the Race to the Bottom

The last morning of testimony consisted of two regents: Steven Bosley and Thomas Lucero. There testimony had added relevance since the judge ruled at the end of the day that one of the jury instructions was going to state that Churchill would need to show retaliation for the protected 9/11 Essay was a substantial motivating factor by a majority of the board members of the CU Board of Regents. Moreover, Lane was continually frustrated that the judge prevented him from pursuing the ACTA (American Council of Trustees and Alumni) line of questions with these two trustees to show their connection to the agenda espoused by ACTA regarding tenure and balance in the classroom.  He passionately stated that this line of questioning goes to the heart of the case and was not irrelevant as the judge ruled.  Lane objected and wanted the objection preserved for appealing the case if necessary.

On direct examination, Bosley testified why he voted to terminate Churchill in June of 2007: 1) viewed points in the 9/11 as anti-American; and 2) a pattern of research misconduct was found by the various committees reviewing Churchill’s scholarship.

On cross examination by Lane, Bosley admitted that he said the following:

1.  to the Daily Camera that Churchill gave CU a black eye;

2.  there is faculty group on campus that has anti-American perspective, socialistic, anti-capitalistic perspectives, without bringing balance into the classroom.

3.  but that he could not name a single student that claimed Churchill did not conduct a balanced classroom.

4.   Silver and Gold interview on 2/3/05: he said he would terminate Churchill since his conduct was outrageous, but he claimed he did not tell Betsy Hoffman this as well.

On this last point, Lane impeached Bosley’s testimony by showing Hoffman’s deposition in which she states that before the special meeting of the board of regents, she was quite sure that the following regents wanted to terminate Churchill: Bosley, Rutledge, and Lucero. Bosley said Hoffman was incorrect.

Then came a jury question:

We heard a lot of comments on large amount of emails, faxes, etc, when the esasy came in public view; can you give us information on what was like in June of 2007, was it dissipated?

Answer: by that point no longer was the essay a primary issue; I got questions about the processes, procedures, hearings, time frames, extensions, and so forth. Not so much on the essay, and almost totally on process and procedure.

Next, O’Rouke called Thomas Lucero to the stand who explained his vote to terminate Churchill based upon Hank Brown’s recommendation, decision based upon the findings of the investigations that all 19 faculty members had concluded there was research misconduct, even though a split recommendation on sanctions—a 10/9 split between sanctions and dismissal.

Since this point was discussed by witnesses a great deal, the following review of the reports indicates the following breakdown between professors recommending suspension and dismissal

Then Lucero volunteered the following shocker: On the day we met on February 2, 2005 at our special board meeting, I saw an opportunity, after 6 years at that time of being a regent, to have a platform with the press there, about reforming the tenure process and the dismissal process, as well as curriculum.

He disagreed with Hoffman’s testimony that he wanted to fire Churchill before the 2/3/2005 regents’ meeting. And to emphasize that he did not want to terminate Churchill in retaliation for his 9/11 Essay, Lucero said that Churchill presented a unique opportunity since “no one listened before on my issues for reform, it just was not possible to effect policy change before; now since Churchill is the face of the university, why would I want to get rid of him since I needed him to stay at CU for my continuing platform.”

Lucero also said tenure does protect this essay but when he first read the essay, he did not realize it was not intended to be a scholarly work in a scholarly journal because it was a polemic work. This is an important distinction for Lucero in order to explain that by the time of the vote to terminate Churchill, he understood that it was protected speech.

Confronted on CNBC with Scarborough who asked the following question of Lucero early in the 9/11 firestorm, “Do you have the guts to fire Churchill?, Lucero stated that “I can’t say now since if I tip my hand and give Churchill’s attorney a way to say I am biased, I would be removed from the proceeding, and I don’t want that.” In response to this, Lucero said he was not inferring that he was biased, only that he was trying to keep his objectivity for future proceedings involving Churchill.

Lane asked Lucero about his comments calling for a thorough review of CU’s core curriculum. He said he did want a review of the core curriculum and all departments/courses at CU in order to see the value in them and was trying to get attention on these issues important to him. “I was not singling out the ethnic studies department.”