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April 3, 2009
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A dollar for your verdict
I have to say I was not surprised by the verdict in the Ward Churchill trial. I thought there were good odds that Colorado would find itself hoist on the petard created by the fact that it only got motivated to look into repeated complaints about Churchill's professional integrity after the "little Eichmanns" scandal blew--and after a number of really misguided people (state legislators, the governor, bloodthirsty pundits--but not, as Churchill's lawyer falsely claimed, ACTA or David Horowitz) called for Churchill to be fired for his speech.
(Aside: I used to think a "petard" was a kind of sword--and that hoisting oneself on one's petard was an abdominal, chivalrous variant of stabbing oneself in the foot. But I learned recently, much to my delight, that the phrase is more about one's efforts exploding in one's face, and that "petard" is French for fart. All the better.)
Anyhow, in reading around, I've run across some good comments on the troubling implications of the Churchill verdict for academic accountability. Here's NAS chairman Stephen Balch: "the decision for Churchill will only further attenuate an already fraying relationship between the protections of academic freedom and their corollary obligations. Churchill is the poster boy for academic irresponsibility in both substance and style. That he wins today in court, helped somehow by his very notoriety, can only fortify the sense that anything goes. ... if there is a lesson here it is that universities must be proactive in the enforcement of standards. Waiting for a public scandal with all its attendant complications is hardly the policy of choice. Universities must build a culture of responsibility that affects every aspect of institutional operation, but especially scholarship and teaching" And here's ACTA's Anne Neal: "This sends the harmful message to students that plagiarism and fabrication are acceptable if you cry First Amendment loud enough in your defense."
As I noted in an earlier post, the real problem here is the timing of Colorado's decision to investigate. There's a wonderful parsing of both sides of that decision over at Margaret Soltan's blog. Soltan writes:
The underlying issue for me is one of fairness. Churchill's massive academic misconduct was easily discovered; and yet he was chair of a dept. at Colorado. No one cared.The principle has to be equal treatment. If your university typically overlooks plagiarism among your professors, you don't get to randomly brutalize one plagiarizing professor because he said something that pissed off people.
The Churchill story, by the way, makes clear why it's so important for universities to act with integrity and swiftness when someone acts truly badly. Because Southern Illinois did nothing about its plagiarizing president, it's not only a laughingstock; it's an institution that’s going to have a lot of trouble punishing any subsequent scholarly misbehavior. The president has set the example.
A counterexample would be the admirable swiftness and sureness with which the University of Mary Washington dismissed a president for multiple drunken driving arrests. This took guts, since the president threatened to sue, and the university could have lost a lot of money. But universities that have a strong sense of institutional identity are not so easily trifled with or corrupted, and they reap the rewards.
Reader Dave Stone responds:
We might just have to agree to disagree on this one.As I understand the sequence of events, after Churchill made himself notorious, evidence of his academic fraud became public and was presented to the university. Past problems aside, it seems to me that the university has little choice but to investigate the plagiarism, which is exactly what it did.
As a thought experiment, let's presume two folders full of evidence of academic fraud come through the Colorado provost’s transom on the same day. One is Ward Churchill's, the other is a molecular biologist no one’s ever heard of. It seems to me that the argument presented here is that it's fine to go after the molecular biologist, but not Churchill. In effect, he's shielded from penalty for wrongdoing by the fact that he previously said obnoxious things.
Reader TAKFAU writes:
I think the better analogy would be to a police officer who pulls over a car because she doesn’t like the political views expressed in the driver's bumper sticker, and then arrests the driver after finding a baggie of marijuana under the passenger's seat. Although hard to prove, this would obviously be a First Amendment violation. Actually, given Colorado's tolerance for gross misconduct on the gridiron, perhaps we should add to the analogy that this same police officer previously allowed other drivers to go free even after discovering a smoking gun, a bloody knife, and a dead body.
And Stone answers:
I promise–my last word on this subject. I think TAFKAU's analogy isn't quite right. Joe is walking down the street and sees a political bumper sticker he doesn't like. He looks in the car and notices a bag of marajuana on the seat. He then flags down Officer Joe and reports this to him. Officer Joe then arrests Jim, the pot-smoking, political-bumper-sticker-sporting perpetrator.I don't see a First Amendment issue here.
I like the parsing here--though I wonder whether some of it isn't beside the point. Shortly before the jury began its deliberations, the judge threw out Churchill's claim that the investigation was undertaken in retaliation for his speech, and ordered the jury only to consider whether the firing was. The suggestion is that Colorado was well within its rights to investigate Churchill in the wake of the scandal about his speech--or at least that the question of whether it was in its rights could not be responsibly determined by the jury. Also not at issue was the fact of Churchill's malfeasance. The only thing adjudicated was the extremity of Colorado's sanctions for same.
