the Race to the Bottom

Mr. Lane resumed his cross examination of Regent Pat Hayes, beginning with her comments from the regents’ meeting on 2/3/05. “Mr. Churchill’s comments are not simply anti-American. They are at odds with simple decency and antagonistic to the beliefs and conduct of civilized people around the world.” Lane clarified that Hayes found Churchill’s comments anti-American and then asked if she believes an anti-American professor such as Churchill should be allowed to make those kind of comments and still teach at CU. Regent Hayes stated that she doesn’t want a professor making those kinds of comments, but that Churchill’s comments are protected speech. She concluded by emphasizing that she doesn’t want a CU professor who’s guilty of plagiarism to continue teaching. Mr. Lane then asked if you can fire a professor for being anti-American. Regent Hayes replied you can’t fire someone for being anti-American, but you can fire someone for plagiarism. She stressed that the charges against Churchill were not trumped up. She agreed Churchill’s views are far outside the mainstream of useful discourse or academic work. Lane asked if the 9/11 essay was academic work, and she admitted she had not even read the essay at the time of the board meeting (2/3/05) when she was characterizing the 9/11 essay.

Purpose of the Chancellor’s Investigation:

Mr. Lane then questioned Regent Hayes on the predominant purpose of the investigation that Chancellor DiStefano conducted after the CU Board of Regents voted to authorize it. Lane continued to point to Chancellor’s DiStefano’s comments detailing a “thorough examination of Churchill’s writings, speeches, tape recordings, and other works.” While Hayes stated the main purpose of the investigation was to determine if Churchill’s 9/11 essay was protected speech or not, Lane kept coming back to the scope of the investigation, as defined by DiStefano’s description. According to DiStefano’s statement to the regents, the investigation’s purpose was to find grounds to terminate Churchill. But Hayes reiterated the purpose was to determine if the 9/11 essay was protected speech. Hayes maintained that while she disagreed with Churchill’s politics as articulated in his 9/11 essay, she didn’t know the whole context of that essay and needed to know if it was protected speech or not.

Hayes conceded that DiStefano did not limit his examination to the 9/11 essay, and she agreed that she wanted DiStefano to examine everything, all Churchill’s works that were available, to look for cause for dismissal. She also clearly stated that the 9/11 essay motivated the investigation, and that essay is why she voted to authorize the investigation on 2/3/05.

Mr. Lane then asked if the rational course of action for the regents to have taken in investigating whether the 9/11 essay was protected speech would have been to have a lawyer read the essay and render a legal opinion on that question? Hayes agreed the regents could have done this, but instead, Chancellor DiStefano launched this thorough investigation into every word Churchill’s ever written.

Hayes stated there was no discussion at the 2/3/05 meeting of firing Churchill, but Mr. Lane returned immediately to DiStefano’s comments that outlined the purpose of the internal review was to determine if Churchill overstepped his bounds in order to find cause for his dismissal. Hayes disagreed with the implication there was anything improper in the 2/3/05 meeting. Lane established that at least some of the regents wanted Churchill to face some sort of discipline before the 2/3/05 board meeting by getting Hayes to admit to her interview statement in the CU Silver and Gold on Mar. 12, 2005 when she stated that a majority of the Board of Regents wanted Churchill to face some sort of discipline. Hayes replied the regents knew there was a process to follow, and their personal opinions didn’t enter into this process. She emphasized that Churchill was fired for plagiarism and fabrication, not for his speech. Mr. Lane then asked if it is fair to have the same regents who wanted him fired for his speech in 2005 to vote on whether to fire him for academic misconduct two years later. Hayes simply replied that’s the way it is: the same people were on the board at both times, and the regents did their best to remain objective. Churchill must be accountable for his actions.

Effective Use of Video Depositions in the Courtroom:

Mr. Lane has become quite adept at using technology in the courtroom. He employed the technique of playing clips from a video deposition to impeach the witness on several points:

1) Hayes stated in her deposition that the “only thing out there” at the time of the 2/3/05 meeting when the regents voted to investigate was Churchill’s 9/11 essay, but on the stand today she stated there were other yet to be proven allegations before the regents at the time of the vote.

2) Lane asked if Hayes and the regents were interested in what kind of faculty member Churchill was and the kinds of things he had said generally, and was that the reason for the generalized investigation. Hayes said no, the reason for the general nature of the investigation were the allegation of academic misconduct. Lane then played her video deposition, in which she stated almost verbatim that the regents were in fact interested in what kind of faculty member Churchill was and the kinds of things he had said generally. On the stand, Hayes then agreed that these were her words in the deposition.

