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« The first -- and hopefully last -- I say about Ward Churchill | Main | Ward Churchill's response »

February 09, 2005



It's too bad so many people on both the right and the left are willing to sacrifice academic freedom in the name of political orthodoxy.

Kevin, this is one case. Academics frequently say kooky and offensive things -- People are okay with that, as we realize that's what academics do. The attack on Churchill does not indicate a trend against "academic freedom." If anything, that people are only going after Churchill indicates how tolerant we taxpayers are of professors. Churchill crossed the line -- He is the moral equivalient of a member of the Ku Klux Klan.

Maybe we shouldn't hold membership in the KKK against a professor. But I don't think that we should cloak Klan membership with "academic freedom." Let's call a bigot a bigot, and then say, "Bigots have rights, too."


A point of clarification. For a lot of reasons, I don't think Churchill should be fired. My only beef with the discussion is pretending that his views have anything to do with academic freedom.


Hey! You know what? My watch is right by my watch, too!

One would think someone purporting to be a law professor would be able to... well, quote law or something concrete as a foundation for a defense of Ward Churchill. Or something from - you know - this CENTURY at the very least.

Funny, Kevin doesn't want to address the allegations of academic fraud swirling around ol' Ward. If Ward did lie and he isn't an American Indian, why shouldn't he be fired for lying on his employment app? If he has committed academic fraud, why shouldn't he be summarily dismissed? If he has perpatrated fraud no matter how slight, why does he deserve any protection from his actions?

Oh, that's right - ol' Ward is a brother Liberal and must be defended even in the face of evidence pointing to fraud. The slightest whiff of rumor or speculation about any conservative must be acted on NOW! If it's a brother Liberal, well... let's take our time and not rush to judgment.

At some point, reality has to enter the picture, and the picture isn't pretty. The chickens are coming home to roost, but it was ol' Ward what built the coop, nail by nail, and board by board.

Kevin Jon Heller

Notice how Buster, unable to respond to the points I was making about academic freedom, has now shifted the discussion onto whether Churchill committed academic fraud. That's a completely different subject. I have no idea whether Churchill misrepresented himself in his C.V., so I have no opinion on whether that would justify firing him.

I will say, though, that in general firing a professor because he lied about his credentials is very different than firing him because of his opinions. The former does not involve, much less violate, academic freedom; the latter certainly does.


Kevin, it is far too easy to respond to your "points" - it ceases to be sport.

I do have to say that I would be embarrased to be representing myself as a college law professor and making First Amendment-cum-academic-freedom-as-absolute arguments like a rookie. Nobody enjoys an absolute freedom of speech, and the Constitution was never intended to convey any restriction or "right" as absolute. So whence comes this ridiculous notion of "academic freedom"?

You want academic freedom? There's a street corner - teach away! Nobody says you are entitled to earn a living at it.

But I am still waiting for some semblance of a legal defense beyond "I said so". You liked his classes? Well, whoop-de-freakin'-doo - that and a buck will get me on the bus. I mean, even if you have to be an utter rookie and fall back on Mill's Harm Principle... give us something solid, man!

Or has the Peter Principle already come into play for you, Kevin?


I'm not sure exactly how Heller saying, "firing him for misrepresentation is allowable, but not for politics" means that academic freedom is absolute. He seems to be saying the opposite -- that academic freedom, in the area of politics, should be large because we want to foster counter-majoritarian heresy, but in the area of fraud, lying, and misrepresentation, should be strictly punished.

There we have: non-absolute measures, a reason for academic freedom, and some standards to judge it by.

As for the legal arguments -- I mean, seriously, the legal arguments to defend Churchill are contractual, and we don't have a copy of his contract, so they're harder to make. The arguments supporting tenure as an abstract principle are policy arguments. And those are the arguments Heller makes.



Until I raised the spectre of fraud - academic and otherwise - Kevin was making absolutist arguments in favor of Churchill, which is absurd thinking and behavior for a law professor. Excuse me, alleged law professor.

As to the "contractual" matters - hogwash. We have employment, discrimination, and educational laws which cover ol' Ward-the-non-Indian. Who cares what his contract does or does not say? It would be nullified if he violated law anyway, so I want chapter and verse on why UC is wrong to fire him for his speech. I don't want to hear vague and amorphous concepts such as "academic freedom", I want law.

