Kick Him, Honey » Michael Roberts

Ward Churchill and the death of academic freedom

Ben — Thu, 09 Jul 2009 11:51:07 +0000

In reality, such an outcome was predestined. Blaming American foreign policy for spawning acts of terrorism automatically made Churchill a pariah in the eyes of the legal system, just as Malcolm X’s “chickens coming home to roost” statement in the wake of the John F. Kennedy assassination made him an outcast during the early 1960s.

Update: DU’s law school blog, The Race to the Bottom, has three more posts about the decision.

John Holcomb on the Issue of Immunity

Offering this explanation for Judge Naves’ strange and — in my opinion — incredibly unethical decision to allow the trial to proceed all the way through before ruling on the quasi-judicial immunity issue:

Could it be that Judge Naves was shielding his ruling on the remedy by holding off ruling on quasi-judicial immunity until the trial was over? Maybe he was actually being crafty. If he had ruled on a motion for summary judgment earlier and stopped the trial at that point, then that ruling would have been subject to immediate appeal. Had he then been reversed, the trial itself would start at a much later time, leaving everything in limbo and perhaps taking Naves out of case on remand. This way, he accomplished three things: (1) expedited resolution of the issues, arguably important for the public interest; (2) exercised his own judicial discretion (or perhaps activism) to render a remedy he thought just, even if he is reversed on the severable immunity issue and (3) kept himself in the case, rather than risk it going to some other judge on remand.

Looking Closer at Judge Naves’ Order

Which primarily explains in more detail why Judge Naves waited until after the trial to rule on the quasi-judicial immunity issue:

One of the questions that must come to a thinking person’s mind is why would Judge Naves allow such an extensive trial to happen only to nullify it on what is essentially a legal technicality? The answer is that CU attorney Patrick O’Rourke did not raise this defense until after the trial on the basis that the specific elements would have to be proven in a trial-like setting anyway. If the jury had ruled for CU, there would be no reason to have raised the defense; since the jury ruled for Churchill on the First Amendment claim, O’Rourke could raise it as a post-trial motion.

Pat O’Rourke’s Clever Trap

Which explains Pat O’Rourke’s cleverness in essentially losing the jury trial, but winning through the quasi-judicial immunity ruling:

CU lawyer Pat O’Rourke has often been maligned throughout this trial. He wasn’t as dramatic or amusing as David Lane; his closing arguments were boring; his witnesses were impeached so often court observers began to cringe when they testified. But the startling outcome of Judge Naves’ Order is the legal version of the Tortoise and the Hare, or more specifically—the story of the Clever Trap.

Sleazy, yep. Cheap, sure. Effective, absolutely.

Update II: Michael Roberts writes about CU’s attempt to pry out-of-pocket legal fees out of Ward Churchill in Westword:

Hard to believe that CU really expects to get dime one of this amount — and even if Churchill is ultimately forced to pay, the sum will probably be dwarfed by the legal costs incurred while trying to pry it out of him. So why bother? Well, Churchill has inflicted loads of lousy publicity on the institution for several years now — at least from CU’s perspective. And the bad PR continues on HBO, which is airing Shouting Fire: Stories From the Edge of Free Speech, a documentary that makes the folks lobbying for Churchill’s ouster look downright McCarthyite. This is one way for CU to return the favor.

Petty, yep. Vindictive to the point of stupidity, sure. Just what we expect from CU, absolutely.

Update III: As CU winds up their spin machine, it’s worth remembering that they didn’t win this case. They got off for the same reason the occasional rapist, murderer or child molester gets off even though they’re guilty as hell and the evidence proves it: a sleazy lawyer and a technicality.

Update IV: The appeal’s on the way. From the Denver Post:

“We would be saying, this is flat-out wrong. He is extending quasi-judicial immunity someplace where it has never been before,” Lane said.

Update V: Anthropologist Max Forte weighs in:

When I say that the freedom of academics takes a serious blow, it is because Judge Larry Naves — incidentally, a man who allegedly got accepted into university with the assistance of the father of Condoleeza Rice (source) — has decided, in very contradictory terms, that university administrators both represent faculty, and, are like judges and therefore benefit from immunity from prosecution from faculty (not just vacating the jury’s verdict, but the whole trial). Simply put, they are free to fire, presumably on any grounds, at any time. This also effectively puts an end to anything meaningful about tenure.