3) The Privileges & Tenure Committee (PTC) voted 3-2 for an action other than termination, but Hayes voted to terminate Churchill. Mr. Lane asked the main reason she voted to fire him, was it because he didn’t show enough remorse? Hayes said no, that wasn’t the reason. Lane then showed a clip of her video deposition in which she stated she felt he should be terminated rather than just suspended because, as President Brown said, Churchill felt no remorse for his research misconduct, and this was unacceptable. Lane again pointed out the inconsistency, and Hayes admitted on the stand that she voted to fire Churchill for this research misconduct, and she misspoke on the deposition.

Not only was playing clips of the video deposition useful in substantively impeaching witnesses, it clearly had an even greater impact on the jury than other uses of technology in the courtroom, such as projecting written statements, transcripts of depositions, or other exhibits. There was a visible impact on several jurors each time a video clip of the witness that was inconsistent with his or her live testimony was shown. Seeing the face, expressions, and body language of witnesses, as well as hearing their tone of voice, hesitations, and demeanor generally is obviously very important. With the video deposition, the impact is almost as great as with live testimony, so the previous statements from the deposition are easy to give just as much weight. Mr. Lane’s method of using the witness’s own words from the deposition in his question, getting a contrary answer in open court, and then using both a visual and auditory recording of the witness for impeachment is extremely effective. It makes a more memorable experience for the jury, and it quickly calls to mind the question of why the story has changed; in some cases, it may be hard for the jury to believe the live testimony wasn’t coached.

Redirect by O’Rourke:

Mr. O’Rourke established that by law, the regents are the only people who could make the decision on Churchill’s termination, and therefore, Hayes had a serious legal obligation in the matter, approached the question seriously and fairly, and had no desire to pay Churchill back for his 9/11 comments.

CU Protecting Churchill’s Free Speech:

O’Rourke then went through a lengthy laundry list of complaints from the public about Churchill’s comments being anti-American. He enumerated one incendiary line from the 9/11 essay after another, asking Hayes only if she was hearing things like “America has earned” the 9/11 attacks, “patriotism is the last refuge of scoundrels,” and many others. After she had answered in the affirmative to each, O’Rourke asked if Hayes and the public, her constituents, were wondering why these inflammatory statements were protected speech, and she answered yes. O’Rourke reached the apex of his crescendo by asking why a public official had the right to say these things. Hayes confirmed that the university did say Churchill’s essay was protected speech and “stood up for Churchill’s First Amendment rights.” Hayes agreed one of the important questions encompassed in the purpose of the investigation was how can somebody say this when they’re a public employee? Hayes wanted a thoughtful investigation, not a “rush to judgment.” O’Rourke did most of the talking, asking long questions that would obviously result in a short, affirmative answer:

Did you support an investigation that not only determined where the boundaries of academic freedom were but also had as its purpose the protection of academic freedom? Yes.

Did you want answers to what a public employee could do under the First Amendment and what he couldn’t do? Yes.

Did you have any doubt that what Churchill was doing could harm the university? “No doubt in my mind.”

Did you then protect his speech with full knowledge of this fact? Yes.

Re-cross by Lane:

Mr. Lane clarified several points, including that the regents all voted for a thorough investigation designed to find grounds for dismissal, if there were such grounds. He then addressed several controversial statements from the 9/11 essay itself, as Mr. O’Rourke had:

1) Is it anti-American for Churchill to criticize President Bush (41) and his statement (quoted in 9/11 essay) that “the world must learn what we say goes”? Hayes answered only “I think it’s protected speech.”

2) The essay points out the hypocrisy in Americans cheering the deaths of Arabs (“towel heads, camel jockeys, and sand niggers,” Lane quoted) while viewing as somehow elevated the deaths of Americans. Is it anti-American to call attention to this hypocrisy? Hayes disavowed any knowledge of her constituents’ concerns about any parts of the 9/11 essay besides the “little Eichmanns” statement.

