Churchill v. University of Colorado: Friday, March 20 – Afternoon

This afternoon’s session resumed with the continued cross examination of Professor Robert N. Clinton by plaintiff’s counsel, Mr. Bruce.

Professor Clinton testified that the committee tried to investigate fairly, methodically, efficiently, and that it ignored the content of the 9/11 essay, giving Churchill the benefit of the doubt in the investigation. Despite the committee’s conclusion that there was serious research misconduct, the recommendation was to only discipline Churchill and not terminate him. Professor Clinton believes the committee chair, Professor Wesson, was fair.

Mr. Bruce then turned to the distinction between an actual conflict of interest and the appearance of impropriety. Clinton agreed that the standard was for the committee to avoid even the appearance of impropriety in its investigation. Mr. Bruce’s line of questioning explored the presence of an undisclosed fact that could form the basis for the appearance of impropriety. Professor Clinton affirmed that if an undisclosed fact exists that could form a basis for the appearance of impropriety, then “the better part of valor is to disclose it.” Mr. Bruce then turned back to Professor Wesson’s e-mail to DU law professor Nancy Ehrenreich, in which Wesson made unflattering comparisons between Churchill and O.J. Simpson, Michael Jackson, and Bill Clinton. Wesson did not disclose this e-mail, and the committee members were unaware of it until the hearing. Even in light of Wesson’s failure to disclose an e-mail in which she questioned why academics were supporting Churchill, Professor Clinton still felt Wesson was being “absolutely fair” during the investigation.

Mr. Bruce then questioned Clinton on his statement during the morning session that the committee had at no time denied Churchill an opportunity to present evidence. Mr. Bruce asked Clinton about a situation where he had successfully requested a schedule adjustment to the investigation process for himself and juxtaposed this was the committee’s denial of Churchill’s request for an extension to submit additional evidence. Clinton disagreed that this had the practical effect of denying Churchill the chance to present some of his evidence, focusing on the deadline the committee was under to submit a report, some previous extensions already granted to Churchill, and his failure to give the committee what he kept promising them as further evidence. Clinton imbued the discussion with the idea that Churchill should have had all this evidence lined up when he was writing and dismissed any logistical difficulties with gathering documents or witnesses to support him during the investigation.

Mr. Bruce then questioned Clinton about the committee’s investigative report. The first issue concerned an error in the report. Professor Clinton stated that all committee members adopted the substance of the report in its entirety, regardless of which member took primary responsibility for writing each individual section, as they all heard the evidence collectively. Through the editing process, it was called to their attention that there was a mistake made by the committee, which Clinton insisted they correct. Mr. Bruce projected a statement from Clinton’s website entitled “Minor Correction to Ward Churchill Report.” This website was where the correction to the report was posted. Clinton testified that when you make an error that other people might rely on in their scholarship, the appropriate thing to do is to correct it and make the public aware of the correction. He said that’s what the committee did by posting this correction on his website, even though there was some disagreement about the method of notifying the public of the error. Some committee members wanted it posted next to the report on CU's website.  However, Clinton thought this would be inadequate to put academics on notice of the error and had it also posted on the news section of the Chronocle of Higher Education Website.  In essence, the committee agreed unanimously about the substance of the correction, but apparently some members criticized the degree of notice given to the public by that method of correction.

Pointing to the investigative report, Bruce asked Clinton about the ghost writing issue and whether Churchill violated an established standard of citing an author’s name and thereby committed research misconduct. Mr. Bruce pointed out the conclusion of the committee’s report that focused on this research misconduct did not have a citation for the “established standard” to which the committee was holding Churchill. Witness says that “any reasonable professor” would have known this was research misconduct.

Mr. Bruce then addressed an allegation against Churchill involving an essay he had ghost written for Rebecca Robins, who was credited with the work, and then cited to in his own published writings. Clinton stated the committee found Churchill couldn’t provide written proof that Rebecca Robins consented to her name being put on his work and that there was “no proof whatsoever” that Robinson had ever even read or was aware of the essay.

