From NAS president Peter Wood:

Opinion in higher education is divided. Was he treated fairly by the court? I think so, but The Chronicle of Higher Education reports that Cary Nelson, president of the AAUP, disagrees, as does Greg Lukianoff, president of FIRE. On the other hand, Ada Meloy, general counsel of ACE finds the decision "a great development for decisions made within higher education institutions."

On a matter of such controversy, it may take a while for the dust to settle. Here is why I think Judge Naves decided the case correctly.

From the standpoint of higher education, the central issue in this controversy is the scope of academic freedom. I suspect that the AAUP, FIRE, ACE, and NAS agree on that. Academic freedom, however, is not a Constitutional matter and is only secondarily a legal doctrine. It is mainly a customary usage in higher education, oftentimes backed up by official statements of colleges and universities. Its exact meaning depends on what colleges and universities say about it and how they commit themselves to it in their relationships with faculty members, students, and the institution as a whole.

The notion of "academic freedom" looms large in discussions of how universities should conduct their affairs, but it is not a very precise idea, and in light of that courts have historically chosen to stand at a distance and let universities sort it out for themselves. Courts, of course, tend to act much more forcefully on First Amendment issues. When an abridgement of the right of free speech is at issue, as it often is, for example, in cases involving speech codes, the judiciary pretty clearly sides with the rights of Americans to express their views freely.

Academic freedom arguments and First Amendment arguments can overlap and, in light of that, there is some tendency to conflate the two. Ward Churchill undoubtedly has a First Amendment right to say whatever he wants about "little Eichmanns" in the World Trade Center and the like. Whether his statements come under the rubric of his exercising academic freedom is something else. But as it happened, the University of Colorado attempted to steer clear of that question. It instead focused on allegations that Churchill had made false statements about his academic record and engaged in other forms of academic misconduct.

His defenders have pointed out, plausibly, that Churchill's academic misconduct probably wouldn't have attracted the University's attention or eventuated in his dismissal if it were not for his flamboyant anti-American statements. In that sense, the University's decision to dismiss him is connected to acts that were clearly protected by the First Amendment and possibly by the doctrine of academic freedom. This left the jury and ultimately Judge Naves with the problem of dissecting the relative contributions of multiple factors.

Churchill's academic misconduct all by itself amply justified his firing, but the University had turned a blind eye to that misconduct for a long time. Suddenly he was the object of national attention, and only then did the University get around to examining what sort of charlatan it had appointed, promoted, tenured, and entrusted to teach its students. It is not hard to see how the jury, after a month-long trial, reached the verdict that Churchill's public statements were indeed a factor in his dismissal.

Cary Nelson's response to this is to praise the jury for finding "that the university president's decision to fire Churchill was fruit of the poisoned tree--the public outrage over Churchill's extramural speech." The fruit of the poisoned tree is a Biblical metaphor (Matthew 7: 17-20) and a longstanding concept in American law for excluding evidence from a tainted source. But I think it's the wrong metaphor.

A man who is living a lie, as Churchill was at the University of Colorado, needs to be careful about drawing attention to himself. Perhaps the saying that most applies to Churchill’s situation is that those who live in glass houses shouldn't throw stones. No matter how provocative Churchill's statements were, he would have continued to enjoy his tenured position at the University of Colorado Boulder if he had not also been engaged in academic fraud. The poisoned tree, if there is one, is not shady procedure on the part of the University but Churchill's shady life.

He got caught. Should the doctrine of academic freedom retroactively award him immunity from a life of fraud? That argument looks all wrong to me.

Academic freedom is a doctrine meant to encourage scholars' pursuit of truth by scholarly and scientific means. It is not a license meant to protect con men, thieves, liars, and other miscreants from the just consequences of their acts. Although the idea of academic freedom goes back much further than the beginning of the 20th century, it came into focus for American academics in a series of cases where universities dismissed competent and honest faculty members for speaking publicly on issues within their expertise but which rubbed university trustees the wrong way. The seminal statement on academic freedom was the AAUP 1915 "Declaration of Principles." It was and is unmistakably a ringing defense of intellectual freedom, but it was also a statement infused with moral clarity. Academic freedom was not a doctrine meant to provide cover to scoundrels, or even to insouciant blatherers:

In their extramural utterances, it is obvious that academic teachers are under a peculiar obligation to avoid hasty or unverified or exaggerated statements, and to refrain from intemperate or sensational modes of expression.

What does the AAUP today say about this language? Basically it proclaims that "Times change, and we need a broader, more flexible understanding of academic freedom." Do we?