Ward Churchill responds to U. of Colorado investigation

[Louis Proyect <lnp3@xxxxxxxxx>]

Summary of Fallacies in the University of Colorado Investigative Committee
Report of May 9, 2006
Ward Churchill May 20, 2006

The May 9, 2006 Report of the University of Colorado (CU) Investigative
Committee is but the latest step in CU's ongoing attempt to fire me for
political speech and, more fundamentally, for scholarship which challenges
the orthodox "canon" of historical truth.

The investigative committee abandoned all semblance of due process and
equal protection mandated by both the Constitution and the University's own
rules, in the process betraying the most basic principles of academic freedom.

Rather than assessing my work in terms of the methods and procedures of my
discipline, the committee - which included no one with expertise in
American Indian Studies - chose to determine for itself the "historical
truth" about disputed matters. Unable to condemn my substantive
conclusions, it engaged in a detailed post hoc critique of my citations.

The committee's recommendation of harsh sanctions appears to have been
driven primarily by my "attitude," not by the specific conduct at issue. I
was presented with the "Catch-22" option of apologizing for things I did
not do or being condemned for being insufficiently contrite.

In this process, the investigative committee abandoned its mandate to serve
as a nonadversarial information-seeking body, instead taking upon itself
the role of both prosecutor and judge. It then did exactly what it accuses
me of doing: it tailored its report to fit its conclusions. As a result,
the document contains numerous false statements, misrepresentations of
fact, and internal contradictions; it suppresses evidence and employs
faulty logic to conclude that I engaged in research misconduct.

A few of the most glaring problems with the report are summarized below:

Punishment for Constitutionally Protected Speech

* Since January 2005, University administrators have been trying to fire me
for expressing my political opinions, directly violating both the First
Amendment and the Regent's own rules on academic freedom. Having
reluctantly concluded that they could not fire me directly for my speech,
they resorted to trial by media, soliciting allegations of misconduct to
use as a pretext.

* Some of this involved encouraging the media to generate
allegations.  Interim Chancellor DiStefano as "complainant" then forwarded
these charges to the Committee. Other allegations were directly solicited
by CU administrators, including law school dean David Getches, who had
already made his bias against me clear. Some came from known political
adversaries, but their malicious or frivolous nature was disregarded.

* None of these were legitimate accusations the University had an
"obligation" to investigate; they were simply a pretext to penalize
constitutionally protected speech. All of the allegations at issue are
based on work I did years, sometimes decades, ago; had there been any
substance to them, they would have been investigated long before now.

* Under University rules, this report was part of a confidential personnel
process. The fact that the committee convened a press conference to
announce its findings and University officials immediately distributed the
full report is but one indication of their willingness to violate my
rights, as well as their own rules, in order to chill my speech and
discredit my scholarship.

* Further evidencing retaliatory motivation, just as this investigative
phase was wrapping up the University announced that it is initiating yet
another investigation into "new allegations" it received over a year
ago.  The message is clear: if you do not give up, we will investigate you
forever.

The Investigative Committee and Its Process

Committee Composition: The committee consisted primarily of CU insiders and
included no one with expertise in my field.

* Given the pervasive bias of CU administrators, I requested an outside
committee and, because of bias exhibited by law school dean Getches as well
as law professor cum columnist Paul Campos, I specifically objected to the
inclusion of CU law faculty. The committee, however, was composed of three
CU insiders, chaired by law professor (and former prosecutor) Mimi Wesson.

* The committee's mandate was to establish whether my scholarship complied
with the accepted practices in my discipline, American Indian Studies - a
subset of Ethnic Studies.

* Ethnic Studies programs were introduced into universities precisely
because the standard practices of mainstream disciplines (history,
sociology, anthropology, etc.) had failed to incorporate historical and
contemporary knowledge they found inconvenient, thereby producing
inaccurate and misleading "academic truth." To rectify this, Ethnic Studies
not only bases itself in the perspectives of diverse communities, but
employs its own set of research practices and methodologies.

* My job is thus to bring a critical indigenous understanding to my
teaching and scholarship. However, the committee included no American
Indians and no one with expertise in American Indian Studies, despite the
fact that eminently qualified American Indian scholars were available and
willing to serve.

Procedural Deficiencies: Neither the allegations nor the standards applied
were clearly identified, and the committee artificially restricted my
ability to respond.

* I was expected to present a defense without knowing clearly which
allegations were at issue. Furthermore, during the investigation, the
committee expanded the scope of certain allegations without giving me
notice or adequate opportunity to respond.

* I was expected to defend my work before being informed of the standards
being applied. The report says American Historical Association (AHA)
protocols and other unspecified standards were utilized, falsely claiming
that I agreed to AHA standards and never revealing which other standards
were applied.