3) Churchill wrote in the 9/11 essay that it was inaccurate to call the terrorists who knowingly and voluntarily flew to their own deaths by crashing into the trade towers and the Pentagon cowardly because this act must have taken some degree of courage. Lane asked if this statement was anti-American. Hayes doesn’t think it takes courage, it just takes insanity. Mr. Lane persevered: the essay suggests we contrast this act to the courage of the American officer in an air conditioned office launching cruise missiles on Arab civilians. Is this statement anti-American? Hayes stated she doesn’t agree with Churchill’s characterization, and Lane pointed out her First Amendment right to hold this opinion.

Lane then summed up by confirming that to Hayes knowledge, her constituents “never got into the nitty gritty of the 9/11 essay” other than the little Eichmanns statement, despite Mr. O’Rourke detailing all those other statements from the essay.

No questions from the jury; the witness was excused.

Witness for the Defense: Regent Peter Steinhauer

Mr. O’Rourke had Regent Pete Steinhauer introduce himself and give his background: he has deep ties to CU and the state of Colorado, graduated from CU in 1958, spent part of his career in the military, is still an associate professor of dentistry at the Fitzsimmons campus on a volunteer basis, and was elected to the Board of Regents in 1994 and 2000. He describes himself as a “very moderate” Republican, and affirmed that serving as a regent was not a basis for him to push a Republican agenda.

Steinhauer described the job of a regent as the general supervision of the university, the monies, approving certain hires, hiring and firing the president. His “only goal was to push the university forward.” As a regent, Steinhauer is concerned about the reputation of the university because it’s his university, he loves the place, and that’s why he decided to run for regent.

Steinhauer confirmed that he never told anyone the board would find a way to fire Churchill. He found Churchill’s statements in the 9/11 to be offensive, and to him they were anti-American. It also disturbed him that a professor, a chair of a department, would make those offensive statements. However, he stated that his personal opinions and his obligations as regent are two different things, and he put his obligations above his opinions. He never called for Churchill to be fired.

The regents’ resolution at the 2/3/05 meeting called Churchill’s statements “disgraceful.” Steinhauer agreed with this and thought it appropriate for the board to apologize to the public for what Churchill said because the statements were anti-American and offended those in the military and those who had loved ones killed in the 9/11 attacks.

Also part of this resolution was the regents saying they fully supported a thorough and fair investigation conducted by the Chancellor. Mr. O’Rourke asked what did you understand this to entail. Steinhauer said it included the 9/11 essay, but also other looming questions about whether Churchill’s statements supported terrorism and violence, and whether he was at the university when he made those statements or was acting as the university’s representative at the time. Steinhauer didn’t know the answers to these questions.

O’Rourke then asked if Steinhauer understood the Chancellor would be investigating speech that advocated violence and exceeded the bounds of protected expression. “Were you sending the Chancellor out on a mission to dig up a reason to fire Churchill?” No.

Did you understand the scope of the investigation to include all Churchill’s works for the purpose of determining if the 9/11 essay was protected by First Amendment? Yes.

Did you understand the investigation would encompass allegations of research misconduct? No.

Steinhauer said he accepted the conclusion drawn by the Chancellor in March 2005 that Churchill’s statements were protected speech.

The Question of Tenure:

As a regent were you committed to tenure and a system of shared governance? Yes, I believe in these systems as an associate professor of dentistry.

Would you have voted to authorize the Chancellor to “railroad Churchill out of the university”? No.

Steinhauer had previously stated that “tenure doesn’t give a person immunity from his actions.” O’Rourke clarified that Steinhauer was quoting a constituent who had contacted him, and his meaning in using the quote was that tenure doesn’t provide a loophole for a professor to not abide by university rules and regulations. Even a person with tenure must be accountable for his actions and words. Steinhauer expressly stated he was not threatening to remove Churchill’s tenure just because he didn’t like what he said about 9/11.

On Political Beliefs as Motivation for Investigation:

Steinhauer said it is not acceptable to investigate someone because you don’t like their political beliefs, but it is acceptable to investigate a public employee because he’s harming the institution.

Academic Freedom in the University Setting:

Steinhauer stated that academic freedom is very important in the university setting, and he wouldn’t undermine the principle to get rid of one professor. He sees that his obligation to the faculty as a whole is to protect academic freedom, which is more important than trying to achieve a political goal limited to one professor. He thinks the faculty should practice good scholarship and we (as regents) should support that, but if they don’t, we have the obligation to investigate that.

