Day 5 (Friday, 13 March, 2009) in Ward Churchill’s case against the University of Colorado featured several key exchanges and testimonies that appeared to be critical to the trial, with two more weeks left to the trial.

For those unfamiliar with the story, Ward Churchill, a prominent American Indian activist and author, is a formerly tenured professor and Chair of Ethnic Studies University of Colorado. Ward Churchill is suing to get his job back, arguing that he was fired over an essay he wrote about the Sept. 11, 2001 attacks. The University counters that he was fired because of research misconduct (plagiarism, falsification, and fabrication). The following are some of the key documents in the court case:

• Amended Complaint, Churchill v. University of Colorado, 06 CV 11473, District Court of Denver, July 25, 2007
• Amended Answer, Churchill v. University of Colorado, 2006 CV 11473, D. District Court, Jan. 4, 2008
• Report of the Investigative Committee of the Standing Committee on Research Misconduct at the University of Colorado at Boulder Concerning Allegations of Academic Misconduct

Also see the documents on the Ward Churchill Solidarity Network, for more background.

Back to Day 5:

In the morning there was a move for mistrial by Ward Churchill’s attorney, David Land, which was denied, concerning limitations on the testimony of Professor Derrick Bell, a prominent civil rights lawyer and acknowledged as a leader in the development of “critical race theory.” Bell had been called by Churchill’s team to provide testimony to the following:

(a) That he, Derrick Bell, 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; and,

(e) 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.

Objections were raised by the University of Colorado team on the basis that Bell would be testifying on a matter that was for the jury to decide, and that his expert opinion as a lawyer might be misconstrued as a statement of what the law says is permissible or not. The objections were sustained, and the jury heard none of the above. Judge Naves would also not allow any testimony from Bell on the generalized institutional pattern of clamping down on free speech during times of “war” or “national crisis” — which is very unfortunate given that is almost the constant state in which the U.S. places itself.

Having been blocked on these fronts, Lane (Churchill’s attorney) moved for a mistrial, and was denied. The proceedings continued.

What the jury was allowed to hear was Derrick Bell’s description of critical race theory, and how it was permissible to make up stories in order to better illustrate a point so that unfamiliar students may understand it — saying that one of his stories was turned into a movie. Asked if he though plagiarism was wrong, Bell said it was, and also specified by name other researchers who had been found guilty of plagiarism and were let off with an apology.

The trial resumed in the afternoon, with the remainder of the video deposition of Dr. Betsy Hoffman, the President of the University of Colorado from September 2000 to July 2005. This testimony was especially charged, and will likely prove critical to Churchill’s case: the testimony comes from the highest ranking person in the University, who was repulsed by the political pressure exerted to fire Churchill, who said she would resign if Churchill was fired over his 9/11 essay, and who was eventually replaced by a right wing politician, Hank Brown, with ties to ACTA, an organization seeking to intellectually cleanse universities of any “liberal” or left wing dominance. Hoffman testified that she did in fact state at the time that the confluence of extreme coverage from Bill O’Reilly of Fox News, the machinations of David Horowitz (with his list of 101 worst/most dangerous professors in the U.S.), and the influence of ACTA, reminded her of the McCarthy era.

Regarding Churchill’s 9/11 essay, Hoffman understood the essay the same way that many other reasonable and lucid commentators outside of the U.S. understood it, and who offered similar interpretations:

Dr. Hoffman understood the essay to say that there are reasons, aside from hating freedom, why people may hate the U.S. Mr. Lane then questioned Dr. Hoffman on her understanding of the essay’s reference to those who worked in the twin towers as “little Eichmanns.” Dr. Hoffman responded she understood the reference characterized those people as technocrats of American imperialism, and that Mr. Churchill’s point in making this characterization was to show why the twin towers and the Pentagon were targeted on 9/11. Dr. Hoffman indicated that when she read the Churchill essay on 9/11, she believed that, though offensive, the essay was political speech protected by the First Amendment.(source)

Dr. Hoffman also included that some of the Regents of the University of Colorado told her that Churchill should have been fired for his 9/11 essay. In addition, Churchill’s attorney listed Churchill’s speeches and works that were specifically enumerated in the Chancellor’s report as originally the subject of investigation by the Standing Committee on Research Misconduct: the 9/11 essay, another magazine article by Mr. Churchill, an appearance on the Geraldo Rivera television show, and a lecture on who to send to conduct military actions.

While allegations of misconduct have to be investigated regardless of motivation, Hoffman conceded, she made what I thought was an especially critical point: that she believed that the investigation of Ward Churchill by the University was inconsistent with academic freedom and that examining a faculty member’s entire scholarly record  because of a single controversial work does have a chilling effect on speech (source).

With reference to the question of plagiarism, Dr. Hoffman explained that she “had found instances of faculty plagiarism in the past, and in these situations her custom was to require the faculty member to issue a retraction, take the article off their resume, apologize to the person whose work they plagiarized, and perhaps enforce a loss of pay or include a formal letter of reprimand in the faculty member’s personnel file.” Just as important, “Dr. Hoffman stated that she hasn’t terminated anyone for plagiarism.” (source).

For more on Dr. Hoffman’s testimony see also:

• Hoffman describes “all-out assault” by right wing
• Betsy Hoffman testifies via video at Churchill trial
• Churchill trial Betsy Hoffman testifies via videotape

Also, the following is coverage from ABC Channel 7 News in Denver, for Day 3, of the trial:

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