the Race to the Bottom

The afternoon resumed with continued testimony from Jose Limon, Director of the Center for Mexican American Studies at the University of Texas. The defense asked Limon about the sufficiency of “oral history.” Limon responded that oral history must be corroborated with other sources of evidence.

Next the defense turned to Churchill’s article, The Fort Clark Smallpox Pandemic Revisted: A Case Study of Genocide and Denial, attacking specific examples of claimed fabrication. In the article, there is a section entitled Arithmetical Genocide, which discusses the Indian Arts and Crafts Act. In this section Churchill writes:

A person can be an “American Indian artist” only if he or she is “certifiably” of “one quarter or more degree of Indian blood by birth.”

The defense asked Limon whether in his experience as a scholar, the use of quotations suggested that the words came directly from the Indian Arts and Crafts Act. Limon responded that he believed that was the interpretation of the use of quotations in the passage. The defense asked Limon how we would characterize the scholarly misconduct associated with citing an Act for something that it does not contain. He responded that it would be fabrication.

Next the defense asked Limon what his motive was for recommending that CU terminate Churchill. Limon responded, “We found a clear and repeated pattern of certain instances of research misconduct. On the basis of those findings, I decided to vote for dismissal.”

Plaintiff’s re-cross by Bruce was very brief asking whether Limon knew if the Indian Arts and Crafts Act amended a prior act. Limon responded that he did not know. Bruce also addressed attorney’s question regarding support for “oral” history, by asking Limon to recall whether Churchill had asked for more time to produce evidence. Limon recalled this, and recalled that this request was denied.

Bruce next called Dr. Myron Hulen, retired Professor Emeritia from CSU. Hulen was affiliated with the American Association of University Professors (AAUP), which seemed to be the reason he was called as a witness. Bruce began questions about the principles of academic freedom adopted by the AAUP and the Association of American Universities. Bruce, however, did not get very far into this questioning with two quick objections by O’Rourke based on relevance. These objections were sustained and with that, Bruce had no further questions. O’Rourke had no questions and Hulen’s testimony ended a mere seven minutes after it began.

Bruce next called Elaine Katzenberger, publisher and director of City Lights Books in San Francisco. Katzenberger described the small publishing house and bookstore as a cultural landmark in San Francisco that publishes around ten to twelve books per year. Katzenberger related that she had edited and published five books written by Ward Churchill. Her relationship with Churchill began in 1995 when she solicited an essay he wrote for an anthology published by City Lights.

Bruce questioned her about her role as a publisher and the differences between editors and publishers. Beginning a line of questioning about fact-checking, several objections were made and numerous  side-bars consumed the early part of the questioning. Bruce moved on to questions about Katzenberger’s familiarity with Churchill’s writing style. Katzenberger stated that after reading and rereading his work for fourteen years she considered herself very familiar with Churchill’s work. Turning to several of the disputed essays, Katzenberger stated that she could determine which articles he worked on because he has a very consistent style that she described as a “methodical approach.”

Bruce then turned to a September 2006 letter sent from CU to City Lights Books. The letter provided information about Churchill’s firing and provided a website about CU’s findings of falsification. In a very strong moment for the plaintiff, Katzenberger stated that she has fielded lots of attacks concerning Churchill’s published work over the years and have been privy to “other sides of the attacks” and to information that dispelled attacks. Based on her experience, she stated that she did not give the letter much credence.

O’Rourke began his cross by asking if she had visited the website provide by CU to verify the allegations against Churchill. Katzenberger responded that she did not visit the site because she felt that if there were material plagiarized in Struggle for the Land someone would have come forward to address it during the nine years it was available, and this did not happen. Based on her experiences with Churchill she stated that she felt it unnecessary to visit the website.

The court took a thirty-minute recess following Katzenberger’s testimony to prepare for the video testimony of Dr. Marjorie McIntosh, which consumed the rest of the afternoon. McIntosh, a defense witness, was presented out of turn because she is currently in England presenting a lecture series.

