'Whenever The Perfesser speaks to the press, it isn't to make sure the truth is told, it's to make sure the truth has some competition.'
— Jim Paine

CNews 10July09

The Daily Camera presumes to know what's best for CU (ht Leah)

Face the State cartoonist Milton establishes the No Fraud Left Behind employment program (ht Waldo Pepper)

Angry Studies seems to be the oubliette for liars, damned liars, and statistics (ht Waldo Pepper, with apologies to DrunkaTarantoid, who covered this way back in June)

CNews 9July09

Over at DU Sturm College of Law's Race To The Bottom blawg, Charlene Hunter returns and sees that the race is not always to the eloquent in her post "Pat O'Rourke's Clever Trap" (ht Leah)
Excerpt:

Back in 2007, O’Rourke saw ahead to the possibility of needing to use the quasi-judicial immunity defense.“I know that I’m never going to be able to beat David in terms of courtroom drama – he’s very good at what he does, so I’ve got to try to create some legal openings somewhere else in the case,” O’Rourke replied when I asked him about his strategy.

[...]

Mr. O’Rourke’s initial Motion did not mention the Stipulation agreement to explain why quasi-judicial immunity applied in this case. If it had, Lane would have been alerted at that point and used his Response brief to try to counter the assertion. Mr. Lane’s Response to the Motion only noted, rightly, that CU had waived its 11th Amendment immunity, and that quasi-judicial immunity applied to individuals, not to entities such as CU. No reference to the Stipulation, which infers that Churchill’s attorneys did not even then see the trap. It was not revealed until Mr. O’Rourke’s Reply when he quoted the phrase in the Stipulation agreement that gave the reason the usual limitation to individuals did not apply in this case. That would have been the last word in briefing arguments (and one can only think that Pat O’Rourke planned it that way) except that Judge Naves ordered additional briefs be submitted on the issue. The briefs did not offer any new arguments, but probably added protection to the ruling being overturned.

...and, in another post ("Looking Closer At Judge Naves' Order"), Ms. Hunter iterates through the Judge's  reasoning (ht Leah again)
Money shot:

The Order is exhaustively thorough, as would be expected from a judge who anticipates the judgment will be appealed. The rationale for each decision is clear, logical and supported with case law and evidence. As Mr. Lane himself has noted, it will be a difficult job to have it overturned.

The DBAB echo chamber is in full chorus right now; with the aforementioned Marc Bousquet (cultural studies professor and—who knew?—legal forensics expert) leading the pack, it's useful to discover that Professor Thomas Brown has already debunked the various criticisms coined by Ward Churchill and subsequently parroted by his Dune Buggy Attack Battalion (DBAB). In comments to Bousquet's iteration of DBAB pravda, Professor Brown notes:

Marc, you tell so many whoppers here that’s its hard to know where to begin.

First, you falsely accuse the CU administration of “subversion of faculty process”. The truth is that every faculty committee at CU unanimously found Churchill guilty of research misconduct worthy of sanction. The Faculty Senate does not want Churchill back. The process worked.

Second, you falsely accuse Judge Naves of needlessly holding a trial. The truth is that the attorneys for both sides agreed to postpone the immunity decision until after the trial.

Third, you falsely accuse Judge Naves of being “creative” in granting the regents immunity. Had you read his decision, you’d see that he cited extensive case law in support of his decision.

I don’t like the immunity case law any more than you do, and I agree that it stinks for academic freedom plaintiffs. But place the blame for this state of affairs where it belongs — on Congress and the Supreme Court — not Judge Naves.

Meanwhile, DrunkaBlip mocks one of the more prominent members of DBAB (scroll to Update VIII): Peter "Pip-Pip" Kirstein, unarguably "America's dumbest professor"

From our With Base Deceit, You Played Upon Our Feelings; Revenge Is Sweet, And Flavors All Our Dealings department: petulant Michael Roberts continues to shill for The Perfesser.
More from the Revenge Is Sweet department: CU quick to spread news of Churchill ruling (ht Leah)

Altogether now, everybody say 'Awwwwwwww!'
Excerpt:

Churchill’s attorney, David Lane, said the former ethnic studies professor is only concerned with regaining his job at CU. Lane said it would be hard for Churchill to leave a community where he has lived and worked for years.