Steinhauer believes public employees have the right to express themselves so long as they don’t disrupt the operation of the workplace or impede the performance of the speaker’s duties, and in this case, he doesn’t think Churchill’s statements disrupted the business of the university. O’Rourke got Steinhauer to agree that Churchill’s statements probably impacted CU’s relationship with its donors, alumni, the state legislature, and the governor, all of which could have affected the institution financially.

O’Rourke closed with brief, simple questions:

Before the 2/3/05 regents’ meeting, had you decided to fire Churchill? No.

Did you agree to allow the investigation because it would provide you with a better understanding of your rights and responsibilities as a regent, as well as Churchill’s rights and responsibilities? Yes.

Cross by Lane:

Do you agree with Regent Hayes that the majority of the regents at the 2/3/05 meeting wanted discipline against Churchill? No.

Did you take Chancellor DiStefano’s words to mean that he was going to investigate all Churchill’s works to determine if there was a reason to fire him? Yes.

Impeaching the Witness With His Video Deposition:

1) Mr. Lane asked if there is something wrong with launching an investigation against someone just because you disagree with their political beliefs. Steinhauer’s answer in court today was that there’s only something wrong with launching the investigation if there’s no reason to believe the statements have harmed the university; if there is reason to believe this, even if the investigation is based on their political beliefs, then it is acceptable to investigate.

From the video deposition: Steinhauer said no, there’s nothing wrong with the investigation based on someone’s political beliefs. Lane called out the fact that there was no qualification to the answer in the deposition.

2) Lane asked if it was fair to say that Steinhauer voted along with his fellow regents unanimously to launch a full-blown investigation based on the fact that he disagreed with Churchill’s political beliefs. (O’Rourke objected because the witness can’t testify as to the other regents’ reasons: objection sustained.) Lane rephrased the question: did you vote to authorize the investigation because of Churchill’s political beliefs? No. But there wasn’t anything else “on the table” on 2/3/05 other than the 9/11 essay, was there? Not on paper, but we had heard other things about his speech promoting violence and maybe terrorism.

From the video deposition: Steinhauer said the only thing he knew about Churchill was the 9/11 essay and its inflammatory nature; he didn’t know of any other allegations at the time he voted to authorize the investigation. He agreed that the 9/11 essay sparked the whole investigation. Lane pointed out that Steinhauer didn’t say one word during the deposition about anything besides the 9/11 essay that inspired him to vote for the investigation. Lane then asked Steinhauer in court today which answer was the truth. Steinhauer replied “both.” This caused a stir amongst some of the jurors.

3) Lane asked in court: isn’t it true that you believed Churchill was bringing CU down, and you voted for the investigation to see if there was anything out there to give grounds for dismissal? No.

From the video deposition: Steinhauer said almost verbatim that Churchill was bringing CU down and that he voted for the investigation to see if there was “anything out there” to give them grounds for dismissal.

Steinhauer’s live testimony: we launched the investigation to determine if the speech was protected and to determine if Churchill had overstepped the limits of academic freedom. Lane again pointed out the inconsistency and rolled the video deposition. Lane wrung an admission from Steinhauer that he was sworn to tell the truth and told the truth on the video deposition. There was again a visible reaction from several of the jurors, possibly indicating that the witness has lost credibility by changing his story on several points.

The Poster Boy for Abolishing Tenure:

Mr. Lane then asked for the meaning of Steinhauer’s previous statement that “Churchill is the poster boy for abolishing tenure.” Did you mean tenure should be abolished if it allows Churchill to teach at CU? Steinhauer doesn’t believe in abolishing tenure, but Churchill is a good example of an argument to do so made by members of the state legislature (not the governor or members of the U.S. Congress). Lane then asked if throwing Churchill out of CU would be a way to appease the public and avoid the legislature abolishing tenure in general. Steinhauer replied no, he believes in this state the regents are elected and don’t have to abolish tenure based on what the governor and state legislature says. He then admitted he doesn’t know exactly what the law is on this point.

Lane then asked if his tenure was the only thing that prevented Churchill from being fired on 2/3/05. Steinhauer opined that firing Churchill then would have been “the easy thing to do,” but that tenure was not the only reason Churchill was not immediately terminated on that date. He said the regents were waiting on the results of the Chancellor’s investigation.

Re-direct by O’Rourke:

If the regents were bowing to pressure from the state legislature and the governor, would you have fired Churchill? No.

Was this in your mind a legitimate investigation to find out whether you had a right to discipline Churchill? Yes.

