DiStefano, the interim chancellor back in 2005, returned after having testified for a good portion of yesterday afternoon. Much of his discussion turned on the motivation for launching the initial investigation into Ward Churchill.
DiStefano promised the regents at the meeting held on Feb. 3 that he would investigate the matter, with the promise that all of Churchill's speeches and writings would be examined. The investigation, however, was designed, according the Distefano, to determine whether his speech was covered by the First Amendment. That required a determination, among other things, of whether the speech was designed to incite violence or was caused a "disruption" to the University's activities. For that, University officials learned about and apparently relied upon Jeffries v. Harleston, 52 F.3d 9 (2nd Cir. 1995).
Much of the testimony therefore turned on whether a “disruption” had occurred once the essay surfaced. As any administrator can imagine (I was the associate dean for four years at the University of Denver Sturm College of Law), the resulting outcry no doubt generated a nightmare for CU administrators, with the University besieged by angry parents and alumni, pilloried by Fox News, and hounded by the local media.
Only a small flavor of that emerged, with the mostly monotone and unassertive tone of DiStefano never really capturing the likely maelstrom. David Lane did a good job establishing that the “disruption” never resulted in the cancellation of any class or the need for any additional police on campus, that the “disruption” largely consisted of an increase (albeit a large one) in the number of phone calls and emails, something that at times sounded almost banal. Indeed, at one point DiStefano insisted that it was more than that, that for two weeks he had to devote considerable time to answering the inquiries. That as a summation of the “disruption” was hardly compelling enough to justify limits on free speech. Ironically, some of the more descriptive language came from Lane himself, who at one point described the crisis as a “nuclear blast.”
In other words, the reasons for starting the investigation seemed weak. Indeed, one wonders whether the investigation was designed to buy time and let things cool down, something that might have in other circumstances, actually benefited Churchill. But the case was not made that the University of Colorado needed the time to figure out whether Churchill’s speech was really unprotected.
But there was an even larger problem with the testimony. Whatever problems were caused by the surfacing of the 9/11 essay, it was a relatively straightforward legal issue to determine whether it had caused a sufficient disruption to impose sanctions. It is hard to understand how an investigation into the remainder of his 4000 pages of writing would in any way have helped in this determination. Indeed, combing through the remaining body of work was not likely to calm matters but more likely to further inflame the situation and result in an even greater disruption.