“He’s still writing and researching, but I don’t know how many options he has,” Lane said. “He’s lived in Boulder for decades, and I don’t know if he wants to uproot his life to live somewhere else. CU has spent the last four years trashing his reputation, so I don’t know how many schools would hire him at this point, given the hatchet job CU has done.”

'Hachet job'? Isn't that sort of, you know, racist?

From our Lernaean Hydra department: CU’s ethnic studies sees growing interest (ht leah yet again!)
Reader's Digest Condensed Version:

“I think the department is headed in the right direction,” [ES chair Al] Ramirez said.

[...]

Associate professor Emma Perez will now lead the department.

Completely OT: Thirty five minutes of rambling stoner gibberish

Confidential to WC: "The thought of suicide is a powerful solace: by means of it one gets through many a bad night."—Friedrich Nietzsche

Speaking of DBAB oratory, brainiac prototype Maximilian Forte from the planet Incoherence (Bizarro Galaxy) checks in with his invaluable observations on The Decision (ht who else? Leah)
All the Excerpt You'll Ever Need:

Let those who abide silently, suffer in silence — and I mean suffer the ultimate indignity of not being able to truly communicate, and communicate truthfully, when they sacrificed so much to enter a career whose [sic] primary basis is communication.

Speaking of Pravda, where else could you find "Ward Churchill and Death of Academic Freedom (part I)" (via DrunkaMatyeryebyets; scroll to... jeezus! Update X?)

CU will bill Churchill for legal expenses

Breaking News: We contacted CU defense attorney Patrick O'Rourke this morning via email and learned that he intends to bill Churchill for out-of-pocket legal expenses, such as deposition transcripts, out-of-state travel, and witness fees. "We haven't totaled those yet," O'Rourke told us, "but those expenses will probably be significant."

In regards to attorney's fees, however, Mr. O'Rourke notes:

[Churchill] brought suit under a federal civil rights statute, 42 U.S.C. 1983. When a plaintiff is a "prevailing party" under that statute, his attorney is entitled to a "reasonable fee" under another federal civil rights statute, 42 U.S.C. 1988. That statute normally allows the attorney's fees to be awarded in favor of a successful plaintiff, but does not normally create the same entitlement for a successful defendant. I saw that one of your readers posted a suggestion that the University might be able to recover attorney's fees under Colorado law for prevailing on a Rule 12 motion, but my motion wasn't filed under that particular rule, so Colorado law isn't much help either on attorney's fees.

Update: James Taranto over at the Wall Street Journal Best of the Web links to us (thanks!) with this headline: "Never Have So Many Been Owed So Much by a Faux Sioux"

Update II: The Denver Post reports "[t]he University of Colorado will bill Ward Churchill for more than $10,000 in out-of-pocket costs." (ht Leah) We note without comment that the DP's coverage of CU's billing of The Perfesser was filed an hour after our post on the same subject was published.

Update III: And... the Boulder Daily Camera (which filed its report two hours after we posted the news) reports that the bill could be nearly as much as $50,000. (via DrunkaCyclops)

CNews 8July09

As a counterpoint to Russell Means' preposterous bluster yesterday, Jodi Rave's post this morning is hard to beat
Excerpt:

As a former Churchill student and CU graduate, I’ve long taken a stand against Churchill who I’ve maintained was an academic fraud who pretended to be a Cherokee. I’ve always had a hard time understanding why any Native man or woman would stand beside him and defend such a vile man who has repeatedly shown hate against Native people. If anyone read the affidavits written by Native people they could see the disdain he had against people he purported to defend.

Are Native people really that desperate for a hero?

DU Sturm College of Law's Race to the Bottom "blawg" is unimpressed with Judge Larry Naves' decision to give Professor Doctor Indian Ward Churchill squat. (via DrunkaWhosis)
Excerpt:

In effect, Judge Naves has, unless reversed on appeal, sanitized CU of the taint of the jury’s decision that CU terminated him not for research misconduct, but for expressing his first amendment rights in violation of the Constitution.

