seemed compelling. First, he got the witness to admit that it would have been better for the witness to see the Wesson email potentially showing bias against Churchill because the Standing Committee on Research Misconduct really needed to determine whether the purported bias should disqualify Wesson. Then Lane asked why the Wesson email was never shown to us by CU, but he did not know.

Second, Lane asked why the Standing Committee allowed the Investigative Committee to refuse to not investigate the late additional allegations. He gave three reasons: (1) Churchill refused to play ball anymore; (2) the issues were not that significant; and (3) it was not a good use of CU’s resources. But Lane countered, “But what about the sacrosanct duty to discover the full scholarship record and correcting it where it is found to be flawed as professed often by members of the Investigative Committee?” The witness said in the end, it was not the best use of CU’s resources.

Somewhat rhetorically, Lane said isn’t the real reason was that you had enough to convict Churchill and to pursue additional allegations was like shooting a dead person?

CU’s counsel requested at this point to preempt the examination to allow the next witness to testify since it was the only time she could testify at the trial.

Then CU called Regent Gale Schwartz who is currently a senator in the Colorado General Assembly. She stated that Ward Churchill’s essay was ultimately found protected by the chancellor and “I agreed with that determination.” She also offered that “We should not compromise our own process and principles by which the institution is jointly governed.” This meant that she did not feel obligated to act on the governor’s wishes and meant to uphold the Constitution.

Lane did not have much time to cross examine her, but made some points regarding how disgraceful she found the essay to be and that it would not be right to instigate an investigation solely on the grounds of the 9/11 essay.