I read the complaint and was surprised that the lawyer asked for money but not for injuctive relief. That's legalese for a court order for the university to take some action, ie reinstanting Churchill in his job. He also could have asked for a temporary restraining order to delay the firing. The other thing I noticed is that what happened yesterday was the Churchill amended a previous complaint - he had already filed the lawsuit sometime before. I have only seen what was filed yesterday and not any other motions in the case.
You may find interesting the legal standard that the court will use to instruct the jury in the trial:
To determine "whether a public employer's actions impermissibly infringe on free speech rights, the court applies the four-prong test articulated in Pickering v. Bd. of Educ., 391 U.S. 563 (1968 )." Burns v. Bd. of County Comm'rs of Jackson County, 330 F.3d 1275, 1285 (10th Cir. 2003) First, it must determine whether the employee's speech involves a matter of public concern. If so, it balances the employee's interest in commenting upon matters of public concern against the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees. Third, if the balance tips in favor of the employee, the employee then must show that the speech was a substantial factor or a motivating factor in the detrimental employment decision. Fourth, if the plaintiff establishes that speech was such a factor, the employer may demonstrate that it would have taken the same action against the employee even in the absence of the protected speech.
The university can base its defense on the 2nd, 3rd, and 4th tests, and will probably use some combination of them. I think the school's defense will basically be that people who live in glass houses shouldn't throw stones. All the attention he attracted to himself brought all these other ethics issues out of the woodwork.
Churchill is going to argue that there is a witchhunt against him, but in reality he was doing all he could to draw attention to himself.
Jim!! I skimmed RoseMarie's article. What mindless drivel!! Comparing our ex-perfessor to Galilieo is worthy of a good laugh.
Let the trial begin. Observing our ex-perfessor giving a deposition under oath and being cross examined under oath should be a sight to behold.
Thanks for your great work covering this fiasco.
Will Churchill testify at all?
Will his people demand a blackout on trial coverage?
I protest, Littwin is not a token idiot, he's a for-real idiot.
I use token not in the "space-filling" sense, but in the 'lone representative' sense, Robin (although he isn't quite the "lone" rep for idiocy one would hope existed at the Rocky).
Exactly, jim. Exactly.
Where Eckstein goes wrong is in insisting that Wart is an isolated phenomenon rather than the poster jerk for a widely shared way of thinking.
Well, in Eckstein's defense, I think he probably perceives academia differently than you or I, John, and naturally, he's not going to want to think poorly of his friends.
It's enough (for me, anyway) that Eckstein (a history professor) agrees that Churchill is a very bad boy, and that his defenders are Kool-Aid guzzlers of the first order.
Notice how Churchill lies to the S&G Record reporter:
"Churchill said that in spring 2005, CU officials had authorized negotiation of a settlement with him for 'several hundred thousand dollars,' but the deal fell through because the regents refused to meet one of his conditions: that they publicly apologize and reaffirm the University's commitment and policies on academic freedom."
What a bunch of B.S. The deal fell through because the Regents learned that Churchill had plagiarized Prof. Fay Cohen's essay and called her in the night to threaten her into silence:
http://www.thedenverchannel.com/...247/
detail.html
"Six of the nine CU regents had been willing to approve a settlement for Churchill of less than $500,000 late last week until allegations of plagiarism by Dalhousie University professor Fay G. Cohen in Nova Scotia came to light.
"Cohen alleged that her work appeared without her permission and without credit to her in an essay with Churchill's name on it. Churchill has denied the allegations.
"Some regents said they changed their minds about a settlement in the last week.
"'At this point, I've changed my mind,' Regent Pat Hayes told the Rocky Mountain News. 'Originally, I thought that a settlement would get him (Churchill) off the campus. But as this has gone through all its iterations, I decided last week that I couldn't support it any longer.'
"'The more I heard about, the more I wondered what else is out there. And when push came to shove, I just could not support giving him a nickel.'"
*****
I suppose it shoud come as no surprise, but damn if this psycho can't get through a single interview without lying through his teeth.
the problem i have is that that the KOA and other radio blowhards have been so wrong about everything- the economy, the war/occupation, bush, republican politicians, absolutely everything, and when they go so full out on one guy i have to wonder if the guy probably is telling some truth
Yeah, I guess, JWP. Eckstein gets it.