There is a lot of smoke being blown around over this matter - and no small amount of it coming from Kevin's specious arguments - so applicable law would blow the smoke out in a hurry. What it tells me is this - if a law professor can't cite anything in law preventing UC from dumping ol' Ward-the-non-Indian on his can, then maybe UC should dump him like the naughty alleged-fraudster he appears to be.

Kevin Jon Heller

It's more than a little ironic that someone who openly admits he thinks Churchill's contract with CU (not UC) is irrelevant to whether the University can fire him demands a legal argument for why Churchill can't be fired. Especially given that the short answer would be: contract law.

Now, I realize that Buster has wished Churchill's contract -- and contract law with it -- out of existence. But let's assume for the moment, purely hypothetically, that contract law still matters. The argument that Churchill's contract with CU prevents him from being fired for his 9/11 statements would then look something like this: the "1940 Statement of Principles on Academic Freedom and Tenure" drafted by the American Association of University Professors (AAUP) contains a guarantee of individual (not institutional) academic freedom. The AAUP's statement does not itself have any legal effect, but nearly all major colleges and universities have not only adopted the Statement (or a variation of it), but include it in their faculty-policy manuals and incorporate it by reference into the employment contracts of their individual faculty members. Under normal contract principles, then, a University would not be able to fire a professor on the ground that it disagreed with the content of his speech, however offensive. See, e.g., Greene v. Howard University, 412 F.2d 1128 (D.C. Cir. 1969) (holding that provisions in a faculty handbook "govern the relationship between faculty members and the university").

Constitutional law also protects Churchill. Assuming Buster hasn't eliminated constitutional law along with contract law, it's worth noting that the U.S. Supreme Court has consistently held that academic freedom is a First Amendment right of professors. See, e.g., Sweezy v. New Hampshire, 354 U.S. 234 (1957); Keyishian v. Board of Regents, 385 U.S. 589 (1967); Regents of Univ. of Michigan v. Ewing, 474 U.S. 214 (1985); Univ. of Wisconsin v. Southworth, 529 U.S. 217 (2000). Following those precedents, The Second, Sixth and Ninth Circuits have held that the First Amendment right of academic freedom protects statements made by professors in the classroom. See Dube v. State Univ. of NY, 900 F.2d 587 (2d Cir. 1990), cert. denied, 501 U.S. 1211 (1991); Hardy v. Jefferson Community College, 260 F.3d 671 (6th Cir. 2001), cert. denied, 535 U.S. 970 (2002); Bonnell v. Lorenzo, 241 F.3d 800 (6th Cir.), cert. denied, 534 U.S. 951 (2001); Parate v. Isibor, 868 F.2d 821, reh'g denied, 1989 U.S. App. LEXIS 5203 (6th Cir. Mar. 16, 1989); Cohen v. San Bernardino Valley College, 92 F.3d 968 (9th Cir. 1996), cert. denied, 520 U.S. 1140 (1997). The Seventh and First Circuits have held that a professor's First Amendment right of academic freedom extends to research as well as to teaching. See, e.g., Dow Chemical Co. v. Allen, 672 F.2d 1262 (7th Cir. 1982); United States v. Microsoft, 162 F.3d 708 (1st Cir. 1998). And finally, the Eighth Circuit has held that the First Amendment protects professors in their role as scholars. See, e.g., Burnham v. Ianni, 119 F.3d 668 (8th Cir. 1997) (en banc).

Finally, notice how Buster once again elides the difference between claiming Churchill could be fired for his speech and claiming Churchill could be fired for fraud in his CV. As I made painfully clear in my previous comment, it is logically consistent -- not "absurd," as Buster would have it -- to accept the possibility of the latter (fraud as a ground for termination) and still maintain an absolutist position against the former (speech as a ground for termination).

But don't believe me. I'm just an alleged law professor.

Kevin Jon Heller

CU, by the way, has adopted the 1940 AAUP Statement regarding tenured professors.



Two words - thank you. Why couldn't you do that in the first place?

Now, as to the irrelevance of his employment contract - it is my understanding ol' Ward-the-non-Indian was not in the classroom when he made his remarks, so how would his contract enter into the picture? If he was not on CU property, and maybe even being paid by someone other than CU, isn't he acting outside his capacity as employee, thereby rendering the contract a moot point?

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