Did Mr. Lane ask in the deposition about whether you were receiving complaints about Churchill besides the statements in the 9/11 essay? I don’t recall him asking that.

As of 2/3/05, had you had time to go through all the e-mails and phone calls all the regents had received to find out what Churchill had said and what people were angry about? Not all of them, no.

Does tenure exist to protect academic honesty? Yes. Does it serve to protect academic integrity? Yes. Should someone who lacks academic honesty and integrity, that is someone who engages in unethical academic conduct, be able to say “can’t touch me I have tenure”? No.

Re-cross by Lane:

Lane returned to the transcript of Steinhauer’s deposition so that no one thinks he’s taking things out of context:

I think with tenure there are responsibilities. Tenure doesn’t give a person impunity from his actions.

Lane asked what actions Steinhauer was referring to: he can’t recall.

Lane reiterated his question of motivation: do you see anything wrong with launching an investigation against someone based on their political viewpoints? No.

No questions from the jury; witness excused.

Witness for Defense: Regent Cindy Carlisle

Regent Carlisle was elected as a regent in 2002 on a platform of reform for the university to be more transparent in its dealings with local government and internal issues of accountability. She also wanted more diverse students to be able to attend CU. She describes herself as a liberal Democrat and states she was interested in ethnic studies both as an undergrad student and as a regent. She met Churchill when he was chair of the ethnic studies department to discuss the department’s funding issues. She asked then provost DiStefano about the funding issues for that department; she felt he absolutely supported the ethnic studies department, as evidenced by his support of funding in a time when money was short at CU.

She understands that Churchill’s statements were hurting the university.

She voted for the resolution to authorize the Chancellor’s investigation. She understood they were authorizing the Chancellor to look into the 9/11 essay and Churchill’s other works to see whether the 9/11 essay was protected speech.

She did not understand the Chancellor to be trying to manufacture grounds for dismissal, and she doesn’t think he would do that because she knows him to hold the best interests of the university at heart. She never heard him say anything like “we need to get Churchill out of here” and would be “totally surprised” if she did.

She did not think Churchill should be immunized from the normal standards of scholarship because of his controversial speech. She believes the allegations of academic misconduct were raised separately from issues of protected speech.

She was the only regent who voted against Churchill’s termination. She voted that way based on the P&T Committee's majority position that said he should not be terminated but only demoted and suspended. She believes the university is a long-lived institution in which the “students are the heart of the institution; the faculty is the soul.” She feels it’s important for the faculty to have control of their own—they have the scholarship, it’s their profession, they’re the ones who should make the decision on what would happen to Churchill.

She does understand the ultimate decision of whether to terminate lies with the regents, and that the other regents held a different position from hers. She still based her own position on the faculty recommendations.

She believes that Churchill was given a fair chance to state his case and was not railroaded.

She accepted the P&T Committee's finding on Churchill’s research misconduct. The university’s credibility to teach students or disseminate research depends on academic integrity, and so CU could not tolerate research misconduct.

She would not have sent the Chancellor on a witch hunt, and if she thought that was happening, she would have protested very loudly.

Cross by Lane:

Regent Carlisle read the reports by the Investigative (Wesson) Committee, Standing Committee on Research Misconduct, and the Privilege and Tenure Committee (P&T Committee). She does not hold herself out as an expert on any of the substantive issues in Churchill’s work (e.g., the spread of smallpox amongst Native Americans in the 1800’s) and relied on the work of others.

Mr. Lane then fired off a long string of short-and-to-the-point questions:

Do you agree it was the 9/11 essay that sparked the investigation? Yes.

Do you believe the 9/11 essay was protected political speech? Yes, it’s protected to a limit. Carlisle believed on 2/3/05 that the 9/11 essay was protected, but she did not know that absolutely because she’s not a legal scholar.

Do you believe that an elected official should launch an inquiry into every word ever written or spoken by someone because the elected official does not agree with the speaker’s political views? No.

As of 2/3/05, you believed the only thing on the table was the 9/11 essay, and that caused the Chancellor to launch the investigation and for you to vote to authorize this investigation? Yes.

And the investigation opened up Churchill’s entire body of work to examination? Carlisle understood Churchill’s body of work was to be examined in light of the 9/11 essay.

This investigation was to go far beyond determining whether the 9/11 essay was protected speech? It looked like it was headed that way, yes.

