> Given the verdict, it is what has to be done.

Actually, it doesn't have to be done, and it shouldn't. The $1 damages award was designed to compensate Churchill for the damage he suffered as a result of the termination. Reinstating him would essentially be giving him a double recovery -- and, of course, he would be basically impossible to fire in the future.

> the university could simply have declined to renew his contract.

A decision not to renew a contract is an "adverse employment action" that can give an employee a cause of action in discrimination. From an employment litigation standpoint, there is little difference between a nonrenewal and a termination.

The $1 damages award was designed to compensate Churchill for the damage he suffered as a result of the termination. Reinstating him would essentially be giving him a double recovery.

This is one of the things that I still do not understand about the verdict. Can anyone confirm that this is true, i.e. that the jury understood that the $1 award would be the only thing that Churchil would take away from the verdict. My understanding was that these were *punitive* damages and that there was more to come (from the judge).

I agree that this is not particularly good for tenure, but I'm not sure that it's as bad as all that. It's always been hard to get rid of tenured professors, and Colorado bungled the whole thing pretty badly from the start. I'm sure it'll make institutions think twice before hiring politically controversial figures without doctorates (or other equivalent credentials) directly to tenured positions.

The first paragraph of my previous post should be in italics or quotes. Apparently you may *not* use HTML tages for style!

"Given the verdict, it is what has to be done."

Not necessarily. In addition to the points raised above, there's also the prospect of appeal. This is civil court: a jury rendering a judgment is not necessarily the last word, because there's no criminal double jeopardy issue. The verdict itself, I assume, can be reviewed for an abuse of discretion, but any pretrial legal issues would be reviewed de novo by an appellate: any reversal might presumably be grounds for a new trial.

"My understanding was that these were *punitive* damages..."

One dollar in punitive damages? That's a new one on me, though as I practice on the criminal side I suppose it's possible. One dollar is the traditional award of "nominal damages," i.e., when a civil jury finds the defendant liable, but deems the harm to the plaintiff negligible to the point of being unquantifiable. Nominal damages means no compensatory damages (other than the plaintiff's costs, if, as here, the law appears to provide for it), and I would think no compensatories means no punitives. Though I don't claim to know anything about Colorado law.

"...and that there was more to come (from the judge)."

The Seventh Amendment preserves the right to jury trial in actions "at law" rather than suits in equity. This traditional division of the common law, generalizing dramatically, means suits for monetary damages get you the right to a jury trial, while civil actions only for equitable remedies (like an injunction or a decree of specific performance) do not. I cannot imagine the parties waived jury trial as to some issues but not others, though I suppose anything is possible.

Erin, does Olson really echoes your thoughts when he writes, "When [an adjunct] embarasses [sic] the university by slandering victims of mass murder, you can easily dispense with him"?

That seems obviously like saying: when a professor makes a controversial claim, a university should be allowed to fire him or her.

I'm sorry, but while I think Churchill is not a serious academic, I do think his infamous paper raises a serious academic issue: namely, to what extent are people who are deemed to be complicit in an unethical activity to be held responsible for it? Churchill does not make a convincing argument, but I think the issue is one the western tradition has struggled with since Abraham bargained with God about Sodom and Gomorrah, or since Athena decided that even the well-behaved suitors of Penelope had to be slaughtered.

If universities are allowed to fire on the basis of *what* a professor says or writes, then academic freedom is gone.

Dave,

Thanks for your input. I did a little searching and found this, from the Chronicle of Higher Education:

"Judge Larry J. Naves, who presided over the four-week trial in a state court in Denver, gave both sides 30 days to file motions related to the next phase of the proceedings, a hearing in which the judge will determine Mr. Churchill’s status at the university. Judge Naves could demand that Mr. Churchill be reinstated at the University of Colorado at Boulder, or he could order the university to pay Mr. Churchill a lump sum for money he could have earned if he had kept his university job, which paid $94,000 a year."

http://chronicle.com/temp/reprint.php?id=nms2z73tbbmm4j878zqcmtbn9j7j9v9z

The article also refers to the $1 as "punitive" damages, though the author may not be using the term properly. Perhaps someone in civil/employment law can explain this?