The next major issue turned on the distinction between citing generally to whole works and specific pinpoint cites for particular facts or ideas. Mr. Bruce pointed out that Professor Clinton had criticized Churchill for a “poor scholarly practice” of citing to whole works rather than using pinpoint cites, even though Professor Clinton had done the same in his own work. Professor Clinton drew a distinction between citing to a whole work that was eight pages long, as opposed to Churchill citing to a whole work that was three hundred and fifty pages long. Mr. Bruce then provided examples of Professor Clinton’s footnotes to longer whole works. Professor Clinton then explained the difference between a “see generally” cite of the general, overarching ideas of a whole work and a pinpoint cite of a very specific fact, such as those that Churchill had cited generally and for which the committee could find no substantiation. Clinton said this was a problem throughout Churchill’s work. Mr. Bruce was struggling with holding Clinton to answering his questions and confining his responses to their scope, resorting to ending most of his questions with “yes or no.”

Mr. Bruce questioned Clinton on his 1990 work entitled “Rights of Indigenous Peoples,” noting that its footnotes two, three, and four are all cites to whole works, although two and three do not use the “see generally” form, while four does. Mr. Bruce managed to wring an admission from Clinton that “we don’t always use ‘see generally’” for general citations.

Mr. Bruce then switched gears to the allegation that centers on “blood quantum.” Quoting from Churchill’s work: The Allotment Act “imposed for the first time a formal eugenics code—dubbed ‘blood quantum’—by which American Indian identity would be federally defined on racial grounds rather than by native nations themselves on the basis of group membership/citizenship.” Plaintiff’s position is that this allegation is based on entirely on the use of quotation marks in this passage, and that all the committee based its investigation on was the fact that the Allotment Act did not include the precise language “blood quantum.” Clinton disagreed, saying the Act was not the first time this federal blood quantum definition of Indian identity was imposed; he then referenced the Rogers case, calling it an earlier eugenics code. Clinton summarized the charge by saying it’s not that Churchill’s claim about federal blood quantum requirements was all wrong, but rather that Churchill’s sources did not say what he indicated they said. Clinton concluded that the existence of blood quantum requirements is not controversial, but the degree of their use is.

On redirect, defense counsel Mr. O’Rourke then questioned Clinton regarding the Allotment Act. Clinton clarified that Churchill’s use of quotation marks in this work misrepresented that the Act contained the term “blood quantum” when in fact it did not.

Clinton then confirmed that Churchill was granted four extensions during the investigation before being denied a final extension beyond April 15th to present additional evidence.

All five committee members agreed on the language of the correction to notify scholars of the mistake in Churchill’s work, but they disagreed on where to publish it to give proper notice to scholars who might rely upon its substance.

O’Rourke then argued that because Churchill wrote the John Smith piece, it was Churchill's responsibility to have the evidence at the time he wrote it, not the committee’s failing in not finding additional sources to support the work.

Judge Naves then asked the jury for questions of Clinton; there being none, the witness was excused.

Plaintiff’s counsel then called Professor Eric Cheyfitz to testify. Mr. Lane began the questioning on Professor Cheyitz’s scholarship and background. Cheyfitz is an endowed chair of the American Studies department at Cornell University. American Studies is the history, politics, and social life of the United States, now expanded to include the Americas. His scholarship includes American Indian studies. He is familiar with Federal Indian law and general traditions and histories associated with his specialty: American Indian studies. Mr. Lane offered Cheyitz as an expert in Indian Studies and Indian law, which Judge Naves accepted after no objection by CU's counsel.

Professor Cheyfitz testified as follows regarding Professor Churchill:

Churchill’s work is widely known as one of the preeminent scholars in the field of Indian studies. Chefyitz has been reading Churchill’s works for about fifteen years. He met him in January 2007 when he came to CU to testify on Churchill’s behalf. The quality of Churchill’s scholarship and academic work is “exceptionally high." The witness hasn’t used any of Churchill’s works in his own classes but refers to them “all the time.in my classes.” Chefyitz described Churchill’s reputation within the field as “widely known and respected, and controversial as well, although many of us are controversial.”