And you interpreted that to mean his whole body of work was to be examined? Yes.

Carlisle testified that it was yet to be determined at the 2/3/05 meeting that the 9/11 essay was political speech. But in her opinion, it was political speech (a political position on the 9/11 attacks). The investigation was to determine what Churchill’s rights were and whether or not this exceeded the bounds of political speech that a public employee is afforded.

Would this be a good reason to have a First Amendment legal scholar or lawyer look at the 9/11 essay itself to determine if it was protected speech? I wish it had been that easy. The meeting came about to determine the rights and bounds of political speech. Lane pointed out that no one at the meeting talked about rights and bounds.

So if you wanted to know if the 9/11 essay was protected, wouldn’t the rational approach be to limit the investigation to the scope of that document? It would be speculation for me to say whether or not at that time that would have been a satisfactory approach. How does examining all Churchill’s works tell you whether the 9/11 essay is protected speech? Carlisle replied that free speech is limited, for example speech inciting violence is not protected. We had to look at other works to determine the bounds of Churchill’s speech and to decide whether or not those other works exceeded the bounds of protected speech by inciting violence. It was found that they did not and therefore were protected speech.

The allegations of research misconduct surfaced after the finding that the 9/11 essay was protected speech and, per the rules of the university, then had to be investigated.

Lane then cited an article that ran in the Denver Post on 1/31/05 (six days after the media explosion on the 9/11 essay). The article quoted Carlisle as saying “something should be done about Churchill. I’m appalled by his comments.” Carlisle testified that she did say that, but it was taken out of context. Lane asked how these words could be taken out of context, if Carlisle meant to say Churchill should be promoted and given a big raise. She meant something must be done about the situation, but she had nothing against Churchill. She says she probably meant the meeting when she said something had to be done. She did use the language in the quote and thought Churchill’s statements were “intolerably heartless.”

Lane then asked if Carlisle agreed there was “no significant disruption of any kind” in the university’s operations. Carlisle agreed there was significant disruption with the administration, but not in terms of classes going on. Everyone was upset across the board. Lane got Carlisle to admit that being upset does not consitute disruption.  Lane pressed Carlisle to name one thing that should’ve happened but didn’t because of Churchill from an administrative perspective? Carlisle stated the regent meeting where this issue was discussed had to be shut down before it could be concluded. Lane contested this, showing that the meeting on 2/3/05 was held to enable the Chancellor to inform the regents of his plan of action, and to allow the regents to vote on the resolution to implement that plan; both of these events took place before the meeting broke up. Carlisle countered that President Hoffman was not able to speak on the importance of academic freedom to the institution as planned during that meeting because it had to be shut down due to the number of hecklers.

Lane asked if the purpose of the investigation and Carlisle’s purpose in voting for the investigation was to find grounds for dismissal. “Absolutely not.” Carlisle said she can’t speak for DiStefano, but to her thinking, he would not do that. But Lane returned to DiStefano’s comments to the regents, in which DiStefano said the purpose of the investigation was to find grounds to terminate Churchill. Carlisle agreed that is what the express comments stated.  Lane then asked if he was wrong in his reading of the stated purpose of the investigation, and Carlisle agreed he was with no further elaboration.

Re-direct by O’Rourke:

Wasn’t the purpose of the investigation to determine if, not how, Churchill had overstepped his bounds as a public employee engaging in protected speech? Yes.

Do you think it’s important as a regent to be able to answer your constituents that you’ve conducted the appropriate investigation into the speech that so outraged the public? Yes.

Regarding Public Employees and Protected Speech:

Looking at disruption caused by Churchill’s speech and how much impact it will have on the university, is it appropriate for the Chancellor to step back and look at the effects on the campus over the period of a month? Yes.

Carlisle clarified that her statement “we are bound by the law” meant the regents would not be hasty or bow to outside pressure in determining Churchill’s rights and whether his speech was protected by the First Amendment. She stressed the importance of fundamental rights of due process and first amendment protections.

Re-cross by Lane:

Carlisle agreed that by voting for the Regents’ Resolution at the 2/3/05 meeting, which stated that the board had been advised by the Chancellor that he will initiate the investigation to determine if Churchill should be terminated, she adopted every word of it. However, though she voted for the resolution and testified she has read it, she stated that she is surprised to see the language regarding Churchill’s possible termination. Lane asked if her surprise was due to the fact that the language makes the investigation look like a witch hunt. Carlisle answered only that “it doesn’t look good.”