Thus, not only is Churchill not entitled to the $1 jury award and the vindication the award represented, but his attorneys cannot seek reimbursement of their attorney fees conjectured to be over $1,000,000 since Churchill did not prevail in his Section 1983 first amendment claim.

Most of this cost would never have been incurred by Churchill and his attorneys (or, for that matter, the jury’s time in sitting through a month long trial) had the issue of quasi-judicial immunity been determined before trial by Judge Naves through a motion for summary judgment that as a matter of law CU would prevail.

Meanwhile, Vincent Carroll over at the Denver Post enjoys some long-awaited schadenfreude (also via DrunkaDude (you really should be visiting his blog more often))
Excerpt:

In the trial's closing arguments, Churchill's attorney portrayed CU as a nest of liars in thrall to the "master narrative" of history that Churchill had bravely tried to counter. "The master narrative," David Lane said, "has been the master narrative for hundreds of years because basically the white guys in suits write history."

They do, do they? On Tuesday, it was a black guy in a black robe who authored a sterling chapter in the judicial history of this state, one that helps to reclaim the meaning of scholarship. One can only imagine the grotesque conspiracy that Churchill will claim to discern in that.

...and the DP gets personal injury & criminal defense attorney Scott Robinson to opine on the inevitability of a Churchill appeal (spoiler: it's inevitable) (yet again via DrunkaWokeUpEarlierThanUsThisMorning)
Excerpt:

[I]s it in the least "judge-like" to publicly denounce a litigant before trial, as the regents did Churchill, in an ill-advised resolution approved in February 2005, long before allegations of research misconduct surfaced?

In that unanimous resolution, the regents proclaimed that Churchill had brought "dishonor" to the university through his unabashedly unpatriotic 9/11 essay, "welcomed" his resignation as the chair of the Ethnic Studies Department, and apologized "to all Americans" for Churchill's "disgraceful comments."

Not really very judge-like behavior, by any definition, and certainly, grounds for recusal in any courtroom in the land.

This case thus pits liability-law social policy against free-speech entitlement, with Naves' decision representing only the most recent chapter in the Churchill saga, which is nowhere near final resolution.

The Chronicle of Higher Education (subscription required) rounds up a gaggle of comments from all & sundry regarding Judge Naves' decision (ht Leah)
Excerpt:

Mr. Churchill's lawyer, David A. Lane, responded to Judge Naves's ruling by announcing plans to appeal. In a statement e-mailed to The Chronicle, the lawyer said, "The message in this ruling is that if your First Amendment rights are violated by the University of Colorado, don’t look to Denver District Court for justice, because justice did not prevail in this instance."

Speaking of The Chronicle (no subscription required), somebody's been sniffing something, and that somebody ain't DiStefano (ht Leah)
Excerpt:

The crowing by the University of Colorado administration after the latest twist in the Churchill case illustrates this claim pretty well. Provost Phil DiStefano seems to have huffed a few lines of Hogwarts Ambiguity Powder to keep a straight face while dubbing CU’s trampling on Churchill’s academic freedom, subversion of faculty process and transparent political thuggery “a victory for faculty governance.”

[...]

Yessir, Naves says, the Regents are immune from legal liability because—here’s the creative part—he thinks they’re kinda like judges, a “quasi-judicial body.” They can’t be sued for decisions taken in relation to their jobs. (Unlike faculty at public institutions, who a growing web of hostile law says can be retaliated against for disagreeing with the thugs and political hacks who boss them.)

Now, the law doesn’t actually come out and say the Regents are immune—that’d be too pedestrian and straightforward. You need a good Reader and Thinker to see that.

As RaceToTheBottom points out, Naves could have spotted this analogy of Regents to judges, and the corresponding immunity from lawsuits before the trial, and spared Churchill the expense of a month-long hearing. But before the trial—not knowing its inconvenient result—Naves didn’t need this clever (and false) analogy.

Look for this stinker to be reversed on appeal. And if it isn’t—whoa, nelly. Strap on for a wild ride. Increasingly the Law says administrations have academic freedom—and you don’t.

Associate professor of cultural studies Marc Bousquet, author of the above (and our first nominee for PB's Cheyfitz Memorial Dead Rat And A String To Swing It With Award), has been a reliable flack for Churchill for a while now. We first noticed his superlative toadying in a July 21, 2008 post.

