the Race to the Bottom

[We have made a correction to the Mar 27 a.m. post.  Judge Naves admonished Regent Carrigan, not Mr. Lane, for an inappropriate comment, and Regent Carrigan apologized.]

CU called Professor Mary Ann Cutter to the stand. Cutter is a professor of philosophy focusing on ethics and the history of ethics, teaching mostly undergraduates at University of Colorado campus in Colorado Springs. She was a member of the P&T committee prior to the Churchill case, having heard four other cases. P&T members for a Level 2 investigation (e.g., Churchill's case) cannot be from the same university campus as the faculty member being reviewed.

Prof. Cutter testified that since philosophy is filled with people who challenge the status quo, her tendency would be to err on the side of supporting someone challenging the status quo. She confirmed that no one from the university, governor’s office, regents or legislature pressured her to arrive at a certain decision. Indeed, she emphasized the confidentiality of the process, and that even her husband did not know she was reviewing the Churchill case until it was over.

Mr. O’Rourke asked all the usual and expected questions about whether Prof Cutter and/or the P&T found evidence of Wesson bias (no), voted a certain way to prevent changes to the tenure system (no), did the P&T rubber stamp the Investigative Committee report (no). Testimony then went through the P&T process, summarily described as “lengthy.” Testimony emphasized how thoroughly the P&T reviewed all 4000 pages of evidence, and that the hearing itself took seven full days when P&T guidelines say that only in extraordinary situations testimony may the hearing continue for more than two full days, one day for CU and one day for the faculty member.

Trying to spare the jury from repeating the “mind-numbing detail” of Friday’s testimony on the three queries assigned to the P&T, O’Rourke gave Prof Cutter the opportunity to say why she decided the way she did. Prof Cutter, however, was essentially unable to clearly articulate the reasons for her decisions, being “more comfortable going to the text” to come up with a reply.

Most of the testimony went over familiar ground. Prof Cutter’s main point was that ghostwriting was wrong because it went against the academic and ethical standard of “truth-telling.” Mr. O’Rourke tried in vain to get the Professor to elaborate on why ghostwriting is so bad, but it was hard for her to articulate reasons other than it is not truthful. Citing to a ghostwritten article gives the impression that there is multiple support for data, evidence, views, claims. In academics, multiple support for an idea is typically seen to be good and can make a difference in how that idea is used down the line.

Prof Cutter was a cautious and hesitant witness even with CU questions, quietly re-running each query in her mind before answering. Cross examination was bound to exacerbate that tendency. At one point, when Lane re-stated his question after she took a few moments to answer, Prof Cutter told him she did not think it was a trick question but wanted to be sure she understood it before answering.

Again, generally familiar territory on cross. Mr. Lane did get into a philosophical discussion on the Hegel dialectic, the notion that someone puts out a thesis, which is countered with an opposite antithesis, which the “marketplace of ideas” then synthesizes into a higher truth. When Lane read extensively from Prof Yellow Bird’s testimony about how fantasies are needed to produce the antithesis to the thesis of the master narrative and how this  “master narrative” has oppressed indigenous people, it seemed more designed to remind the jury of that testimony than to get an answer from Prof Cutter, who seemed a little puzzled by it.

Lane tried to get traction on the “blood quantum” issue and the use of quotes by referring to a part of the P&T report where “but for” was used in quotes in a section title. This also seemed to puzzle Prof Cutter who noted that the P&T found that the whole allotment act, blood quantum issue did not fall to the level of “below minimum standards” of academic conduct, i.e. Churchill was not guilty of that item, just the citing of the ghost writing issue.

Turning to ghostwriting, Lane went through a series of questions once again pointing out that while there are specific academic policies relating to plagiarism, falsification and fabrication, there is nothing written about ghostwriting being wrong. Prof Cutter’s testimony basically came down to her assertion that ghostwriting is just wrong because it violates the standard of truth-telling because she admitted that she is unaware of any policy or standard against it. Lane then made a parallel between Prof Cutter—and other P&T members—signing off on the report as being a case where they all were ghostwriting for each other. Additional inconsequential questions were asked, paused over, briefly answered, or objected to and generally sustained (re questions on answers other P&T members had given).

In redirect, O’Rourke addressed the inference that the P&T members ghostwrote the report for each other. Prof Cutter confirmed that multiple copies of the report were passed back and forth between members, with much discussion and re-examination of the underlying documents, and no, there was no proof that Rebecca Robbins and Churchill had any "give and take" or even a conversation about the piece he ghostwrote for her. Addressing the lack of written prohibition against ghostwriting, O”Rourke asked if established standards can arise out of community practices? (yes) This line of rebuttal led, unfortunately, into a lengthy reiteration of citation standards that include the assumption that you cite to people who have actually done the research work. Lane objected to questioning on the basis of Rule 403 (exclusion of evidence based on waste of time) but was overruled as the testimony countered his assertion that there was no standard prohibiting ghostwriting.

No jury questions.

The next witness called was Patricia Hayes, CU Regent from 2002 to 2008. Mrs. Hays is a registered nurse, but has spent most of the last 30 years serving on various school boards at local and state level. She ran for regent when a new district was created where she lives and no one else was interested in running. Laughingly denying any political aspirations as a result of the job, she said it is a volunteer position taking 15-20 hours per week when not the chair and 30-35 hours when serving as chair. She served as a way to “give back” to CU which is alma mater for her husband and youngest child.

Mrs. Hayes confirmed that the regent’s job is to serve the voting constituency (Colorado is one of only three states that vote for regents) by hiring the university president and setting policy. O’Rourke then took her through the familiar litany of the “firestorm” (but not using that word today) of complaint, protest, threats, etc. that she and all the other regents received following publication of the 9/11 essay, as well as a flurry of academic misconduct allegations. She especially noted concern about a decrease in out-of-state students since one out-of-state student supports three in-state students.

O’Rourke took Mrs. Hayes through some complicated questioning to reveal that the regents did not know, at the time of the firestorm, what was or wasn’t protected speech or what Churchill’s rights and responsibilities as a state employee were. They asked Chancellor DiStefano to investigate and advise on those issues, with the understanding that the investigation would include protected speech and other Churchill writings.

 Did you understand that to mean the Chancellor would dig through everything ever written by Churchill? No.

 Did you ever charge the Chancellor to “Go find us a reason to fire this guy? No.

 Do faculty committees tend to do what the regents ask them to do? (laugh) No, they tend to do the opposite.

We broke late for lunch, as we started late due to snow and traffic delays. Defense testimony is likely to continue until at least Tuesday afternoon, although one wonders if there are not diminishing returns to be gained from hearing from additional committee members and/or university officials. Everyone is tired of this trial, and there doesn’t seem to be any new territory to cover.

Counsel for both sides have submitted their version of jury instructions to the judge, and an in-chambers conference was scheduled for 1:00 p.m. today to hash out the final version. Jury instructions could be key in this case, as they specify the decision-making standard the jury is to apply in coming to its verdict. The more specific the requirement that plaintiff prove its claims, the better for the defense. But no matter the instructions, those of us who have been covering the trial regularly predict that it will take quite a while for the jury to reach a verdict.