Cheyfitz explained Churchill is controversial because Churchill has pointed out that the Jewish Holocaust has taken over the entire field of Holocaust studies, arguing that the Native American Holocaust is also worthy of study. The witness is Jewish but recognizes the importance of the Native American Holocaust in history, as well as the denial of the “Native American genocide” by the U.S. Government throughout its history. He says this is a powerful debate within the field of American Indian Studies. Cheyfitz summarized Churchill’s position, citing Churchill’s proposal that the U.S. Government intentionally carried out a holocaust against Native Americans, although he is not alone among American Indian scholars in holding this position.

Mr. Lane asked how "Critical Race Theory" (CRT) questions the “master narrative" given by conquering Europeans.  Cheyfitz stated that CRT relates to how judicial decision are not only affected by the law, but also by considerations of race, class, gender, and politics that impact judicial decisions as well. Mr. Lane wove the challenging of the “master narrative,” the account of American history generally accepted by the establishment, throughout the remaining questions.

Mr. Lane then asked Professor Cheyfitz how he learned about the controversy of Churchill’s 9/11 essay. Cheyfitz first learned of the essay through the national media and believes that it received tremendous national media attention. Cheyfitz has read the essay and written about his conclusions. He wrote that the Eichmann reference “demonized the people in the trade towers” but overall thought it was one of the best essays on civil disobedience in the tradion of Henry David Thoreau's "Civil Disobedience."  As far as comparing American foreign policy to Nazis Germany, Chefyitz stated it was useful in some ways and is what Churchill is known for. He pointed out that Nazi concentration camps were modeled on Indian reservations in America.

Mr. Lane asked if Cheyfitz read the investigative committee report and what his impressions were. Professor Cheyfitz said he did read the entire report because the charges against Churchill and the potential loss of Churchill's scholarship, if upheld, would be a “blow to the field”of American Indian Studies in the US.  This, he said is true, for two additional reasons: this probe constituted an extensive investigation of a well-respected scholar for research misconduct and drew national media attention with a resulting negative impact on the field. Cheyfitz thinks the scholars in the field of American Indian Studies who read the whole report, as he did, were skeptical of the charges against Churchill. His reaction to the report is encapsulated in an essay entitled “Framing Ward Churchill.” The essence of this essay is that the charges were “fundamentally baseless and motivated by the political circumstances surrounding the 9/11 essay.”

Mr. Lane then questioned Cheyfitz on a letter he and a group of other academics supporting Churchill wrote to formally file a complaint of research misconduct against the committee at CU. Cheyfitz testified that the committee’s actions in investigating Churchill’s academically proper interpretations of the Allotment Act and the smallpox incident were inaccurate. The committee overlooked several pieces of evidence that supported Churchill’s arguments. Cheyfitz also found the plagiarism charges “frivolous.” After filing a formal complaint of research misconduct against the committee with CU, Cheyfitz never received a response. Cheyfitz agreed that CU was “duty bound” to investigate all complaints of research misconduct, and though this complaint came from outside the university, unlike those against Churchill, Cheyfitz has still never received any response that the investigation should now be conducted by an independent body outside of the CU sphere of infuence due to the conflict of interest or the appearance of bias related to the deficiencies pointed out by the Cheyfitz (and others) complaint of research misconduct by CU's investigative committee.

Mr. Lane then went through all the allegations against Churchill, except the allegation of plagiarism, one by one:

Misrepresentation of the Allotment Act. Cheyfitz stated that Professor Lavelle’s critique of Churchill’s conclusions was “shoddy scholarship” based on inaccurate characterizations of the tribes as autonomous and other misunderstandings of their relationships to the federal government.

Federal blood quantum requirements. Cheyfitz explained that the federal government imposed a racial definition of Indian identity on the tribes, rather than their accepted definition based on citizenship and culture. Churchill’s position is that it’s racist to use blood quantum requirements to define Indian identity because, as there is more intermarriage over time between Indians and other racial/ethnic groups, eventually there will be no one left according to blood quantum who is defined as Indian. So what the federal government is doing is eliminating Indians as a group through the blood quantum definition.