From our It's Easier To Lie Long Distance department: The Perfesser talks to the LA Times about the decision. (ht Leah)
Excerpt:

Churchill criticized the decision. "What [Judge Naves is] saying, in essence, is they were not prepared to treat me as any other faculty member would be treated, which was all I ever required."

He said he would appeal. "I will continue to deal with it until the day I drop," he said.

Awwwwwww Part IV

Russell Means checks in with his as-always reasoned & balanced (and completely unrehearsed) take on today's decision, written (allegedly) in response to Truthforce's lament. (ht Leah):

If you’re an American Indian in the United States of America, whether you are a Lakota or a Navajo, a tenured professor or a Nobel Peace Prize winner, or an elected president of another country, you will not receive justice in any form from the white people of America. 

They attacked Vine Deloria, Jr. (on the day of his funeral), Rigoberta Menchu and Evo Morales. An Indian on a reservation can’t get justice. And a tenured professor can get unconstitutionally thrown out, vindicated by a jury of his peers in a court of law, and it doesn’t matter.

Everyone I’ve named cannot fight back. Evo Morales has to worry about being the president of a country; Rigoberta Menchu has to continue working for her people. Vine Deloria is dead.  Indian people on reservations have no power of any kind. Only Ward Churchill has the ability to fight back and win, and it’s still not good enough. They still quash him.

The American Indian has been living at Guantánamo Bay since the founding of the United States of America.

Taste those bitter, frustrated tears of unearned victory denied. Savor them. Yesssss.

Concerning attorney's and other legal fees Churchill had sought in his lawsuit: Attorney Roger Fraley, posting on his blog XDA, ruminates "After a few hours of thought, I now think the finding of quasi-judicial immunity ends Churchill's quest for attorney fees and indeed, although the Order does not mention a 12 (B)(5) motion, the finding of immunity might entitle the University to their attorney fees under Section 13-17-201, C.R.S."

Awwwwwww Part III

The statement of CU-Boulder Chancellor Phil DiStefano:

The judge's decision today is a victory for faculty governance. It reinforces the idea that faculty set the standard for academic integrity on our campus and all campuses across the country. His decision reinforces the notion that faculty establish research standards, abide by them and enforce them.

The judge elected not to expose us to a double standard. Professor Churchill was found to have committed research misconduct by a number of committees. The judge recognizes that we cannot hold one faculty member to a different standard than we hold the rest of the faculty and the students. To have that double standard would have been very harmful to the campus.

This is not an issue about free speech or about academic freedom. This is an issue about research misconduct. I said back in 2005 and again in 2006 that Professor Churchill's speech is protected. However, there were numerous allegations of research misconduct that needed to be investigated and we did so. A number of faculty committees reached a consensus there was research misconduct.

Awwwwwww Part II

Over at the future ex-blog of Churchill's dog, Benjie, Churchill's future ex-wife, Natsu "Truthforce" Saito laments:

July 7, 2009

On April 2, 2009, after hearing evidence for a month, a Denver jury unanimously found that Ward Churchill had been fired from the University of Colorado not because of research misconduct but in retaliation for speech protected by the First Amendment.

After more than four years of political attacks on Ward Churchill, a clear statement had been made:  the University of Colorado had violated the U.S. Constitution when it fired Churchill, a tenured full professor of American Indian Studies.

The normal remedy in such cases?  Reinstatement.

Today, July 7, 2009, Judge Larry Naves of the Denver District Court threw out the jury’s verdict, adopting the University’s argument that the Regents have “quasi-judicial” immunity from such lawsuits.  In essence, this means that the Regents and University administrators are free to continue to violate the Constitution.

In a 42-page opinion lifted wholesale from the University’s pleadings, Judge Naves went on to explain why Ward Churchill should not be given front pay, back pay, or be reinstated.

All of these are irrelevant, of course, if the jury’s verdict is not upheld. But the fact that the judge went to such pains to adopt the University’s arguments — which often directly contravened the factual record in this case — speaks volumes.

This ruling simply confirms what we have observed so often.  When given access to the facts, regular people on the street can make clear, reasoned decisions that uphold constitutional values.  It is rare, however, to find persons in positions of power who will not bow to political pressure.

