Posted by David Kopel: Ward Churchill and the Jeffries Case: [1]Stone Court raises some interesting issues regarding my recent [2]post regarding the 199 University of Colorado professors who signed a petition demanding the termination of the Regents' inquiry about Ward Churchill's misconduct. Jeffries is a Second Circuit case in which the Supreme Court, pursuant to the recently-decided Supreme Court case [3]Waters v. Churchill, reversed a previous decision of the Second Circuit. On remand, the Second Circuit upheld the decision of the Regents of the City College of New York to strip Jeffries of his chairmanship of the Black Studies Department, because of the Regents' reasonable concerns that Jeffries' off-campus racist speech would disrupt the operation of CCNY. Although Jeffries is a Second Circuit case, the Supreme Court's involvement gives the case national significance; Jeffries an important case suggesting that the University of Colorado Regents' investigation of Churchill, based on the disruptive effects of Churchill's own hate speech, is perfectly lawful. And accordingly, the CU 199's assertion that the investigation is a violation of the First Amendment is extremely implausible. Stone Court does seriously dispute this point, but instead raises a separate issue from the Jeffries case. Waters v. Churchill set a fairly loose standard for the dismissal of public employees based on the potentially disruptive effects of employee speech. In the Second Circuit remand, an amicus brief from a group of university professors urged the Second Circuit to carve out a special academic freedom exception to Waters v. Churchill. The Second Circuit declined to do so, explaining that there was no need to consider the issue, because Jeffries had not lost his academic freedom; he was still teaching at CCNY. Stone Court argues that Jeffries stands for the proposition that Ward Churchill cannot be fired. This misses the main point of my post--which was to refute the CU 199's assertion that the investigation of Ward Churchill is improper and must be terminated immediately. To the contrary, Jeffries validates an investigation begun because of the potential disruption caused by Ward Churchill's speech. One can imagine all sorts of sanctions which the CU Regents might impose short of firing. For example, Churchill could be barred from campus until he successfully completes a therapy program for his inability to control his anger. He could be ordered to write formal retractions of the various academic frauds he has perpetrated. He could be ordered to pay full compensation to the copyright holders for the various works he has plagiarized. But in the Ward Churchill case, I think that termination would probably be the proper remedy, and that Jeffries provides Churchill with less protection than Stone Court realizes. That the Second Circuit declined, on the facts of the case, to consider whether to create an academic exception to Waters v. Churchill does not mean that the Second Circuit (or, more relevantly, the Tenth Circuit) would create such an exception in a case where the issue was properly before the court. There is no such exception currently in the law, although the Second Circuit's statement in Jeffries does at least imply that creating an exception would be worth a court's consideration, in a proper case. So if the CU Regents fire Churchill because of the disruptive effects of his speech, it's possible that the Tenth Circuit might create a Waters exception for Churchill's benefit. But the possibility that such an exception might be invented by some court in the future does not mean that the Regents' investigation is presently improper, or that firing Ward Churchill, pursuant to the black-letter law of Waters v. Churchill would be a violation of the Regents' obligation to obey the First Amendment as it is currently interpretted. Moreover, the history of the Jeffries case is hardly helpful to Ward Churchill. After the trial in the Southern District of New York, district Judge Conboy lambasted CCNY for demoting Jeffries solely because of Jeffries' off-campus hate speech, despite an abundance of evidence which clearly would have supported demoting (or firing) Jeffries and left him with no First Amendment counter-argument. For example, Jeffries had threatened to kill a student newspaper reporter. Judge Conboy also affirmed that the First Amendment does not require colleges to subject their students to the classroom ravings of incompetent "pseudo-scholars." As my previous post argued, there appears to be an abundance of evidence to support the termination of Churchill's employment, on grounds which offer Churchill no shred of a First Amendment argument. Such grounds include academic fraud, and violation of the Colorado statute requiring all public university professors to take and obey an oath to support the U.S. and Colorado Constitutions. Well-established Colorado caselaw affirms that such an oath is violated when a professor calls for the violent overthrow of the U.S. and Colorado governments, as Churchill has done repeatedly. Much of the evidence of Jeffries' professional misconduct (which CCNY failed to use at trial) was brought to public attention as the result of the public uproar following Jeffries' hate speech in Albany. By castigating CCNY for failing to base its actions on such evidence, Judge Conboy implicitly stated that it would be proper for a college to use such evidence as grounds for disciplining a professor. Accordingly, the assertion of the CU 199 that the University must ignore the developing evidence of Churchill's misconduct is implausible. One small point: I criticized the University of Colorado administration for failing to act on complaints about Churchill's misconduct (including a violent threat against another faculty member) which were brought to the administration in the 1990s. Stone Court writes: "The unstated premise of Kopel's claim is almost certainly that the system was broken for Churchill because his political views were beloved by the alleged prevailing left-wing university establishment." Not so. I don't know if Churchill was simply the beneficiary of lax enforcement of rules for faculty general; even today, the administration does nothing to enforce the university rule that professors should not politicize their classroom or verbally attack students because of the students' political views. Alternatively, if the administration was specially lax with Churchill, the reason might be Churchill received favorable treatment on "diversity" grounds, because he was (supposedly) an American Indian. The latter theory is especially plausible because University records show that Churchill was hired for an affirmitive action job counseling minority students, was later given a teaching position, and was later pushed for tenure by the administration (two departments rejected him, but a third aceded to the administration's request) based on the adminstration's belief that Churchill is an Indian.
References 1. http://thurgood.blogspot.com/2005_03_01_thurgood_archive.html#110967693169269773 2. http://volokh.com/archives/archive_2005_02_27-2005_03_05.shtml#1109610226 3. http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=000&invol=U10402 _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