How to Fire a Tenured Professor:

If you had determined Churchill’s speech was protected and there were no allegations of academic misconduct, would Churchill have been fired? No.

Do you agree the only way to get rid of a tenured professor is if you can find some way around the tenure that protects him? If someone were set on getting rid of him and couldn’t based on his protected speech, they’d have to find academic misconduct or a felony conviction or some other over the top thing to fire him? Carlisle disagreed; the regents have laws and processes for dismissal of a tenured professor, and they are long and drawn out. If the research misconduct had not been there or had not been as serious as it was, Churchill would still be at CU.

Lane then asked if research misconduct is protected by tenure. No.

So if someone is on a witch hunt for Churchill and his speech is protected by the First Amendment, could that someone trump up charges of academic misconduct to get rid of him? Would you agree this was the only avenue open to CU to fire Churchill after his 9/11 essay was determined to be protected speech? Carlisle disagreed with Lane’s whole premise because she says CU did not engage in a witch hunt. It’s her position that Churchill is guilty as charged of academic misconduct. He committed plagiarism, falsification, and fabrication.

Do you understand Churchill’s position is that he is not guilty of academic misconduct? Yes, I understand that’s why we’re here.

Do you believe it’s simply a coincidence that DiStefano investigated all Churchill’s works to determine if grounds for dismissal existed and the report came back with allegations of academic misconduct? Carlisle answered she thinks the 9/11 essay brought up allegations against Churchill that hadn’t been brought forward in any meaningful way before, so it wasn’t just the 9/11 essay but also the existence of research misconduct in Churchill’s work that prompted the allegations. She did not give a direct answer on whether she thinks it was a coincidence.

No jury questions; the witness was excused.

Witness for Defense: Jerry Rutledge

Mr. Rutledge was a CU regent from 1995-2007 for District 5 (El Paso County and other parts of Southern Colorado). In 2005, he was chair of the board of regents.

Mr. O’Rourke conducted a concise, straightforward examination. He began by asking what kinds of sentiments were expressed to Rutledge by his constituents about Churchill. “Mostly outrage.” He heard some constituents say they would no longer support the university because of Churchill’s statements. He also heard the governor or state legislature might take action to not support the university.

O’Rourke then asked the purpose of the regents’ meeting on 2/3/05. Rutledge said the purpose was to determine what the regents could do, to review Churchill and determine what his rights and the rights of the university and Churchill were, and to consider Churchill’s recently publicized comments.

As of this meeting, had you had time to process through what all the e-mails and phone calls to regents were saying? Not all of them, all the regents had hundreds of them, I looked at mine.

Were your constituents asking things like how can a public institution support someone who incites violence or terrorism? Yes.

Were you concerned as a public official with getting a handle on what Churchill had said and how it was affecting the public? Yes.

Former CU President Betsy Hoffman testified you were very upset about Churchill’s comments. Is this accurate? Did you think it was causing harm to CU? Yes.

Did you think CU should sit by without responding to the nationwide outrage? No.

Did you think it was appropriate for the university to apologize for Churchill’s comments? Yes.

Do you agree that Churchill’s comments were disgraceful? Yes.

Did you command Hoffman to fire Churchill at any time? No. No regent can do that anyway.

If there was nothing else out there (First Amendment, academic freedom, tenure) would you have been in favor of firing Churchill? Sure.

As a regent, irrespective of your personal feelings, did you recognize you needed to follow the law of Colorado and of the regents? “Absolutely.”

Would you ignore your legal obligations to push a personal vendetta? No. Would you try to circumvent legal restrictions in this context? No.

Did you want the investigation to be fair? Yes. Had you decided on what the outcome of the investigation should be in advance? No.

Would you have accepted the conclusion that there was nothing the university could do about Churchill’s statements if that were the outcome? Yes.

Rutledge testified that he understood the Chancellor was going to conduct a thorough review to determine the rights of the university and of Churchill.

He stated it was normal for the regents to ask the Chancellor to investigate what was happening on campus. He understood that if there was to be any disciplinary action against Churchill, it would have to be initiated by the Chancellor, and he would want the Chancellor to be involved in that decision-making process.

Mr. O’Rourke concluded his direct examination with only two minutes left to five. Court will resume tomorrow morning with cross examination by plaintiff’s counsel.