By Joan E. Bertin
Even though a jury has now determined that Ward Churchill, a tenured professor at the University of Colorado, was fired as a result of his controversial views and in violation of his constitutional rights, his case remains controversial. The case, and the ongoing dispute it has generated, highlight the fact that when questions about academic competence are raised in conjunction with an attack on the expression of controversial views, the two issues become inextricably entangled, and any resulting review will, at best, appear to be tainted. This is not to suggest that academics who are embroiled in free speech controversies enjoy permanent immunity to charges of academic misconduct. Rather, it suggests the importance of addressing professional competency issues independently and responding with deliberation to charges of academic misconduct against controversial figures.
Churchill wrote an essay in 2001, shortly after the attacks on New York and Washington DC, in which he expressed the view that US foreign policies engendered hostility around the world, and that the US bore some responsibility for the attacks. He also referred to victims in the World Trade Center as “little Eichmanns,” analogizing them to the Nazi official who played a major role in deporting Jews and transporting them to concentration camps.
The essay attracted little attention until early 2005 when, on the eve of Churchill’s appearance at Hamilton College in New York, it was noticed by a faculty member, who sent it to the student newspaper. The paper published a story about it that was picked up by a Syracuse paper and online and eventually came to the attention of Bill O’Reilly, the well-known television commentator.
O’Reilly, followed by numerous other media figures, took up the case against Churchill, creating a firestorm of criticism directed at him and the University of Colorado, where he was a tenured professor. Almost immediately, politicians in Colorado, from the Governor down, demanded his termination, threatening to cut funding to the university. After an emergency meeting of the Board of Regents, the acting Chancellor announced his intention to investigate Churchill to see if there was a basis to fire him. The University’s president defended Churchill’s right to hold and express controversial views, but she resigned, apparently under pressure, shortly thereafter.
The university quickly concluded that it would be unconstitutional to fire Churchill because of his views. Nonetheless, the Chancellor promised to examine Churchill’s record to see if there were other possible grounds for termination. Various charges of academic misconduct, including plagiarism, surfaced, or in some cases re-surfaced. The matter was then referred to a faculty committee to conduct a full investigation. The investigation was justified on the ground that charges of academic misconduct provide an independent and legitimate ground for investigation, regardless of the circumstances in which they arise.
In the spring of 2006, the committee concluded that Churchill had engaged in academic misconduct. Although the committee was divided on the question of penalty, the acting Chancellor announced that he would dismiss Churchill. An unsuccessful internal appeal followed and, in the spring of 2007, the new president also announced his intent to dismiss Churchill.
Churchill filed a lawsuit claiming that his First Amendment rights had been violated and seeking reinstatement. At trial, the university reiterated its position that Churchill was terminated for academic misconduct, not his controversial views. Churchill argued that he never would have been subjected to tenure review or found guilty of misconduct if he had not made controversial statements about 9/11, and that the findings of academic misconduct were a pretext to fire him for constitutionally protected activity. The jury found for Churchill and awarded nominal damages for the violation of his constitutional rights. The question of whether he is entitled to reinstatement remains before the court.
Even if Churchill is ultimately reinstated, questions will undoubtedly persist about his academic credentials and accomplishments. Churchill’s defenders have already begun to state their case in scholarly journals, and his critics will undoubtedly do likewise. This is how such questions are normally addressed – within the community of interested scholars. Such a process was preempted by the swift initiation of disciplinary proceeding. Since Churchill had been on the faculty since the 1980s, the rush to initiate disciplinary action is troubling.
It is virtually inevitable that holders of unconventional or controversial views will be attacked on professional grounds. The consequent chilling effect on professors’ freedom to express political views is likewise predictable. To prevent this damaging sequence of events, universities and scholars should always defend colleagues’ right to hold and express controversial views as a matter of principle, regardless of whether they agree with them or respect their scholarship.
When disciplinary action for academic misconduct is initiated in direct response to the expression of controversial views, as happened in this case, it is reasonable to presume that the speech precipitated the disciplinary action. To dispel that presumption requires persuasive evidence that retaliation was not a motivating factor in the result, evidence that may be elusive if the sequence of events is highly suspicious, as it was here. Attention to such fine points is likely to become critical if external decision-makers, like courts, become involved, as they may if certain legal rights are asserted.
Placing the burden on the university to make its case does not insulate controversial professors from charges of professional misconduct, nor will it compromise scholarly standards. It does impose the obligation to enforce those standards independently, and not as a panicked response to external pressures. When academic institutions are reasonably perceived as caving in to such pressures, their integrity and credibility suffer as a result. In such a position, they can hardly be effective advocates for academic freedom or scholarly standards.
Tolerance for politically unpopular views is not always evident on campuses, any more than it is in the world at large, but the university bears a special responsibility to protect freedom of thought and expression. The right to speak, write and think independently is at the core of higher education. It is up to members of the academy to convey this critical message not only to their students but to a larger community. This goal can be advanced if, in the future, similar controversies are addressed in a more deliberative fashion, with regard for all the interests and values at stake.