Matt -- Olson is not describing how things ought to be. He's describing how things are--and how they will increasingly come to be. You know very well that I don't think an academic should be fired for his or her speech. I have defended Churchill on that front many times. So no red herrings. The point here is quite simply the one of pragmatics from the standpoint of those who run colleges and universities. Tenure hems the managers in in ways that are increasingly problematic from economic and administrative standpoints--and so they get rid of it. It's already happening. The Churchill case just underscores why--from one point of view--tenure is totally untenable: not only could they not fire him for his speech (nor should they have been able to), but, it would now appear, they are also prohibited from investigating complaints of research misconduct when to do so might raise an outcry about speech and academic freedom. Tenure hobbles the university by undermining its ability to hold itself accountable--to students, and to the public good.

Contrast that with the latitude one has with contingent faculty. Had Churchill been an adjunct, they still could not have fired him outright for his speech -- but they could have simply declined to renew his contract when it ran out. And they would not have had to offer any reason at all. As you know, that happens all the time.

If you are a manager, it's easy to see which one you will pick. And when the faculty and the AAUP come after you with complaints about how they need tenure to protect their academic freedom, you just do not want to hear it. The Ward Churchill case demonstrates to you just how corrupt self-governance (one of the cornerstones of academic freedom) is. You know, if you are a Colorado administrator, that the real problem is not Ward Churchill, but the Colorado faculty as a whole--who hired him, tenured him, promoted him, chaired him, and sailed him through post-tenure review. They are not self-regulating. They will fail again--and may already have done so. Tenure guarantees it. And you want no part of that.

I think it's a bit extreme to say that the Churchill case indicates that universities are now "prohibited from investigating complaints of research misconduct when to do so might raise an outcry about speech and academic freedom." What the case indicates--at least, one of its important lessons--is the need for more temperate behavior on the part of trustees and politicians. I suspect CU lost largely because it became so clear to the jury that Governor Owens and some of the trustees were out for Churchill's head. Had David Lane not had such great material to work with, such clear evidence of animus on the part of the powers that be, CU might well have won.

Erin, Do you know to what extent the administration was complicit in (or actually encouraged) Churchill's hiring, tenure, and promotion? Was this the failure of "self-regulation" or a faculty that was deferring to the administration or both?

David -- Maybe so, but did you see this: http://www.insidehighered.com/news/2009/04/10/bowdoin?

Peter -- Am scrambling in Friday-manner over here and don't have the time I would love to take to go review what's been written about the circumstances of Churchill's hire. But a couple of things do come to mind: there is his lack of a PhD, and the way his area of study plus claims to Native American heritage greased his entry into the tenure track and eventually a department chairmanship. There is also the report Colorado issued alongside its report on Churchill's research misconduct, finding that Colorado had systematic problems at the self-governance, peer review level when it came to properly enacting policies and procedures on rigorous hiring, promotion, and post-tenure review procedures. There was a strong recognition there that the faculty had been systematically failing to ensure quality control--and Colorado has been grappling with policy review and revision since then, trying to figure out a way to improve things without violating academic freedom. It's been tough.

Peter, I know you addressed your question to Erin but I want to jump in and adress it anyway, mostly because it gets to one of my pet peeves about the quality of many of the faculty hired during those now-long-gone years when universities had so much trouble keeping up with booming enrollments--so much trouble that (as it seems to me) some institutions would hire just about anybody. Many of those hires were in fact excellent profs, but many were not, especially in the less rarefied precincts of academe.

I suffered through classes taught by some of the "just anybodies" when I was an undergraduate in the 80s--people who (like Churchill) didn't publish any genuinely academic work at all. Many of them (like Churchill) did not have Ph.D.s. Many of them (like Churchill) responded pretty arrogantly to the always-implicit criticism posed by the comparative academic rigor of their younger colleagues. And many of them (like Churchill) didn't keep up with what was happening in the field, or at least didn't help their students keep up. (When I went on to grad school I'd certainly heard much about Cleanth Brooks, but not one word about Derrida or Foucault--and remember, I was an undergrad in the eighties. I had no idea what all that "theory" fuss was about and was on a particularly steep learning curve for awhile.)

When the job market clamped down, the overall academic quality of the faculty went up, and for awhile (at least at my own institution, where I was an undergrad and where I now teach) there was a real double standard, with newer faculty being held to much higher tenure and promotion standards than the older faculty had been, especially when it came to research. That did not pose much of an administrative problem prior to the introduction of post-tenure review; the senior faculty already had tenure and as long as they continued showing up to class reasonably sober there wasn't much you could do about it.