WT Sherman - Churchill will testify. The University lawyer will subpeona him and he will have no choice. It's not like a criminal trial where the defendant has the right to remain silent.
Normally a lawyer examining a witness can only ask questions relevant to something at issue in the case. For example, it wouldn't be relevant to ask him about one of his wives who was found dead on the road in front of his house, in another unsolved mystery. The university did not fire him for that.
However, Churchill is guaranteed to be a bad witness. He will want to use the witness stand as a political platform to talk about racism, the war in Iraq, and whatever else. Every time he goes off track, he will have "opened the door" to those issues.
He's made so many public statements in his life, that if they go into those areas, Churchill will find himself explaining why he advocates "fragging" (soldiers murdering their superiors to protest war), why he claimed to be a Vietnam war commando when he was really a truck driver, what was his job at Soldier of Fortune Magazine, who is Lee Hill, and on and on and on.
If he doesn't remember then there is endless bizarre material to refresh his recollection. The skeletons in his closet may rival those of Jeff Dohmer. It will be like one of his interactions with the news media where he loses his temper and asks the reporter if he even knows how to spell "CIA". Yet unlike a news interview Churchill will not be able to run away nor will he be able to intimidate the person questioning him. He will be totally out of his element.
yeah, can you imagine- it's only 200-300 conscripted laborers we fried! what th efuck.
those really are miniscule numbers- actually, i remember a pic of a very long line of vehicles and can't imagine they weren't all full, escaping and all, in full retreat.
yoyo, do you have a coherent comment?
Ward on the witness stand. Please let it come to pass.
I wonder if the AG is taking resumes ... I'd pay money to be able to depose Wardo.
Paul Wolf, what do you think the university's chances are of getting the trial moved to federal court? The lawyer interviewed in the DP thought they had a good shot. And how would changing the venue effect the outcome?
Noj, a state court can hear almost any type of case. It has what is called general jurisdiction. A federal court has limited jurisdiction to hear cases that involve federal laws, and cases that involve people from different states. So for those kinds of cases, either court could hear it, and it's up to the plaintiff where to bring the lawsuit. It's not supposed to matter, since the same federal laws apply. However, there are practical things like who the actual judges are, where the jury pool is drawn from and so on.
28 USC 1441 provides for removal of a case from state court to federal court. The defendant has 30 days to request it. All the defendant has to do in a federal question case is file a notice of removal - he does not have to ask the court's permission to do so with a motion. So it is totally up to the university, not Mr Lane.
So announcing this strategy to the news media makes little sense, when the decision is not even up to him.
The other thing Mr Lane likes to emphasize is that Churchill's speech was a "motivating factor" in firing him. As I wrote before, this is only one part of a four part test. Also, I am not sure the university was motivated one way or the other by his speech. They paid no attention to it for three years. They were motivated by the cascade of complaints about plaigerism etc that resulted from Churchill using this incident to promote himself in the news. THAT was the speech at issue, his speaking tours and TV appearances which went well beyond defending himself from critics.
I dont think it makes a lot of difference which court this is in. The jury pool is apparently different, and I guess Mr Lane believes the Denver area is more liberal than Colorado in general. That makes sense. If I were him I would be more concerned about the personality of the judge - but there's no way to control which judge you get.
No doubt, when Churchill testifies this website will be the first to post the transcript.
Thanks Paul. I think Churchill has a reasonable chance on prevailing on the first three prongs of the Pickering test. If so, the battle will be mostly fought on the fourth prong: Would CU have fired Churchill without his insult to the 9/11 victims?
The problem here -- for both sides -- is the lack of a CU precendent. What do you think the odds are that a judge will allow either of the sides to bring in comparable examples from other universities?
I continue to think that Mr. Churchill's chances are poor in court. If the law were mechanical, then I don't believe that the facts would warrant a finding in his favor. And, in front of a Denver jury, I don't think he's likely to win enough sympathy to get the jury to side with him. If the case goes to federal court, then jurors will come from outside of Denver county, and they are likely to be even less sympathetic.
As well, I have noted before that I don't think his damages are all that great. If he takes the new job as a cigar store Indian that someone offered, makes money as an "international law scholar," or takes a job somewhere, then his damages are reduced by his new wages. Indeed, his damages are reduced by comparable jobs that he might have but did not take. My bottom line is that the bottom line is not so high as people think. (And, once again, a jury determines that figure.)
