the Race to the Bottom

Dramatic Testimony of the Morning: “I don’t know which hurts more-- my 9/11 wounds or that a professor from my alma mater thought I deserved it.”

With Judge Larry Naves welcoming the members of the jury this morning by stating: “Isn’t it a privilege to live in Colorado,” the courtroom laughed but wondered if the trial would be truncated today due to the blizzard. The judge did indeed close the courtroom for the afternoon with the hope that tomorrow might allow the balance of the testimony to be given for the trial, instead of Monday.

However, the morning session was eventful as O’Rouke continued to parade CU’s Board of Regents before the jury to assert the following: (1) the disruption and harm to CU related to the 9/11 essay by Churchill was significant; (2) the 9/11 essay was protected speech; (3) the authorization to start an investigation by the Chancellor in February 2005 was not to find an alternative basis to permissibly fire Churchill; (4) the fact that 20 full professors, mostly employed by the University of Colorado, found by a preponderance of evidence that Churchill engaged in a pattern of falsification, fabrication, plagiarism constituting research misconduct was highly compelling in their decision to terminate Churchill; (5) the board members believe in a shared governance with professors who are independent professional employees who do not automatically follow the wishes of the Board; (6) the argument that Churchill should be held to the same standards applied to students attending the University of Colorado compelled them to vote for Churchill’s termination.

And, it is interesting to point out that the two members of CU’s Board of Regents who testified this morning earned their law degree from CU along with Judge Larry Naves.

Colorado Regent Kyle Hybl was called by O’Rouke first. Kyle Hybl explained that he is general counsel for the Broadmoor Hotel in Colorado Springs and took office as a member of the Board of Regents in 2007. He testified quickly that he decided to vote to terminate Churchill based on the information of falsification, plagiarism, and lying with respect to Churchill’s writing. Hybl claimed that firing Churchill was “for the good of the university” because research misconduct was established by twenty-five faculty members by clear and convincing evidence and to not terminate would create a problem with upholding students to these same standards.

Upon cross-examination, Lane challenged Regent Hybl on his assertion that the 9/11 essay was not on his radar screen until late December 2006 when he filed to run for the Board of Regents. Lane showed the jury Hybl’s video testimony before the Privilege and Tenure Committee indicating that it was on his radar screen in 2005. Hybl, in response, said it might have as early as late 2005.

Lane also brought up the “group defense” theory to explain how 20 full professors could all conclude that Churchill committed research misconduct by discussing how smart mean “group thought” that Iraq had weapons of mass destruction for justification for invasion. Lane then asked, if the report is inaccurate, then your decision is inaccurate, under the “garbage in, garbage out theory”?

O’Rouke on redirect asked if multiple levels of review were installed to insure the accuracy of the investigation and Hybl concurred explaining that is their purpose. He also explained that accuracy was further established by the higher burden of proof found not by the Investigative Committee (using “preponderance of evidence,” but by the reviewing “Privilege and Tenure Committee” in its report at Paragraph 6.1.3 that found the pattern of research misconduct by “clear and convincing evidence” since this much higher burden is required when termination was being considered by the university.

During the morning O’Rouke also called Colorado Regent Michael Carrigan, another CU Law School graduate to the witness stand. Carrigan testified that the usual commitment in time as a member of the CU Board of Regents is 40 hours a month, but during the spring of 2005, the Churchill crisis “left him hardly any time to devote to his law firm.” Carrigan also stated that in his mind the motivation for authorizing the Chancellor’s thorough investigation of all of Churchill’s writings and speeches was to determine the rights and obligations possessed by both the professor and the university. He wanted the investigation to determine whether Churchill was representing that the protected speech was coming from him as a private citizen or as a representative of the University of Colorado, a very important distinction in Carrigan’s mind.

In response to O’Rouke’s question used by Lane on cross examination in the past: “Were you sending out the Chancellor on a witch hunt?” Carrigan said “No.” But he did believe that Churchill’s 9/11 Essay did bring “dishonor to the University” and explained it with an emotionally gripping story. First, Carrigan described how he, and a CU alumnus injured in the 9/11 attack, viewed the 9/11 Essay: as an endorsement of violation and that 9/11 victims were not innocent even though civilians. The CU alumnus told Carrigan: “I don’t which hurts more-- my 9/11 wounds or that a professor from my alma mater thought I deserved it.”

Carrigan then testified that it would have been unconstitutional to fire Churchill based upon the 9/11 Essay. However, he explained why the New York Times quoted Carrigan in an interview that “We can’t fire him today, but he could be fired tomorrow” was not indicative of a planned witch hunt, but rather an attempt to explain the importance of tenure in protecting academic freedom, but that tenure does not protect a professor for life regardless of the behavior giving an example of a professor who habitually fails to attend the class he is teaching. Carrigan maintained that he really did not know the outcome of the investigation.