Update VI: There’s an interesting post on the National Review‘s site which, while noting the quasi-judicial immunity issue, takes far greater exception to the rest of Judge Naves’ ruling:

Even after vacating the jury’s verdict, the judge engages in what seems to be a superfluous discussion of Churchill’s request for reinstatement (after all, if the jury liability finding is vacated, there is no real basis for equitable relief). In this discussion, he misunderstands the role of nominal damages in constitutional cases, conflates damage awards with liability determinations, grants a staggering amount of discretion to university officials who terminate troublesome employees, and essentially uses Churchill’s protected speech as a pretext for justifying the university’s adverse actions. The message the judge sends to faculty is clear: Get along with your colleagues — or else.

Churchill ruling nowhere near the final resolution

Ben — Wed, 08 Jul 2009 12:28:53 +0000

Scott Robinson, legal analyst for the Denver Post, has an interesting piece in today’s paper clarifying the oddity of Naves’ decision that the CU regents are a quasi-judicial authority. Although his words are pretty measured, it’s clear that Robinson doesn’t think much of Naves’ ruling.

The ruling by Chief Denver District Judge Larry Naves that set aside the jury’s $1 verdict in ex-professor Ward Churchill’s civil rights wrongful-termination lawsuit sets the stage for the inevitable appeal, an appeal that presents complicated and difficult legal issues that could wind up in the U.S. Supreme Court.

Update: Kevin O’Brien, writing for the University of Denver’s legal blog, The Race to the Bottom, is just as stumped by Judge Naves’ decision as the Denver Post‘s legal analyst.

What is remarkable about the judge’s decision is that it adopted almost every argument proffered by CU’s legal briefs. Reading today’s trial decision felt like I was re-reading the CU briefs. For example, by not awarding even front pay in lieu of reinstatement, Judge Naves effectively blocked an award of attorney fees to Churchill on the basis that the $1 award represents a Pyhrric victory invalidating the award of attoreny fees under existing case law (in the event his quasi-judicial immunity ruling in favor of CU is overturned and the reinstatement and front-pay issues are no longer moot).

O’Brien also offers this, which I hadn’t even considered:

[I]t is clear today that Judge Naves’ ostensibly one-sided decision will raise the issue on whether he should have recused himself from hearing the case based upon the appearance of a conflict of interest since he is a CU law school alumnus.

That’s an interesting point to consider, although as O’Brien goes on to make clear, Naves’ alumni status alone does not constitute a “serious, objective risk of actual bias.” Anyway, The Race to the Bottom promises to “dissect” Naves’ ruling on its legal merits over the next few weeks, which should be required reading for anyone interested in the case.

Update II: Michael Roberts has a piece in for Westword (which kindly mentions me) and has this salient point to offer:

On the surface, this judgment makes little sense, since Naves could have come to this conclusion without even going through the motions of a trial.

Update III: The New York Times story also ends with a quote from Scott Robinson, noting the “extraordinary” nature of Naves’ ruling.

Update IV: There’s so much good stuff in The Race to the Bottom piece. Here’s another tidbit:

In effect, Judge Naves has, unless reversed on appeal, sanitized CU of the taint of the jury’s decision that CU terminated him not for research misconduct, but for expressing his first amendment rights in violation of the Constitution. Thus, not only is Churchill not entitled to the $1 jury award and the vindication the award represented, but his attorneys cannot seek reimbursement of their attorney fees conjectured to be over $1,000,000 since Churchill did not prevail in his Section 1983 first amendment claim. Most of this cost would never have been incurred by Churchill and his attorneys (or, for that matter, the jury’s time in sitting through a month long trial) had the issue of quasi-judicial immunity been determined before trial by Judge Naves through a motion for summary judgment that as a matter of law CU would prevail.

Note that last piece. As Michael Roberts pointed out above, essentially the whole trial was a charade. And a particularly vicious one as arranged by Naves, in that he seems to have let it continue solely to squander David Lane and Ward Churchill’s time and resources.

Update V: The Colorado Independent has a GREAT piece up on their site about Naves’ ruling, entitled “Judge rules against Churchill, grants CU Board odd absolutist powers”.

The jury decided that Churchill was in fact fired because talk radio hosts didn’t like what he wrote about the 9/11 attacks and because neither did GOP Gov. Bill Owens and neither did the CU Board of Regents — or at least that the Board didn’t think Churchill’s opinions were worth defending in the name of academic freedom and freedom of expression in general. Yesterday’s ruling suggests Judge Naves also places little value on Ward Churchill’s right to free expression, regurgitating in the ruling the defeated arguments of the state. And, not to be outdone, the Denver Post this morning jumps on board, regurgitating the regurgitations of the bench, reporting as fact in the second paragraph of its story the specious allegations of academic misconduct at the heart of the trial and that the state failed to substantiate for the jury.