Once we introduced PTR, however, a problem arose concerning those low-performing older faculty who had not yet retired. Many of them simply could not meet the new standards. It didn't seem fair to put them instantly into post-tenure review and fire them just because they couldn't clear a bar that had been raised so much in the years after they'd been tenured. On some gut level, it just didn't seem fair to fire them when the quality of their work was as good, or rather as bad, as it always had been. But getting rid of these people sure would have been better for students. (It certainly would have been better for me!) It also would have helped open up tenure-track slots for all those underemployed Ph.D.s.

At my own institution I think the de facto practice was to allow the old faculty to get by under the old standards--and I suspect that Churchill benefited mightily from something similar happening at CU.

Now to your question. As I've just indicated, I think the failure of self-regulation was in part historically determined. But regardless of that, it was a failure of both faculty and administration, for the simple reason that both faculty (at least in the person of department chairs) and administrators sign off on the various evaluations and reviews. I think it's an understandable failure, in the sense that getting rid of senior faculty--some of whom actually were good, hardworking teachers--would be an emotionally difficult thing to do. I also think the failure is understandable in the sense that it can be difficult to detect plagiarism by one's own colleagues. In a small department, people's specialties tend not to overlap; you tend not to be very well read in the literature your colleagues are (or aren't!) reading. It's easy to count up publications and citations, somewhat harder to evaluate the arguments made in those publications, but much, much harder to detect actual plagiarism. (Outside reviews help a lot here.) It's simply not practical to scrutinize every tenure/promotion candidate as closely as Churchill was finally scrutinized. You really need a tip from someone outside.

"What the case indicates--at least, one of its important lessons--is the need for more temperate behavior on the part of trustees and politicians. I suspect CU lost largely because it became so clear to the jury that Governor Owens and some of the trustees were out for Churchill's head."

But the trustees, politicians, and governor had to consider that the taxpayers of Colorado, by and large, don't and never will have the protection of tenure on their jobs and don't understand it or any need for it; and they could reasonably want to know why their taxes have to pay the salaries of people who publish essays about how evil and wicked they are.

Laura, you're absolutely right that the trustees and governor have to keep the taxpayer in mind. My point is that if they'd really wanted to do right by the taxpayer then they shouldn't have gone off half-cocked and given Churchill all that legal ammunition. As an academic, I feel let down by Churchill. As a Colorado taxpayer, I feel let down by Bill Owens and others who helped Churchill pick my pocket (as it looks likely he'll do).

"As a Colorado taxpayer, I feel let down by Bill Owens and others who helped Churchill pick my pocket (as it looks likely he'll do)."

Oh please. How's this for heresy? You know who I feel let down by? The jury.

Jury trial is as Churchill said of democracy, the worst except for everything else that's been tried. Of course the six to twelve idiots Churchill's attorneys could scrape from the bottom of the jury pool in (Denver? Boulder?) would back him to the hilt. I suspect they were blinded by the 1st Amendment issue, and essentially disregarded the crux of the case. They saw him as the little guy being persecuted by the Big Bad State, and that was the end of it.

Call me crazy for my suspicions, but they're based on years of practice as a prosecutor in a pretty left-wing county. Jurors mostly do not want to follow the law even if they know how, as much as they will say otherwise. They want to do what they FEEL is "fair" or "just" even though that's not their job.

Eveningsun, I was thinking less about their wanting to do right by the taxpayer (although I hope they do) and more about how if they'd been more temperate their constituents would have thought they were caving.

> Jury trial is as Churchill said of democracy, the worst except for everything else that's been tried.

No question about that -- except juries are worse than bench trials (in which the judge is the factfinder instead of a jury). Especially in employment cases, juries produce far more injustice than justice. They are ruled by emotion instead of logic, and know nothing about the law except what little they absorb of a minutes-long speech from the judge.

As far as Churchill goes, the university need not and should not do more than ordered to by the court. If the court orders reinstatement, which seems to me unlikely, given the broken relationship between employer and employee (though I'm not familiar with the ins and outs of Colorado employment law), they should and probably will appeal. Otherwise, they should pay the judgment and move on.

> A lawyer for Churchill called the university's position "offensive," adding that "a jury of their peers has convicted them of being constitutional violators."

This, of course, is pure posturing and meaningless.

"except juries are worse than bench trials (in which the judge is the factfinder instead of a jury)."

Not a fair generalization: maybe in employment law (of which I have no experience) but the State demands jury trial all the time in criminal cases here. There are plenty of pro-defense judges for whom a bench trial is a practically guaranteed Not Guilty. And I say that while recognizing that this county is a pro-defense jury pool.