Finally, on a different point, I am a little bit interested in the "pretext" argument. Many supporters argue that the academic fraud charges were a pretext for his exercise of free speech. I don't buy that, although one ought to concede, I think, that distaste for his speech can never be fully isolated from the final judgment. On the flip side, though, I think that the academic fraud findings might in some small way also be pretextual with regard to his false claim of Indianness. By this I mean that the Regents had no chance to deal with the phoniness of his claim to being an Indian. Given their inability to address the ethnicity claim, they may have inclined more toward finding the academic dishonesty.
As the original signer of the Fire Ward Churchill petition, I'm pleased with the result. One lesson is that phony Indians who are phony scholars living in glass houses should not throw stones.
Concerning the 4th prong of the Pickering test, I found this summary in American Jurisprudence Proof of Facts 3d (p. 15):
...................
Probable cause
This test is the determination of probable cause. Was the employee's speech a substantial or motivating factor in the employer's decision to terminate or otherwise discipline the employee? If the answer is no, the examination ends. The free speech issue is irrelevant to the employee's complaint. If the answer is yes, the employee still has one more potential hurdle to surmount.
The governmental employer may still avoid liability if the employer can demonstrate that the employment action would have resulted anyway. If this issue is reached, the burden of proof shifts and the employer is required to prove by a preponderance of the evidence that, based upon circumstances actually known to the employer, the adverse personnel action was imminent and would have occurred anyway. While the objectionable episode of protected free speech might have precipitated the action, there will be no liability for the action if it was inevitable.
...................
That last sentence seems relevant to the Churchill case. Although Churchill's remark about 9/11 may have triggered CU's inquiry into his scholarship, CU will not be liable if the termination would have occurred anyway based on legitimate findings of research misconduct.
Ah, but can CU prove "the adverse personnel action was imminent and would have occurred anyway"? Seems to me that CU had been ignoring complaints about Churchill for over a decade.
Who knows whether it was inevitable that Churchill's work would have been scrutinized, if not for the notoriety resulting from his 9/11 essay? It seems that through the various employment reviews at CU, academic fraud should have been discovered but it apparently wasn't. CU failed in that respect. Will it come down to "should (rather than would) have been inevitable"?
Good point, Laurie. It's the word "imminent" that troubles me. It's certainly possible that eventually CU would have recovered from its craniorectumitis long enough to take a look at Churchill's specious claims, frauds, plagiarisms, et al, and canned him. But how vital to the court's decision on this case will the "imminence" of said canning be?
More research of course is needed, but it seems that last sentence of the summary excerpt suggests that the imminence of the adverse personnel action can arise AFTER "the objectionable episode of protected free speech" has occurred. That is, it shouldn't matter that CU's discovery of facts that inevitably would lead to Churchill's termination occurred AFTER CU had launched a constitutionally suspect inquiry into Churchill's writings. So long as those after-discovered facts would lead to Churhcill's "inevitable" dismissal, neither the dismissal nor the investigation constitutes legally redressable retaliation for First Amendment-protected speech.
Here's a link to model jury instructions for First Amendment retaliation claims, which may be helpful in understanding what Churchill will have to prove in court.
http://books.google.com/books?
id...zccrsIVF1_q47hU
As two of the four older Indian women Churchill and his ex-wife, Professor M.A. Jaimes of San Francisco State University, assaulted in 1994 at the San Francisco Press Club, we are intimately familiar with the problems Churchill creates and leaves in his wake. While we hold CU ultimately responsible for licensing, nurturing, and supporting his plagiarism and deceit, we also understand how he misled them with skillful hucksterism. We would also like to remind the public that CU was contacted repeatedly about Churchill's fraudulent and volatile activities years before he made the "Little Eichmann's" comment.
CU turned a blind eye to his spurious, often violent activities toward Indians, on and off campus. They turned their back on the many complaints they received with typical Ivory Tower lack of respect for Indians - but also out of fear.
As he has demonstrated during this investigation, Churchill goes on the extreme attack when confronted. In California he and his former wife assaulted us - Indian women between the ages of 42 and 86, to try to stop us from distributing a statement denouncing his fraudulent activities in the Bay Area Indian Community.
