the Race to the Bottom

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity.... Opening to “A Tale of Two Cities” by Charles Dickens.

In many respects, I wonder if CU’s legal counsel Patrick O’Rouke thought he lived through a Dickens’ “best of times, worst of times” moment last Friday afternoon, with his witness Professor Morley, the University of Colorado at Colorado Springs Communications full professor. With his characteristic precision, attention to details, and singular focus, O’Rouke elicited perhaps the most compelling and damaging testimony against Churchill from Professor Morley. But, near the end, Morley potentially undermined his credibility with the jury. But first, some background.

As a member of the Faculty Senate Privilege & Tenure Committee (P&T) “Panel Regarding Dismissal for Cause of Ward Churchill,” Professor Morley testified that the P&T committee is a CU “internal mechanism to resolve faculty grievances to avoid what we have here today; when you have large egos by faculty and administrators, conflicts arise and the P& T will hear those.” Professor Morley testimony was strategically important for CU since it not only comes at the end of the trial, but also since he was a member on the critical P&T Panel. P&T Panel was responsible for reviewing the Investigative Committee’s Findings, hearing more evidence, and deciding whether Churchill’s conduct fell below the standards for professional integrity by “clear and convincing evidence,” not the preponderance of evidence used by the Investigative Committee or required to be shown by Churchill or CU on the wrongful discharge claim.

Using this higher standard of “clear and convincing evidence,” Morley testified that the panel found the following allegations unproven: (1) that Churchill misrepresented the General Allotment Act of 1887; (2) that Churchill misrepresented the Indian Arts and Crafts Act of 1990; (3) that Churchill misrepresented Captain John smith and Smallpox in New England, 1614-1618; (4) that Churchill did not have a reasonable basis for his claim that smallpox was spread intentionally by the U.S. Army to Mandan Indians at Fort Clark in 1837, using infected blankets; and (5) that Churchill did not have a reasonable basis for his claim that the Army had stored rather than administered a smallpox vaccine distributed for the purpose of inoculating Indians. It is noteworthy that both the investigative committee (page 68) and the panel specifically found there was no fabrication (sources used still misrepresented), based upon oral and written history provided by Churchill, as to the allegation related to Churchill’s assertion that smallpox was spread intentionally by the U.S. Army to Mandan Indians. However, on the details of this overall assertion of U.S. Army intent (Army doctor told Indians to scatter, infected blankets located at an infirmary in St. Louis, and the death toll of 400,000 from small pox), the Panel found, by clear and convincing evidence, that Churchill did not have a reasonable basis for those claims.

Morley did say that he understood that Hank Brown did not agree with the Panel on those allegations that it did not find, by clear and convincing evidence, Churchill had engaged in research misconduct.

As David Lane had Cheyfitz, the Cornell director of the Indian Studies Program, review each allegation and persuasively address each in favor of Churchill, Patrick O’Rouke had Morley review each allegation as well in favor of CU. This post focuses on the three allegations that are perhaps the strongest allegations for CU since several of the others were not found to be research misconduct by the P&T standard of “clear and convincing.” Indeed, the Panel report stated that academic debate was a better forum for many of these allegations. Consequently, the following three allegations are probably the strongest for CU especially after Morley’s testimony:

1. That Churchill plagiarized, and in particular the Fay Cohen article
2. That Churchill ghost writing constituted research misconduct
3. That Churchill’s details on the Fort Clark blanket/smallpox claim were made without a reasonable basis

“The Best of Times”

Each allegation will be addressed in turn in.

1. That Churchill plagiarized, and in particular, the Fay Cohen article: While Churchill says that while he agrees that the article in question was plagiarized from the Cohen article, he did not do it. Churchill notes that while the article in question was listed in his internal annual report of teaching, scholarship and service that he signed, his assistant prepared it from a listing of the table of contents of a journal, two of which he wrote, the third was the plagiarized article that got accidentally listed in his annual report. According to Churchill, it never was listed on his CV or Curriculum Vitae, the official external listing of his scholarship.

However, stronger than any other testimony on Churchill’s denial of responsibility, Morley testified emphatically: “This plagiarized article is listed in his annual report of professional activity and he claimed he did not fill out the report. I have been doing annual reports of my professional activity for 26 years and I can’t imagine doing this-assigning this report to another.” I had exactly same thought as a professor at the University of Denver for 26 years until I realized that as I now have more of an administrator’s role in the department, I had started preparing the equivalent annual report of one of our department’s top scholars in order to keep him focused on publishing; I certainly asked the scholar to review the entries I made on his behalf. Nevertheless, Morley’s testimony could be viewed by the jury as smoking gun evidence of willful plagiarism and like ghostwriting discussed next, an allegation standing alone warranting dismissal.