In the video, McIntosh stated that she is a Distinguished Professor of History Emertia at CU. Establishing the weight of her testimony, O’Rourke went over both her scholarly history and her initial position concerning Churchill’s First Amendment rights prior to joining the investigative committee. McIntosh stated that she did not know Churchill personally but was troubled by calls to fire him. Relating some brief personal history demonstrating her support for free speech, McIntosh stated that she was troubled by calls to fire Churchill when the media first broached the story. “My sympathies were very much with Professor Churchill,” McIntosh stated. When she was asked to join the investigative committee she said that she was wary of becoming part of a “right wing conspiracy to get Professor Churchill.” However, after reading the Ad Hoc committee’s report, she believed they had made a strong statement in defense of Professor Churchill and thus many of her concerns with joining a scholarly witch-hunt were allayed.

McIntosh’s introduction posed a strong juxtaposition to the picture painted by Churchill’s attorneys of Mimi Wesson. Whereas Wesson had been accused of joining the committee with biases that could be construed as anti-Churchill, McIntosh was presented as having a bias in the other direction.

Discussing her qualifications to analyze Churchill’s work, McIntosh described her work as focused on the history of England between 1300-1600 and the history of women in Africa in the 1900s. Her study of Africa, she stated, helped her ability to judge the importance of oral history and traditions in scholarly work. She said she brought awareness for “relevant methodologies.” She also stated that she has a reputation for being fair-minded and balanced.

O’Rourke then asked whether McIntosh detected any bias on the part of other committee members, including Mimi Wesson. She responded that she saw “no evidence of any kind” of a bias on Wesson’s part: “I was struck by how neutral and fair she was at all times; I saw no bias.”

Turning to the investigative committee’s research concerning the 1837 smallpox epidemic, McIntosh went through a lengthy discussion of her findings on Churchill’s claim that smallpox was spread into the Native American Indian communities through blankets intentionally infected by the United States Army. McIntosh stated that the committee gave him “a great big benefit of the doubt,” taking additional steps to ensure that he had the best possible chance to demonstrate that his work was substantiated. She stated that although they gave Churchill leeway to provide sources for his oral history, he could not provide sufficient support.

Discussing Churchill’s ghostwriting essays, McIntosh stated that publishing under someone else’s name is unacceptable. This, she said, does not honor historical record because if someone writes an article under someone else’s name it becomes impossible to tell who wrote what and who is responsible for the work.  Even worse, she said was Churchill's practice of citing the work and representing that it was someone's work when that actually was not the case:  the appearance given that the citations by multiple authors bolstered his claims.

McIntosh described the broad to narrow questions posed to Churchill by the committee, and she said that based on the evidence she concluded that statements that blankets were taken from infirmaries in St. Louis were fabricated.

On Cross-examination, Bruce immediately asked questions about McIntosh’s CV, clearly challenging her ability to understand oral history in Native American Indian society. McIntosh was immediately on the defensive, arms folded and much shorter responses. While McIntosh gave very elaborate and long answers to O’Rourke’s questions, most of her responses to Bruce were yes and no responses, followed by a brief clarifying statement.

Bruce began asking questions about her knowledge of critical race theory, but McIntosh said she was not familiar with that term. Discussing the 9/11 essay, McIntosh stated that the committee did not discuss the essay because they were charged only with investigating a particular set of allegations that did not include the 9/11 essay. Bruce turned the questions to the motive behind the investigation, to separate her testimony from retaliatory motives of the university. Bruce asked her if she believed that someone else would look into motives and whether retribution was a motivation, and McIntosh stated that they did not focus on whether proper motives existed upon which to start an investigation. Also distinguishing her testimony, Bruce asked questions about McIntosh’s understanding about the timing of the allegations. He asked whether she knew that the allegations had been brought before the standing committee years before; to which O’Rourke stipulated that the standing committee had not received a complaint, but some people in the community had heard of complaints before the convening of the investigative committee that led to Churchill’s dismissal.

The day ended a few minutes early at a convenient break in the video deposition. The final hour of the deposition will resume at 9:00 a.m. tomorrow morning.