Carrigan also testified that termination of Ward Churchill would send a message that a strategy by a controversial professor to engage in outrageous speech cannot rely on the argument that the university cannot now investigate me. In other words, a professor cannot “immunize” himself from investigations of research misconduct under these circumstances because he would be given additional rights of protection than normal. By the way, this is the justification the U.S. Supreme Court in its decision cited by O’Rouke in his answer to Churchill’s complaint which stated the following:

The University’s conduct was appropriate because the University would have taken the same actions against Professor Churchill in the absence of any alleged unlawful conduct under the analysis described in Mr. Healthy.

Joseph Rosse, the CU Professor that chaired the Standing Committee on Research Misconduct, was called back to finish his testimony interrupted previously to accommodate a regent’s testimony. Lane continued where he left off on the contention that Rosse statement that termination was warranted since there was clear evidence of a pattern of research misconduct spanning a large portion of Churchill’s scholarship.

Lane skillfully collapsed the charges and characterized the pattern of misconduct spanning over 30 years of scholarship as the following:

1.      Convicted of misrepresenting of the General allotment Act of 1887 and the 1991 Indian Arts & Crafts Act in 1990;

2.      Convicted of the one liner by Churchill that there was “strong circumstantial evidence” for the Fort Clark Smallpox incident;

3.      Convicted of one instance of ghost writing

4.      Convicted of two instances of plagiarism

Consequently, he was convicted of falsifying stuff on 4 occasions, but even if he did this, he had lots of enemies. Rosse answered “Yes.” Lane then asked was this the “best stuff” you had? Rosse answered, “The only stuff.” Lane then asks, in 4,000 pages of scholarship and over 12,000 footnotes, this is all you got.” Rosse replied, “All we got.”

Lane then remarked, “But a pattern is something repeatedly done over and over again.” Is it your testimony that the pattern extended to all of Churchill’s 30 year record of scholarship? Rosse answered, “We only looked at what we saw; we did not presume more.”

Lane countered: “Also, Churchill was not sorry or did not apologize; this played a role in your decision? Rosse answered “The issue was whether was he took responsibility for these allegations.”

Lane pointedly responded: “Are you telling me that you wanted Churchill to just say, ‘I made this stuff up and I am sorry” you would not have terminated Churchill.’” But isn’t it true if he just said I made mistakes, this is not really fraud.” Rossa replied: “Right, if he said it was an honest mistake, then it would have affected the determination of whether it was intentional.” Rosse added that had Churchill written a rebuttal article to Lavelle’s attacking journal article, then a factor on the intent issue. Lane wondered if this should be so if Churchill believed that the article was so baseless as not warranting a response.

Lane asked whether Churchill was terminated to send a message that CU will not tolerate this.” Rosse said, “Yes, a fair statement.” Lane, “Pitcher of warm spit?” Rosse, “a cold way of putting it, but yes,”

O’Rouke then proceeded with his redirect of Rosse asking him about his “group think” testimony previously that followers go along with the position of the leader(s) and asked: “Has it been your experience that faculty group thinks with the regents and CU administration?” Armed with a PhD in Psychology, Rosse answered, “No,” and explained that the “Psychological reactance Theory” is useful to understand why this is true. The theory states that if you tell someone to do something, that person will do the opposite.

O’Rouke then asked: “What was more important: the lack of an apology or the misconduct? Rosse: “Misconduct was the main one.”

O’Rouke then asked the ubiquitous question: “You were not trying to go in there to prosecute Churchill.” Rosse responded, “That‘s correct.”

With O’Rouke finished with Rosse and with Lane stating he had no more questions, the jury gave the judge two questions:

1.     Was it more important for the SCRM (Standing) committee to have a full professor than someone who had expertise in Indian studies; “We wanted a full professor with the expertise.”

2.      Did the committee consider substituting another chair once Churchill raised the Wesson biased issue? “I recall approaching Professor McIntosh, but don’t know”

Again, these questions may indicate jury members’ perception of weakness in CU’s case: (1) that the Investigative Committee failed to properly include experts in Indian ethnic studies (CU would point to Robert Clinton, a published Indian law scholar but not a published Indian studies scholar according to Churchill’s expert on Indian studies, Eric Cheyfitz, and to Jose Limon, a Mexican American studies scholar, but not an Indian studies scholar); and (2) that the Investigative Committee did not properly investigate promptly bias or conflict of interest on the part of Wesson. These issues might have real traction with the jury since they bring into question the fairness of the investigation process.