Churchill was awarded one dollar in damages from a jury that asked if it could award nothing at all. It has yet to be decided whether Churchill will be reinstated in his job.
Most of the commentary I've read from higher ed figures focuses on what the verdict means for academic freedom and accountability. It's definitely bad for both. But I'd also say that yesterday was a very bad day for tenure. The disincentive to universities to retain and honor the tenure system--which is already strong, from an economic standpoint, and which currently translates into well over half of all college courses being taught by contingent teachers--just got a hell of a lot stronger.
UPDATE: John Leo translates AAUP president Cary Nelson's comment that the Churchill verdict is fair because "Colorado knew what it was getting when they hired him." Leo's reading is that Nelson is really saying, "If you hire, purely for diversity reasons, an unprepared, erratic, ideologue with no sense of fairness and no academic credentials except a BA in communications, you should not be surprised by what you get." One might also add that if you tenure that person, you are effectively saying you will never fire them for cause, when cause has to do with issues of academic integrity. Could it also be that in addition to harming tenure, the Churchill verdict harms diversity-related hiring initiatives? I'm thinking that the trial has painted a big yellow line between faculty and administration--with presidents and trustees getting a very strong message that there are certain aspects of university life that can no longer be allowed to fall under the headings of "academic freedom" and "self-governance."
UPDATE UPDATE: Andrew Cohen sees things the same way over at CBS News:
It's an odious result; a startling example of the law of unintended consequences. Free speech rights trump competence and accuracy and integrity even in an area of our world--scholarship--where such things ought to matter most.The University is surely to blame for the mess it finds itself in. There is no excuse for the lack of due diligence it performed upon Churchill before it granted him tenure. If school officials had investigated him as fully before they gave him the job they almost surely would have walked away from a deal. But the jury's verdict means that it's now too late to do so. Unless Churchill commits murder, or is found to be a drug kingpin, or completely stops showing up to class, CU seems stuck with him until he decides he wants to leave.
So what's the lesson for CU and other schools? Don't offer tenure. Or at least don't offer tenure until an extraordinary level of due diligence has been performed upon the candidate. Will good candidates stand for such a review? Will they be willing to be vetted like presidential nominees? Will they be willing to sign a form of "pre-nuptial" that allows the university to do what it tried to do to Churchill? It's hard to overstate the potential impact the Churchill case may have upon the intersection of law and academia. And it's hard to fathom how a professor with such a bad history of poor scholarship can find succor under the law.
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Comments:
As a French professor, I feel obliged to intervene here so we can all be clear about what's "exploding" in one's face. A "pétard" is firecracker (or small explosion). The term is derived from (but not synonymous with) "pet"="fart."
Having written this, I realize that this is explained in the hyperlink contained in Erin's post, which also reveals that to "be hoist by one's own petard" originates in Hamlet.
From the NY Times story:
"The verdict by the panel of four women and two men — none of whom wished to be interviewed by reporters, court officials said — seemed unlikely to resolve the larger debate surrounding Mr. Churchill that was engendered by the case. Is Mr. Churchill, as his supporters contend, a torchbearer for the right to hold unpopular political views? Or is he unpatriotic or — as his harshest critics contend — an outright collaborator with the nation’s enemies at a time of war?"
So this case was all about his "little Eichmanns" comment? You have to go to paragraph 12 to see a plagiarism reference.
Ward Churchill: A jury of likeminded peers has now confirmed it. You can dig up a coprolite, put sunglasses, an ugly gray wig, and clothes on it, give it a job, even paint it. But it’s still a rigid, unyielding, unsightly, and worthless piece of coprolite.
What's the lesson for CU and other schools? Don't offer tenure. Or at least don't offer tenure until an extraordinary level of due diligence has been performed upon the candidate. I'm not sure that the prevention of Churchill-style debacles would require an "extraordinary level of due diligence," just something better than the incredibly low standards CU must have invoked with Churchill. At my school, even in the 1970s, he would not have been tenured--simply because he lacked a terminal degree, case closed. I would hope that, as the academic job market has tightened up, so have CU's standards.
Would it really have taken an extraordinary level of due diligence to turn up Churchill's academic misbehavior?
I agree with John Leo's take and that whole paragraph. Back in June 2006 I said this on my blog:
"Because the fact is that CU hired him because he was thought to be an American Indian. And that right there means they deserve the black eye they got when it was discovered that he was playing them for fools. No one ever looked into the allegations of plagiarism and lying about his ethnicity and so forth until he opened his mouth about the WTC and people started wondering who the hell he was. CU would still have countenanced him if they had dared. "
Well, you might like the parsing, but I wish Margaret Soltan would stop her vicious spreading of lies about "the president of the University of Mary Washington" -- her former dean, someone who undoubtedly had conflicts with her, and she with him -- that fuel both her continued desire to mock him and her self righteous proclamations about the integrity of an institution she knows little about. By the way, he never threatened to sue the institution that fired him, though the possibility that he might sue was indeed bandied about in (and by) the press. I wonder why fact checking isn't considered relevant or necessary on blogs?
