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Excitement on the Fifth Morning (March 13): Move for Mistrial

Not a great morning for the Plaintiff. Half the morning was spent in challenging, and limiting, the expert testimony of Professor Derrick Bell, a noted expert in civil rights law and “grandfather” of the "Critical Race Theory."


Professor Bell earned his law degree from the University of Pittsburg in 1957, then worked in the Department of Justice’s new division of civil rights. After being told that his membership in the NAACP was a conflict of interest in working for the DOJ, he resigned and worked as Executive Director for the NAACP. He said that one day Thurgood Marshall came through the office and said, “What is a lawyer doing in a non-lawyer job?” At which point he transferred to the legal defense division of the NAACP. He left to work for the Department of (now) Health, Education and Welfare, working on assuring that schools and hospitals were not discriminating in violation of federal rules. Then came a stint at University of Southern California law school before arriving at Harvard Law School where he taught from 1969 to 1980. He was Dean of the Oregon Law School for five years then back to Harvard until 1991 where he took a “visiting faculty” position in lieu of tenure because “I was offered a tenured position but decided to be a year-to-year teacher so I wouldn’t have to endure faculty meetings.”


Professor Bell was called by Lane to give testimony as an expert that a) he was familiar with Professor Churchill’s work (indeed, Churchill is quoted in Bell’s legal casebook “Race, Racism in Law”) and it didn’t violate any academic standards; b) even if everything the disciplinary committee accused Churchill of was true, it was trivial and such things are routinely ignored by university administration depending on if they like the professor nor not; c) that investigations into tenured faculty academic misconduct are extremely rare, almost unheard of; d) that there is an historic pattern in the U.S. of First Amendment rights being trampled during times of war or national crisis, and academic institutions are often the focus of challenge to these rights; e) and that the judgment of the disciplinary committee was wrong and was based on this institutionalized pattern of hysterical reaction to dissenting voices in times of national crisis.


Mr. O’Rourke wasn’t going to let that happen. With the jury not present, O’Rourke challenged the admissibility of the testimony on the basis that it presented conclusions of fact that were reserved for the jury to decide, and seemed to be offering conclusions of law. Lane eventually asked Professor Bell to talk about the history of the First Amendment and render an opinion if a) Churchill was guilty of the academic misbehavior he is accused of, and b) whether, even if he were guilty, whether termination was an appropriate remedy for such small things from his experience and knowledge both as a faculty member and prior dean of a law school. Objection was sustained on the basis that the witness would be testifying whether Churchill should or should not have been fired, which is for the jury to decide.


O’Rourke questioned Professor Bell about whether he had ever been on a disciplinary hearing committee; he had not, adding “since they are so rare.” Professor Bell’s response to O’Rourke’s question about how he could know how these committees operate was, “I haven’t jumped off a bridge either, but I know what happens to you if you do, and I know how unusual it is to have those committees.”


Lane argued (several times) that what he wanted this legal expert to do was testify as to appropriate standards of behavior, much as a doctor would be an expert witness as to standard medical practice in a malpractice suit. O’Rourke continued his objection to Professor Bell being certified as a law expert, because that implies that what he says is what the law says should be done, and as an expert on administrative disciplinary procedure, on the basis that Bell has never actually been on such a committee. Lane then argued that expert testimony regarding an institutional habit (in this case, the general habit of institutions clamping down on First Amendment rights in times of war) was permissible per Colorado Rule of Evidence 406 ("Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.")  O'Rourke rightly noted that the Rule relates to a specific organization's habit, not the habit of a general class of institutions, and the Judge agreed.


There was no defense objection to certification of Professor Bell as an expert on Critical Race Theory. However, reacting to the defense objection to the use of the theory to explain Churchill's conduct, Judge Naves sustained the objection on the basis that Professor Bell’s testimony on the inconsequentiality of Churchill’s scholarship infractions was conclusory, and testimony on issues of generalized institutional reaction in times of war was irrelevant to the specific issues in this case.


Lane moved for a mistrial, which was denied.


The jury returned and Professor Bell returned. After a recitation of Professor Bell’s credentials (including his description of law review articles as “usually unreadable, filled with footnotes and used to quote in cases”), the jury heard a somewhat rambling description of Critical Race Theory. This theory, which is more an approach to academic thinking, relates to the need to use non-specific “storytelling” to describe the context of historical events and legal developments in a way that makes a student understand the underlying social, political and economic tensions leading to various events.   


On cross examination, O’Rourke asked Bell whether Critical Race Theory gives someone the right to make things up. Bell replied by describing a story he made up to illustrate a point about racism, which was eventually made into a movie. Lane then clarified by asking that if you represent something to be a true fact and it isn’t, that would be wrong? Yes, Bell agreed. Questioned by Lane about whether he thought plagiarism was wrong, Professor Bell noted that scholars such as Ovaltree, Tribe and Doris Kearns Goodwin all found that their research staffs had inadvertently written a paragraph in similar manner to someone else. O’Rourke followed up to ask “And isn’t it true that all three of these people acknowledged their plagiarism, apologized and sought to make it right?” Yes, Bell replied. The witness was excused.


The last hour of the morning was spent working with the technical difficulties of, and eventually viewing, the first part of video testimony of CU President Betsy Hoffman describing her interactions with Congressman Bob Beauprez (friendly but disagreed with her stance to not fire Churchill immediately), Governor Owens (not friendly, and threatened to “unleash my plan”) if she would not fire Churchill immediately, Chancellor DiStefano and various Regents. Dr. Hoffman testified that during the time of public kerfuffle over the publication of Church’s 9/11 essay, while she and her office were quite occupied with various reactions, the university nevertheless continued to operate successfully. She did not view the 9/11 essay as especially disruptive to warrant deviation from the normal academic freedom afforded professors to search and state the truth. The video was to continue in the afternoon session.


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