Update VI: Democracy Now offers this in today’s show:

In Denver, a judge has denied former University of Colorado Professor Ward Churchill’s bid to return to his old job despite a jury’s finding he was wrongfully dismissed. Churchill sued the school after he was fired from a tenured position on charges of research misconduct. But Churchill maintains that the allegations were a pretext to remove him for his political beliefs. In April, a jury ruled in Churchill’s favor and ordered the school to pay his attorney fees. But on Tuesday, Chief Judge Larry Naves of Denver District Court said university officials are legally protected from Churchill’s bid to reverse his firing because they were acting as judicial officers. Churchill says he plans to appeal. His lawyer, David Lane said: “This is judicial activism in its worst form… a jury said Ward Churchill’s free speech was violated, and yet Judge Naves goes on for almost 50 pages, saying in so many words, ‘Too bad.’”

Update VII: Even the Wall Street Journal is noting that Judge Naves’ ruling “seems a little screwy”.

Update VIII: Marc Bousquet has piece on The Chronicle Review‘s site, elegantly entitled “Colorado Judge Mugs Churchill”. (It’s also cross-posted on one of my favorite literary sites, The Valve.)

The crowing by the University of Colorado administration after the latest twist in the Churchill case illustrates this claim pretty well. Provost Phil DiStefano seems to have huffed a few lines of Hogwarts Ambiguity Powder to keep a straight face while dubbing CU’s trampling on Churchill’s academic freedom, subversion of faculty process and transparent political thuggery “a victory for faculty governance.”

He also notes Naves’ status as a CU alum.

DiStefano couldn’t have gotten his broomstick off the ground, though, without the teamwork of loyal CU alum Judge Larry J. Naves. The latter waved his wand of Dumbledorean Complexity over the jury’s verdict in order to vacate it, claiming that upon further reflection—you know, after the jury came up with a verdict he didn’t like—he believed that the Colorado regents were immune from lawsuits!

This is getting more and more interesting.

Update IX: I’ve been looking everywhere for full audio, or even a transcript, of the press conference given yesterday by David Lane, Ward Churchill’s attorney. As far as I can tell, it’s not on the internet. You can, however, hear snippets of it on yesterday’s Caplis and Silverman show, here, starting at 35:15.

Update X: From Denver’s main anti-Churchill site, Pirateballerina:

We contacted CU defense attorney Patrick O’Rourke this morning via email and learned that he intends to bill Churchill for out-of-pocket legal expenses, such as deposition transcripts, out-of-state travel, and witness fees. “We haven’t totaled those yet,” O’Rourke told us, “but those expenses will probably be significant.”

Rampant corruption, contempt for the Constitution, judicial thuggery, and now highway robbery. Seems par for course for team CU/Naves.

Update XI: I wish I could say I’m surprised about CU’s intent to bill Ward Churchill, but I’m not. CU has made it clear all along that their intent has been to not only trample Ward Churchill’s civil rights, but to completely destroy him.

I know Ward well enough to know that that’s not possible, but also I know CU’s administration well enough to know that they’d love nothing more.

Update XII: Good God. Even the rightwing educational watchdog group ACTA thinks Judge Naves’ ruling is off the mark. (Via Michael Roberts at Westword.)

The judge’s decision? It gets some things right, but is also problematic. Yes, peer review is critical to shared governance, academic autonomy, and professional standards. Yes, to reinstate Churchill would send an awful message to students — that academic standards don’t matter. But is the authority of trustees in fact comparable to that of judges here, as the opinion says? I am not so sure.

That’s pretty rich, in that ACTA was responsible for a portion of the drummed-up political pressure brought to bear on the University of Colorado to fire Churchill.

Update XIII: CU’s intent bill to Ward Churchill for out-of-pocket expenses is now in the Denver Post:

The University of Colorado will bill Ward Churchill for more than $10,000 in out-of-pocket costs the school incurred while defending against his wrongful termination suit, the university’s lawyer said today.

Update XIV: And from the Boulder Daily Camera:

CU attorney Patrick O’Rourke said he plans to file for recovery of those costs — which include flying witnesses in and out of Colorado and creating deposition transcripts — over the next 15 days and said the amount would be in the “five figures” and likely just shy of $50,000.

This is just conjecture, but it doesn’t seem impossible to me that this could be an attempt by CU to blackmail Ward Churchill out of filing an appeal. Right? Play up the amount of money they’ll be billing him in the local media, and then follow it with a phone call letting him know that they’ll rip up the invoice if he’ll only agree not to appeal. Hell, given what we’ve seen from CU so far, a little extortion hardly seems farfetched.