And as he has also demonstrated over the course of this investigation, he does not mind biting the hands that feed him. We are quite sure that many at CU found him an embarrassment, but taking him to task would have meant admitting their duplicity in his empowerment. After all, handing a lucrative, Indian-specific professorship to a non-Indian without adequate credentials - in this case, only a Master's degree and an "honorary" tribal membership card - is reprehensible to say the least, and for that, they should be ashamed.
Some say Churchill is a media clown that no one takes seriously. He’s also called a poster boy for free speech in academia, yet there is method behind this poster boys' madness. His “scholarship,” long refuted by many Indian scholars, has been widely used in college classrooms for years. An entire generation is now wandering around with his scurrilous notions about Indians and tribes implanted in their brains. Many take him seriously, certain academics included.
His “buffoonery” is well known and largely loathed in the American Indian community. Using mean-spirited rumors, sophomoric name calling, distorted facts, figures, and accusations, as well as threats and violence, he has bullied his way through Indian America, sowing seeds of discord among organizations and tribes, wherever he ventured. In the atmosphere of disunity and suspicion he has created, supported by his university "credentials," his work has served a seemingly greater purpose - the further marginalization of Native Americans.
Some call him a "crazy." Long ago many Indians understood him to be not crazy, but as a wolf in sheep's clothing-a "radical, non-Indian, Indian activist" who confused and confounded instead of explained and enlightened complicated issues of Native America. Crazy? Or crazy like a fox?
During this investigation, CU admitted Churchill's native identity was becoming "increasingly dubious." This very statement exemplifies how little respect CU held for Indians in this matter. Over a decade ago, three different tribes he tried to align himself with, flatly denied his membership, or that of his ancestral family. Why wasn't tribal authority respected? Ironically, one reason is that through his "scholarly work" Churchill has cast a shadow of disrespect, doubt, and disbelief over tribes. The consequences have been sorely felt throughout Indian and scholarly communities across the nation.
When complaints over Churchill's "Little Eichmann's" essay first hit the newswire, many Indian in the know rolled their eyes and sighed. No one cared when he was simply beating up Indian women and writing book after book of misleading native history. But we knew that after attacking mainstream Americans, there would be great outcry - not that it wasn't deserved, but why was the Indian community completely disregarded? After the charges against him were filed, and the media circus raged, certain reporters drug us out to "testify" against him and apprise the public of all that we had gone through in order to plunge the knife in a bit further. Of course we did discuss our problems with him publicly. At last someone wanted to hear what we had to say. But instead of supporting us, as soon as we served their purposes, we were ignored again. This, however, began in the Indian community, has marginalized the Indian community, and concerns the Indian community. We are left now, to deal with the hurtful and false information he has so masterfully disseminated all these many years.
As far as his comments on the World Trade Center victims go, many people believe that by behaving like a "whacked-out, radically liberal professor," Churchill's other goal has been to enrage conservative education critics, pitting them fiercely against the thing he claims to revere most - academic freedom. His real intention is to divide rather than unite forces for positive change. While we can not be sure about this theory, it certainly fits his MO in his dealings with the Indian community. The publicity he has generated is not favorable toward Indians or academia, and has created public suspicion toward the Indian community, and an outcry for conservative reform in the academy.
We urge you not to believe for one instant, that Mr. Churchill has lost one wink of sleep over the damage he has done to Indians or CU. His conduct in the light of CU’s decision, confirms what many Indian people have long known: he is a dangerous presence in the University. For their willingness to finally admit that, CU must be congratulated. Indians who once trusted Churchill are now wiser. Only time will tell if CU has learned from its mistakes.
We believe that academic freedom of speech is important, but it is more than a mere right; it’s a grave responsibility to present truths and speculations accurately and honestly. No one understands this better than Indian people who have been victimized through academia for centuries. We have all worked very hard over the past few decades to try to work together with and apart from the academy to try to right these historic wrongs, and Churchill's academic misconduct has severely damaged the positive attainments we have made. The idea that educating is a privilege that should be conducted as objectively as possible, and should never be taken lightly is a notion we all share in common. It demands honesty, which is a most Indian virtue.
Patti Jo King
Carole Standing Elk
Quatie2007: Please contact me at jwpaine@thorby.com or jwpaine1953@hotmail.com ; I'd like to confirm your identities. I'll of course respect your privacy, and will not share your email addresses or any other information you disclose to me without your consent.
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