2.  That Churchill ghostwriting constituted research misconduct: Morley testified that the ghostwriting that Churchill freely admits to writing for another author in his field and then citing that article in his writings is wrong for two reasons since it “is creating a scholarly record that really did not exist.” Explaining the two reasons, Morely testified: (1) that putting others on your work constitutes a fraud that other people share his point of view when he cites the work and giving the impression of broader support than Churchill really has; and (2) this practice constitutes a further fraud against employers (of Robbins and James who claimed authorship) because it was taking credit for scholarship that Robbins and James did not do. Morley then described how this “misattribution of authorship” was significant because Churchill is not taking responsibility for the findings articles he ghostwrote.

More importantly perhaps, was the strength of Morley’ conviction when he said: “This claim is enough by itself to warrant dismissal” of Ward Churchill. Granted Cheyfitz, Churchill’s most important witness on this point, said there was nothing wrong with ghostwriting and citing the work if the claiming author reviewed the work and consented to the writing which was implied by Robbin’s listing of the article on her CV. However, Morley’s significantly raised the stakes with this testimony. The investigative report said several allegations by themselves were insignificant, but were when viewed as a pattern of research misconduct (see page 99). Here, Morley is categorizing this allegation as fatal to Churchill even if the jury does not see an overall pattern of research misconduct. Consequently, it might be easier to gain unanimity for all juror members if they can agree to this freely admitted charge (or the Cohen plagiarism charge discussed previously).

  3. That Churchill’s details on the Fort Clark Army/blanket/smallpox claim were made without a reasonable basis: While Cheyfitz testified convincingly that there is a reasonable basis on these details, O’Rouke asked Morley the key question here: Does the fact that Churchill got the big theme right, is it a problem Churchill did not get a detail right; a problem for CU.” In essence, O’Rouke is asking since Churchill did have a reasonable basis based upon oral and written history that the Army may have intentionally infected Mandan Indians using blankets containing smallpox mean that it is okay if Churchill did not have a reasonable basis on the details (smallpox infirmary in St. Louis, Army surgeon told the Indians to scatter, the death toll was 400,000 Indians).

Morley testified rather convincingly that the details matter greatly to both CU from a scholarship integrity standpoint and to the advancement of knowledge generally. Morley stated: “You cannot make up details if you do not have the evidence.” All three erroneous Churchill details gives his big theme “Army intentional infected the Mandan tribe with infected blankets” more authenticity than it should if make up the details in support of this “big theme.”

“The Worst of Times”

Morley then defended CU's actions and said that the school must pursue academic misconduct in order to shield the integrity of the institution and correct the academic record. Consequently, Morley was concerned that some young man may "pick up an AR-15 in a rage one day and kill" because of Churchill's falsifications and fabrications regarding the intent of the US Army. On this statement, Bruce objected that it be stricken, but the judge allowed it. The jury certainly understood Morley’s point, but to volunteer such an extreme consequence attributable to groundless details (at least from CU’s perspective even if the big theme may be correct) might be viewed as harboring some bias against Churchill especially when considered with the next discussion of testimony.

On the bias issue of Professor Wesson as chair of the investigative committee, Bruce asked whether Morley thought Wesson was biased based upon her “Simpson” email and Morley replied that one should look at Wesson’s behavior, and if the behavior showed no bias, then not a problem. Bruce then asked then if a KKK member who hates blacks can avoid behaviors of bias, then that would be okay since he overcame the bias—“same thing?” Morley answered “Wesson overcame it.”

Under this rationale, the concern here is that a faculty member possessing bias in appearance only is somehow allowed to serve on disciplinary committees as long as the behavior indicates impartiality and fairness. Even the P&T Panel Report on page 21 stated that “With regard to Professor Wesson’s selection as Committee Chair, we agree that Professor Churchill should have been notified of the offending email.” This would have allowed Churchill or even Professor Rosse (head of the Standing Committee to appoint members to the Investigative Committee) to raise and review the bias issue before Wesson was appointed. However, similar to Morley’s perspective on bias, the report goes on to conclude that the evidence that Churchill was denied “due process” was “ambiguous” characterizing Wesson’s “conduct of the process as it actually unfolded as generally fair.”

Then after a few questions from O’Rouke on re-direct, the judge asked the jury members if they had any questions for the witness and it was another hard question for a CU witness. A two-part question was asked:

1. You said you have not had time to notify the university where Robbins is teaching, but if you are concerned about bad scholarship, then why not inform the university?

2. As a scholar wouldn’t you want that corrected as soon as possible?

Morley answered that this was a great question and said he was going to notify Robbins' university within a month. Bruce pointedly asked why it has been 22 months since the P&T report was finalized and Morley had not contacted the offending scholar's university. Sarcastically, Bruce asked several questions along this line, "Why couldn't you find the few minutes to contact the university during these 22 months when you were watching football games." Morley then responded that "Now I see the inconsistency, and now will correct it." The questions and answers raise at least the spectre of hypocrisy notwithstanding Morley’s admission of inconsistency and commitment to protect the academy by notifying the other university.