[editor's note: Our occasional correspondent, Dianna Deeley, offers up a much more thorough critique of law professor Robert O'Neil's recent essay on Academic Freedom, Freedom of Speech, and Ward Churchill]
By Dianna Deeley
Reading Robert O’Neil’s “The Limits of Freedom: The Ward Churchill Case”, I anticipated some analysis and guidance regarding what lessons and precedents we can take from the still-unresolved matter of Ward Churchill. I received a severe disappointment. Even those who have followed the serial adventures of Ward-o with breathless interest will find this article opaque. Rather than illuminating the issues surrounding the case, Mr. O’Neil manages to further obscure the questions he raises of free speech, academic freedom, and the responsibilities of professors.
The primary issue is: Robert O’Neil ignores the history of the University of Colorado and Ward Churchill; in an article professing to discuss what possible precedents may be applied to (or drawn from) Churchill’s case Mr. O’Neil manages to confuse the issue even further; and, because of the two preceding points, Mr. O’Neil fails to provide the guidance that, as stated in his own summary paragraph, administrators and faculty are seeking.
Ward Churchill began working at the University of Colorado in Boulder in 1978, though he did not become an associate professor until 1990. The essay which brought him to the attention of the general public was written in 2001; it received almost no notice until 2005. In the years between 1978 and 2005, Ward Churchill, by his own account, court documents and newspaper articles, was involved in a “take-over” of land and persistently disrupting the Columbus Day parades (his 1992 court defense is the beginning of his fabrication regarding the Mandan Smallpox Epidemic). During this same time, Churchill wrote many articles articulating his opposition to the United States government, historical and present, and his view that said government was, is, always has been and (short of radical alteration) probably always will be, racist, imperialist, oppressive and bad.
The University of Colorado , with more than 25 years of Ward Churchill under its belt, knew all of this. The administration cannot possibly have been ignorant of Churchill’s character, personality or political views. This renders the fourth paragraph of Robert O’Neil’s essay ludicrous:
The response of CU administrators was not temperate. Their only hope was to assert that Churchill was free, by virtue of the First Amendment and academic freedom, to call the victims of 9/11 “little Eichmanns”. One can hardly blame the Chancellor, Elizabeth Hoffman (President of CU Boulder), the Regents and their staffs for standing on these principles; a single student editorial has exposed CU scholarly standards, hiring practices, and ability to police its faculty to a raucous public debate. I cannot imagine why O’Neil ignored this history. It is entirely relevant to the case of Ward Churchill. Especially when O’Neil himself states, “little attention has been paid to the proximity between the topic of the offending statements and the speaker's academic field--a nexus that surely would seem to warrant further study (“Limits of Freedom”, page one, paragraph one).” O’Neil is correct that this nexus warrants closer attention; however, he does not provide even a sketch of such a study.
The response from the university's administration was more temperate. The chancellor of the Boulder campus, Phil DiStefano, found Churchill's statements "offensive," lamenting that the essay had "outraged and appalled us and the general public." The language of the essay was, he continued, "hurtful to everyone touched by that tragedy." Yet the chancellor insisted that his errant colleague had a citizen's right to "hold and express his views, no matter how repugnant, as guaranteed by the First Amendment."
Ward Churchill’s academic field was ethnic studies, and in his writings he consistently emphasizes that Europeans victimized Native Americans and other minority ethnic groups; holds that the United States Government continues to do so; and discusses means of resistance. The “offending remarks” simply apply these consistent elements to a current event – one in which the general public has an emotional investment. “On the Justice of Roosting Chickens” is solidly within Churchill’s field, is not a break from his history, nor is it outside the area he claims as his realm of expertise.
To ignore the history of Churchill and CU is to duck the very questions O’Neil himself raises.