The first eugenics code. Cheyfitz agreed that although the word “eugenics” does not appear in the Allotment Act, the Act implies eugenics in its implementation by federal agencies. Cheyfitz explained the difference between a code and case law is that codes are passed by Congress and case law is made by judges. So Professor Clinton was wrong in saying the first eugenics code was in the Rogers case, both because that is common law and not a code and because, according to Cheyfitz who has written extensively on that case, Rogers does not deal with eugenics as the Allotment Act does.

Use of quotation marks. The committee asserted that quotations around “mixed blood” and “full blood” Indians in Churchill’s work implies the Allotment Act contains these terms verbatim, and because the Act does not expressly contain this language, this constitutes academic misconduct. Cheyfitz disagreed and stated quotation marks serve many purposes, and the use of quotations here does not necessarily imply these words were used in the Act.

Ghost writing. The committee found research misconduct on Churchill’s part where he ghost wrote the Rebecca Robbins essay “from the ground up” and then cited that essay in his own work. Cheyfitz opined there is nothing wrong in this because another professional (Robins) signed off on the essay and applied her authority to it, so she stands behind those ideas as if she wrote it herself. There was no coercion or deception involved, and no basis for research misconduct allegations. Likewise, Churchill’s work on the Indian Arts and Crafts Act did not constitute research misconduct.

John Smith and the deliberate spread of smallpox. Churchill’s work contained two sentences on this topic, positing his belief that there is strong circumstantial evidence that Smith introduced smallpox to an Indian tribe intentionally for the purpose of clearing the way for the invaders. Mr. Lane asked if these two sentences were fact or opinion. Cheyfitz answered they were opinion, but the committee “turned it into the absolute statement” and used it as “another brick in the building of their case of research misconduct.” Cheyfitz stated this “is a completely baseless charge in all respects” because the citation Churchill used did support his conclusion, despite the committee’s assertion that it did not. Chefyitz characterized the John Smith issue is up for debate between reasonable scholars, and the committee’s portraying it otherwise and endorsing the opposite position from Churchill’s as an absolute constitutes research misconduct in itself. Cheyfitz said there is reason to believe that smallpox was deliberately spread amongst Indian tribes because there were vaccines  available for the disease in North America as early as the 1700’s, but they were not made generally available to Indians by the federal government which knew that Indians were particular vulnerable to this disease.

The U.S. Army committed genocide against the Indians. This was one of Churchill’s conclusions that the committee found to be contrary to his cited sources. The committee found Churchill misrepresented his sources and fabricated his conclusions because his own estimate of Native Americans who died in the smallpox epidemic was 144,000, while he cited a source that put the number at 400,000. Cheyfitz said that the assertion as to how the Indians were killed, through deliberate genocidal means, is the real issue here, not the disparity in numbers. Cheyitz stated this is not a significant misrepresentation in the overall context because the source cited from Thornton also cited Stern & Stern that did give the 400,000 number.

Mr. Lane finished his questioning of Cheyfitz on plagiarism, which Cheyitz agreed is wrong, adding it should be understood that there is no single, simple definition of plagiarism. Cheyfitz testified he has checked Churchill’s footnotes randomly in his general scholarship and has discovered those footnotes are accurate. Cheyfitz added he has never seen anyone fired in the academic world for similar charges.

Cross Examination by Mr. O’Rourke:

Cheyfitz stated he thinks there should have been at least one American Indian studies expert on the committee, not just someone familiar with Federal Indian law (Robert Clinton), and there was not.

Mr. O’Rourke then questioned Cheyfitz on the definition of plagiarism. Cheyitz stated context is extremely important in defining plagiarism, and he agrees with Posner’s definition of plagiarism, which requires some gain on the part of the person plagiarizing another’s work. Cheyfitz said he does not completely agree with Churchill’s definition which does not explicitly include context, noting that some people accept Churchill’s definition but he thinks it needs fine-tuning. Mr. O’Rourke then made the point that when Churchill was an associate professor seeking promotion to full professor, one of the considerations in his promotion was the quality and quantity of his published works. The implication is that Churchill did indeed have something to gain from plagiarism.

To summation, while Mr. O'Rourke tried to make points with the jury by going over the issues of research misconduct with Cheyfitz, Cheyfitz skillfully and dramatically countered O'Rourke in every instance.