Attorney David Lane will, of course, appeal this decision.  Ward Churchill’s reaction?  “I can’t think of any way to improve upon Steve Earle’s line from The Hard Way:  ‘There are some who break and bend.  I’m the other kind.’”

...and in an earlier post, Benjie achieves bathetic perfection by accusing Naves of, yes, plagiarism (all emphasis in the original):

Y’know an interesting exercise might be to compare portions of Judge Naves’ ruling to, say, some of CU’s motions.

For instance, I stumbled on this line in Naves’ ruling:

Professor Churchill argues that the University is not entitled to quasi-judicial immunity because the University waived its Eleventh Amendment immunity, but Professor Churchill’s response mistakenly assumes that Eleventh Amendment immunity is the same thing as quasi-judicial immunity. They are separate immunities.

Something about it struck me as oddly familiar. So, having way too much free time, I flipped over to CU’s Reply Brief In Support Of Motion For Judgment As A Matter Of Law Quasi-Judicial Immunity, did a quick search, and found this:

The University concedes that it has waived its Eleventh Amendment immunity, but Professor Churchill’s response mistakenly assumes that Eleventh Amendment immunity is the same thing as quasi-judicial immunity. They are separate immunities.

I’m no kind of lawyer, but it doesn’t seem entirely on the up-and-up for a judge to simply copy portions of his ruling verbatim from motions filed by one side or the other. If nothing else, it’s plagiarism, right? Which is pretty ironic, given the case and Naves’ ruling for CU.

Awwwwwww

No job, no money for Churchill (ht Leah)
Excerpt:

In a resounding defeat for ousted University of Colorado professor Ward Churchill, a judge decided Tuesday to neither give the controversial professor his job back at CU nor award him any financial compensation for his dismissal from the school nearly two years ago.

The ruling from Chief Denver District Judge Larry Naves, which was released this afternoon, comes in stunning contrast to a jury's verdict from a civil trial Churchill brought against the school earlier this year, in which six jurors determined that CU had unlawfully stripped Churchill of his job for expressing his political beliefs in a controversial essay he wrote about the Sept. 11, 2001 attacks on the United States.

The judge's ruling puts to an end a 4 1/2 year saga that generated headlines across the nation and set talk radio abuzz, with politicians, academicians and pundits locked in debates over patriotism, the limits of free speech on campus, and what constitutes academic misconduct.

Let the wailing and gnashing of teeth (not to mention the endless appeals) begin!

...and just because good news bears repeating:
Judge rules Churchill will not get job back
No job, no money for Ward Churchill
Colo. Prof In 9/11 Flap Loses Bid To Reclaim Job

Update: Judge Naves decision (pdf; ht Leah (again!))

Update II (Churchill, hoist by his legal sock-puppet's petard department) (from Judge Naves' decision):

If I granted reinstatement I believe there is a substantial likelihood that there would be future disputes about the propriety of Professor Churchill’s academic conduct, as well as the Department of Ethnic Studies’ ability to evaluate the probity and veracity of his scholarship. Those disputes would necessarily raise the question of whether the University has retaliated against Professor Churchill, especially given Professor Churchill’s counsel’s post-verdict statements, such as, “Anything that is deemed retaliatory is another lawsuit. If they look at him cross-eyed, they could very well end up back in court.”

Update III (Churchill, hoist by his own petard department) (from Judge Naves' decision):

I rely upon Professor Churchill’s statements demonstrating his hostility to the University. His statements illustrate that reinstatement, as a practical matter, is not likely to create productive and amicable working relationships.

Update IV (Churchill, hoist by his own petard department) (from Judge Naves' decision):

Professor Churchill’s own statements during the trial established that he has not seriously pursued any efforts to gain comparable employment, but has instead has chosen to give lectures and other presentations as a means of supplementing his income. Reportedly, he even “received a few job offers” that he declined to pursue. [...] Under these circumstances, I do not believe an award of front pay is appropriate.