When Robert O’Neil turns to the possible precedents, legal and academic, that might apply in Churchill’s case, he multiplies the difficulties for the reader. First, of course, is the First Amendment to the Constitution, which prohibits the government from interfering with freedom of speech, particularly political speech. Then, again as a matter of course, Mr. O’Neil cites Pickering , a 1968 decision by the Supreme Court that says, in essence, that a government employee may criticize governmental decisions in his capacity as a private citizen, within limits. Mr. O’Neil notes that the Special Committee properly decided that Churchill’s essay was not sufficient to result in his dismissal for cause. So far, so good – except that when O’Neil raises two questions that the first CU committee were not tasked with answering (emphasis mine):
First, should a state university professor's speech be judged solely by the Pickering standard? And second, under what conditions might a professor's extramural statements demonstrate […] a lack of "fitness in ... [his or her] professional capacity as a teacher or researcher"? (page 5, paragraph 1)
If that original committee had censured Churchill for lack of fitness in his professional capacity, how would academic freedom have been imperiled? Again, by ignoring the history and context of Churchill and CU, Mr. O’Neil’s example confuses, rather than illuminates, his point. On page seven, paragraph four, he writes, “In fact, there is no ready substantive standard to determine when a professor forfeits the protections of academic freedom by his extreme statements on matters in or close to his or her discipline.”
Those who have only a casual acquaintance with Churchill’s history and the case, or relying upon O’Neil’s brief summary, might not understand that Churchill’s controversial essay is indeed a “statement on matters in or close to his discipline” (if you accept that his body of work – however riddled with errors and fraud – relates closely to the matter of “Roosting Chickens”). While O’Neil’s essay is, by its own admission, exploratory, by this point the reader thrashes in a mire of confusion. Is O’Neil suggesting, mildly, that the initial committee was asked to examine the wrong questions entirely? Or is he saying that the sheer lack of a clear standard handed the committee a paradox? Was Churchill speaking within his discipline, or not?
Citing a real world analogy of a professor of religious studies who had a less than respectful view of conservative Christians whose remarks became public, O’Neil dismisses this whole issue (a very interesting issue, deserving an essay devoted entirely to it) by remarking that neither CU nor the other university ever addressed the issue of academic fitness. If the reader is not blinking and shaking his or her head by this point, the reader has not been trying to follow O’Neil’s point.
O’Neil remarks that the “scope of faculty expressive freedom could be severely curtailed by a repressive administration or even by established scholars who are prone to find those who challenge the scholarly status quo inadequately respectful.” (Page 6, paragraph 2). Given the cut-and-thrust of footnotes, and the truly deadly use of “pace, Professor So-and-so”, academics have sufficient weapons at their disposal that whining to the administration would seem (in academic terms) rather wimpy.
“Limits of Freedom” appears to center around the point that without a substantive standard to determine when a professor forfeits the protections of academic freedom, it is hard to ask the right questions; no one could possibly disagree with this. Further, O’Neil seems to indicate, we have not determined if a professor’s or student’s academic freedom is more protected within their field of expertise or lessened. The problem being, of course, that both points fail to apply to Churchill. And even though O’Neil (mercifully) dismisses the contention that all the charges of academic misconduct that were brought against Ward Churchill are politically motivated, the fact remains that CU will be able to dismiss Churchill (if they do) because he is a poor scholar, a plagiarist, and a fraud, not because of “Some People Push Back: On the Justice of Roosting Chickens.”
O’Neil concentrates upon the work of the initial, extraordinary committee, which had only a month to work in, operating in the midst of a huge public uproar (I should know; I was a participant). He raises fascinating questions that should have been asked, and answered, with the Churchill case providing at least tentative precedents. The essay, however, simply ends without resolution.
Is any of the first paragraph’s promised guidance on display?
Not directly; one could take from Robert O’Neil’s essay the guidance that an extraordinary committee might do well to consider the questions of academic fitness as opposed to political speech; or perhaps that the true question should be whether the academic under scrutiny is simply exempt from academic discipline because he or she is speaking as a citizen. The missing piece, though, is that most of the questions raised were not answered by any portion of Churchill’s case; they were answered by his history at the University of Colorado . Without that context, the citizen or administrator seeking guidance is still lost in the murk.