Eliza, I can't comment on what personal motivations may or may not be animating that blog. After reading your comment I did a very quick web search and did not find a reference to Frawley threatening to sue -- but I also am just rushing out the door. The main point--that the board acted swiftly to remove someone who was not competent--does remain relevant.
Thanks for the response. I think the case is a bit more complicated, though. The board acted swiftly, yes, but the university president in this case had offered his resignation before he was fired; presenting the story as if the board had to fire him in order to remove an incompetent person misrepresents, or at least glosses over, this essential fact. By firing him, they not only removed him from his position as president but also as a tenured faculty member. Firing also enabled the university to deprive him, immediately, of health coverage and insurance benefits. Perhaps you and others believe this is all the price a person who is charged with a DUI should pay, and that we should applaud the institutions who as brave and--in the spirit of University Diaries--we should simulateously feel good that the person who drove drunk got what he deserved. My point in responding initially was not to rehash what happened in that particular situation but to suggest that situations are often complicated and to respond thoughtfully, as you seem to like to do, mandates that we be careful not to take "facts" from a blog like University Diaries--well known for its narcissistic commentary and its cartoon-like portrayals of "villains" such as university presidents.
Eliza--
Your chief concern seems to be with University Diaries' comments on the situation at Mary Washington. Why not respond directly to Margaret Soltan there?
And it's hard to fathom how a professor with such a bad history of poor scholarship can find succor under the law.
This kind of thing happens every single day to public employers. Employment law is simply broken, especially as it applies to public employers. Juries are not reliable arbiters of the truth, and case law makes it far too easy to get to a jury. Judges need to be making these decisions, and the standards need to be tightened.
As it is, if one's speech (ostensibly on a matter of public concern, though that element is frequently ignored) is a "substantial factor" in an employment decision, regardless of the other circumstances, the decision is discriminatory. That is an impossible standard for employers to meet, and it allows malfeasant employees to insulate themselves from discipline. The system has to be fixed.
Brett, I agree that it's all too easy to see how this happened. I've been following a case involving a nursing student who passed out borderline-obscene party fliers and was expelled for violating the "unprofessional conduct" provisions of the nursing school's student handbook. He might or might not have deserved the expulsion. Unfortunately, the program director violated another provision of the very same handbook, a provision which provides that expelled students must be allowed to continue attending classes until they've exhausted the appeals process. This student was barred from campus immediately. Naturally, he's suing, and things thus far have not been going well for the school. The first defense was that the student had now missed so many weeks of class it would be impossible for him to catch up, thus rendering the question of his reinstatement moot. The judge was obviously not buying it. He noted that presumably it was to avoid this very problem that the handbook provided for students to remain in class during the appeal process. The second defense was that the student had to be barred from campus because he presented a clear and imminent danger to other students. The judge quite rightly was not buying that, either. I came away from the hearing amazed at how thoroughly and needlessly the nursing program administration had shot itself in the foot. (FWIW, the case is being heard by a judge, not a jury--and it certainly looks as if the kid is going to win.)
Anyway, I'm not sure the Churchill case is good evidence that employers generally face an "impossible standard." CU might well have won this case had Bill Owens and certain CU regents responded more temperately and not given Churchill such powerful ammunition. They don't come out of this thing smelling much better than Churchill.
Having said that, I'll add that I'm not surprised by the poor judgment exercised by such people, who ought to know better. A few days before last November's election my local paper published a scarcely literate letter to the editor by one of the trustees of my own humble institution. It contained pretty much every wingnut trope about the evils of Barack Hussein Obama--from the "extremist Wahabbi Muslim" background on one side of the family to the atheist background on the other, plus the charges about madrassas, Bill Ayers, Jeremiah Wright, ACORN, socialism, affirmative action, the whole schmeer. It was truly embarrassing--not just that the trustee held such views but that he had the poor judgment to publicize his ignorance and bigotry.
The Churchill case was a frackup from start to finish, an institutional failure pretty much every step of the way, from his hiring, retention, tenuring, and promotion right on up to his firing.
No, wait--that's not quite fair. One group of people DID perform its duties conscientiously and honorably: the faculty who examined the plagiarism charges. So I suppose one way to think of this as one of those cases where the hard work of the faculty was undone by the fecklessness of the regents and the politicians.
Another way to think of it: as an update to the The Groves of Academe.
I have to quote someone else ...