Update V (from Judge Naves' decision):

The evidence was credible that Professor Churchill will not only be the most visible member of the Department of Ethnic Studies if reinstated, but that reinstatement will create the perception in the broader academic community that the Department of Ethnic Studies tolerates research misconduct. The evidence was also credible that this perception will make it more difficult for the Department of Ethnic Studies to attract and retain new faculty members. In addition, this negative perception has great potential to hinder students graduating from the Department of Ethnic Studies in their efforts to obtain placement in graduate programs.

Belated kudos to CU Defense Attorney Patrick O'Rourke, who poison-pilled Churchill's suit long ago (from Judge Naves' decision; emphasis ours):

To avoid this unnecessary cost and complexity, the University agreed to waive its Eleventh Amendment immunity, thus allowing direct claims to be brought against the University and the Board of Regents. In return for the ability to bring direct claims, however, Professor Churchill agreed that the University acquired the ability to assert any defenses that would be available to individual Regents. [...] Therefore, because quasi-judicial immunity was a “defense that would have been applicable to any of its officials or employees” it is a defense available to the University and the Board of Regents.

Update VI: DrunkaBlech reports Churchill's legal sock-puppet, David Lane, will be holding a press conference at 4pm today. Drunka's live-blogging coverage from Crapless & Silverfish*

Update VII: We missed this first read-through, but Judge Naves also VACATED the jury award (the infamous One Dollar Victory™). Great catch, Amy! @sspats be upon you!

Update VIII (and apropos to nothing):

The sneer is gone from Casey's lip, his teeth are clinched in hate;
He pounds with cruel violence his bat upon the plate.
And now the pitcher holds the ball and now he lets it go,
And now the air is shattered by the force of Casey's blow.

Oh! somewhere in this favored land the sun is shining bright;
The band is playing somewhere and somewhere hearts are light,
And somewhere men are laughing and somewhere children shout;
But there is no joy in Mudville -- mighty Casey has struck out.

More:
Awwwwwww Part II
Awwwwwww Part III
Awwwwwww Part IV


Thanks to Charles over at Little Green Footballs for the attention!

 *  ©2006 Churchill's dog, Benjie. All Rights Reserved. Used without permission.

Tech Note

From this point on, we will be posting IP addresses (and any other pertinent information) from which comments we find objectionable are made.

CNews 2July09

Sloppy writing and blatant hero worship mark two of DU Sturm College of Law's Race to the Bottom's "reportage" of the Ward Churchill reinstatement hearing yesterday.

First, their color commentary
Excerpt:

While the witnesses—especially Professor [Richard] Jessor—spoke passionately about the importance of research integrity to maintain academic standards, this is a pretty esoteric concept.

In the end, CU had only speculation that the sort-of-proved allegations of research misconduct would so damage the University’s reputation as to affect hiring and enrollment.

Integrity is an esoteric concept. Got it. In any case, that CU only "sort-of-proved allegations" of research misconduct during Teh Trial is precisely why Churchill won and CU lost; fairly obvious instances of Churchill's research misconduct, plagiarism, and fraud litter his career, and it takes a special brand of stupid to miss them. Lucky for CU, defense attorney Patrick 'Rourke was up to the task.

Anyway, in a second post, The Battle of the Message
Excerpt:

Professor Churchill’s testimony was—as ever—eloquent. He emphasized that he filed a lawsuit as “a matter of principle to preserve the concept of academic freedom, which is to say that political powers cannot silence professors because they disagree with their beliefs.” (all quotes approximate) “And to obtain justice, restitution, restoration to the position that jury found I was illegally removed from.”

Yup. Eloquence that even paraphrase cannot adulterate. Perhaps the testimony yesterday was lopsided in terms of eloquence, righteous indignation, and hubris, but who could tell from these reports? Charlene Hunter, the third year law student to whom integrity is an esoteric concept, authored both; her past reports on this case have all shown a growing bias toward The Perfesser, and these two posts mark her change to E major.

Incisive, dispassionate legal analysis of the final act of a complex legal ballet? Or schoolgirl-crush mash notes written by scented candle light, reclining in a warm, sudsy bath, Ravel's Boléro playing in the background? You decide. (ht Leah)

Teachers for a Democratic Society, repository of the "Unfire Ward Churchill" petition (and nothing else), having apparently achieved its purpose, ceased to exist a while back, but we're just now able to speak of its passing without tears.