It is ironic the committee that investigated professor Ward Churchill cites the U.S. Supreme Court's landmark 1964 First Amendment ruling in New York Times Co. v. Sullivan to justify an investigation that was clearly initiated in response to Churchill's exercise of his First and 14th Amendment right to free speech.
The Sullivan ruling affirmed the right of persons to criticize public figures without fear of civil libel litigation. Is there a back-door clause in Sullivan or a related legal interpretation that enables state agencies to take action against an individual, whose exercise of speech triggers that action, ostensibly on grounds unrelated the exercise of free speech?
Further, the claim made by the committee that Churchill's situation is analogous to that of Lani Guinier and Robert Bork is inaccurate on its face. In the cases of Guinier and Bork, both judicial candidates were denied a promotion, by way of a legally defined confirmation process. Examination of a political nominee's career and writings is an accepted part of judicial confirmations.
Unlike the Guinier and Bork cases, the purpose of the Churchill investigation was not to approve a nomination to higher office but to determine whether his academic career should be terminated. The investigation was initiated, not with Churchill's consent, as in the cases of Guinier and Bork, but in contravention of the laws of the CU Board of Regents to satisfy demands by some state political leaders and some in the media to punish Churchill for his 9/11 essay.
To reiterate: the investigation was initiated in reaction to Churchill's exercise of his right to speak without fear of federal or state government sanctions and not because long-standing allegations of academic misconduct had suddenly gained traction. A hostile, politically motivated and arguably unlawful official investigation potentially damaging to a person's career is in no way comparable to a lawful, confirmation process in which subjects voluntarily participate.
Further, the committee dismisses its own "disquiet" over the questionable timing and political motives associated with authorization of the investigation. Yet, despite these misgivings, the committee argues that the investigation of Churchill was at that time a reality that must therefore be carried through. Apparently, according to the committee, a dubious action once initiated should not be terminated, but instead proceed to its logical conclusion.
It likewise seems the logical conclusion of the investigation would have to be "guilty as charged." After all, who would dare to exonerate Churchill once extraordinary rationalizations are employed to justify the investigation in the first place?
Aside from the problematic rationale used to justify the investigation, serious questions have been raised by Professor Robert K. Wilson, an expert on academic misconduct who has analyzed the report, and CU Professor Thomas Mayer, who has both analyzed the report and is familiar with Churchill's writings; particularly those in question. Both authors conclude charges of misconduct by Churchill are vastly overblown and seriously threaten academic freedom by casting a pall of fear upon those who would choose to write on controversial topics, either as academic researchers or private citizens. Please consider these sources of information as well as Churchill's response to the report in your deliberations.
Chancellor Phil DiStefano's notice of intent to dismiss Churchill is troublesome in light of the rationale employed to justify the investigation and in the manner the investigation was conducted. In essence, the chancellor acted, first by filing the charges, as prosecutor; and then by issuing the notice of intent to dismiss as sentencing judge. I find this whole process difficult to reconcile as having "adhered to the rules governing investigations of alleged research misconduct.
Ken Bonetti is an adviser at the University of Colorado.
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