"They obviously were not very sympathetic because he was awarded $1 in damages."
That really is not a win.
It's not clear to me why "CU seems stuck with him until he decides he wants to leave." Seems to me CU can refuse to rehire him. If he protests, they can simply respond, "So sue us again. We'll pay you another dollar."
Stephen, most plantiffs wouldn't generally regard the traditional award of $1 in "nominal damages" as a victory, but most plaintiffs aren't looking to do anything with a judgment except collect on it monetarily. What the jury gave Churchill was res judicata, issue preclusion: no other forum affected by the issue can relitigate whether his discharge was wrongful or not.
"Juries are not reliable arbiters of the truth, and case law makes it far too easy to get to a jury."
Employment is overwhelmingly statutory, no longer the common law of contract. Such case law is generally interpretation of state and/or federal employment statutes. Change the statutes and the old case law becomes moot. Of course, that would require legislators who recognize that their constituents aren't actually entitled to a job.
I'm not privy to the trustee's "scarcely literate" letter "EveningSun" refers to, but certainly pointing out Obama's questionable past associations (Ayers, Wright, Rezko, ACORN, et al) and his frequent redistributionist policy statements are fair game for debate; both challenges hardly of themselves constitute "ignorance and bigotry." There was no lack of embarrassingly scornful and disgraceful vituperation of President Bush especially among faculty members; "poor judgment" is not a quality limited to trustees ("such people," as ES calls them with what sounds like a mandarin sniff).
The problem isn't that the trustee criticized Obama. It's that he did so as if Obama's Muslim and atheist ancestry were itself a disqualification for office.
"Mandarin sniff"--I like that. Guess I'd better be more careful about disguising my elitism. Maybe I should take a few of my millions and buy a little spread down in Texas and roll up my sleeves and clear a little brush and be a real man of the people.
Perhaps the trustee in question might not, after all, be made to stand for a whole class of "such people"?
Now true mandarins wouldn't wish to damage a well-polished nail by clearing brush on a little spread in Texas (few head-a cattle---remember the endings of the old cowboy flicks?); they become "people of the people" (like our fearless tribunes, Sens. Kerry and Kennedy and Speaker Pelosi) the old-fashioned mandarin way--they inherit or marry their millions.
Any thoughts on Stanley Fish's piece on his New York Times blog? He basically presents the misconduct case against Churchill as "standard stuff" in the humanities, where scholars are constantly accusing each other of misrepresenting sources and making unwarranted leaps of logic. Nowhere does he mention the plagiarism charges (except to note that the committee deemed that ghost-writing was not plagiarism) or the argument that there was a "pattern" of misconduct.
Perhaps the trustee in question might not, after all, be made to stand for a whole class of "such people"? Is there something intrinsically wrong with using an individual with some trait to represent a class of individuals with that trait?
IIRC, the original Mandarins were a meritocracy. Weird that in our own culture the term would become so negative. (Ditto for "bureaucrat.")
Peter, I agree that Fish is wrong to downplay Churchill's plagiarism. I think the case can be boiled down to "Yes, Churchill is guilty of misconduct, but because the regents so obviously used the misconduct as a pretext the jury made the right call." This is not really the mammoth miscarriage of justice so many are making it out to be. It seems akin to cases where a criminal goes free because the evidence against him was obtained via an unconstitutional search. Sometimes imnportant values conflict and can only be imperfectly resolved. We value good scholarship, but we also value professorial independence. We want to live without the fear of crime, but we also want the state to respect our rights. In general, I prefer to see the resulting conflicts resolved in favor of the party with the least power. Generally speaking, in a case pitting a misbehaving professor against a misbehaving board of regents and governor, or an individual criminal against criminal police officers and D.A., I want the little guy to win.
Eveningsun, I think that I pretty much agree with your notion that due process trumps high academic standards in this instance. What bugs me about Fish is his blithe assumption that there *are* no enforceable academic standards, a notion that ultimately undermines tenure.
Agreed. But that's Fish for you. Maybe he can expand on his ideas in a new book and title it There's No Such Thing as Academic Standards and It's a Good Thing Too."
ES: "Is there something intrinsically wrong with using an individual with some trait to represent a class of individuals with that trait?" Of course not, if that is not to assert that trait typifies trustees and regents as opposed to faculties.
" . . . the original Mandarins were a meritocracy. Weird that in our own culture the term would become so negative. (Ditto for 'bureaucrat.')" Autres pays et autres temps, autres moeurs. Our mandarins and bureaucrats (government and academic) sometimes deserve some degree of skeptical scrutiny. Witness the scrutiny of academia provided by ACTA, FIRE, and the NAS.
I agree that if Churchill's dismissal was based on a pretext, he may have been wrongly dismissed, however vile his exercise of free speech.