* I was prevented from speaking directly to expert witnesses, even my own,
and was required to e-mail my questions across the room to the committee
chair. This caused considerable confusion; allowed the chair to "interpret"
what I was asking, sometimes fundamentally changing my meaning; and
generally impaired my ability to elicit information.

* Although the rules allow for extensions of time, the committee denied my
repeated requests for an additional 30 days in which to complete my
responses, rigidly insisting on a 120-day time frame designed for much more
limited investigations. I was forced to spend much of this period trying to
determine which charges and standards were at issue, and even more on an
apparently futile attempt to introduce committee members to the
foundational concepts of American Indian Studies and, more generally, the
discipline of Ethnic Studies. As a result, I was prevented from responding
to the charges in a thorough manner.

The Report

Violations of the Committee's Mandate: The committee abandoned its
responsibility to serve as a nonadversarial fact-finding body, instead
retroactively imposing its views as to what and how I should have cited in
support of my historical analysis, condemning my attitude rather than my
scholarship, and tailoring the report to justify its conclusions.

* According to University rules, the investigation was to be
nonadversarial. Instead, the committee functioned in a prosecutorial
manner. Rather than simply reporting its factual findings, the committee
asserted a prerogative to recommend sanctions. Having done this, it then
tailored its presentation to support its advocacy of penalties entirely
disproportionate even to their own findings.

* The committee's mandate was not to determine the "truth" of disputed
historical matters. Yet the bulk of this report, written by persons without
expertise in the subject matter, is devoted to their analysis of the
history at issue. Having concluded, in most cases, that I was substantively
accurate, they resort to a detailed critique of my use of sources and the
nature of my footnotes.

* Much of my work takes the form of synthesis; in other words,
connecting-the-dots with respect to a broad range of information. By
definition, one cannot delve into minute detail with respect to each piece
or the "big picture" will be lost. Yet this is precisely what the report
condemns me for. (Witness the 40 pages of analysis it devotes to the two
paragraphs I wrote on Fort Clark.) If this standard were to be uniformly
applied, no scholar could engage in the sort of analysis which brings
together apparently disparate information to illustrate fundamental
problems with the status quo.

* The committee's charge was to investigate whether my work comported with
accepted practices in my discipline. Instead, it applied standards from a
very different discipline, as well as unnamed standards. In some instances
these appear to have been the standards used in legal publications; in
other cases they seem more akin to "gut" reactions. The bottom line is that
the committee retroactively imposed standards in ways that have never been
applied to other scholars at CU. Nationally, this has been done in only in
a few blatantly political cases, such as those of David Abraham and Michael
Bellesiles.

Distortion and Suppression of Evidence: The Committee disregarded and/or
falsely characterized much of the evidence presented, using the slightest
of pretexts to conclude that I engaged in significant research misconduct.

* The committee did not have evidence that I failed to comply with their
arbitrarily selected and retroactively applied standards, and it certainly
did not meet its burden of establishing that I engaged in research
misconduct by the required "preponderance of the evidence."

* The first two allegations address my summaries of the impact on native
peoples of two federal laws, the Allotment Act and the Indian Arts and
Crafts Act. In its 20-page analysis, the committee acknowledges that my
conclusions may be right but criticizes the nature of my citations and
faults me for having failed to publish a response to a particular
critic.  On the Allotment Act the committee acknowledges that I was
essentially correct and my accuser generally incorrect. However, the report
accuses me of getting the details wrong, despite the fact that I wrote only
a few paragraphs on the subject and, thus, did not address any details. For
this I am charged with falsification.

* The third charge concerns my statement that there is "strong
circumstantial evidence" that John Smith introduced smallpox among the
Wampanoags in the early 1600s. The committee took it upon itself to decide
that this was an "implausible" conclusion and that, therefore, I had not
cited to enough circumstantial evidence. This is characterized as both
falsification and fabrication.

* My two paragraph statement that in 1837 the army deliberately spread
smallpox among the Mandans at Fort Clark generated 44 pages of analysis on
the fourth allegation. While basically confirming my conclusions, the
committee expresses displeasure with the nature, thoroughness and, in some
cases, the sources of my citations. Although numerous scholars have made
the same general point without any citation, I am charged with
falsification, fabrication, and deviation from accepted reporting practices.

* In this connection, it should be noted that all of the indigenous
witnesses confirmed that my work conforms to the expectations of native
tradition concerning scholarship. An expert from the affected nations
confirmed my assertions concerning the oral traditions on the deliberate
infection of the Mandan, Arikara and Hidatsa peoples. Nonetheless, this
entirely non-Indian committee took it upon itself to declare that I "was
disrespectful of Indian oral traditions when dealing with the Mandan/Fort
Clark smallpox epidemic of 1837."

* The fifth charge involves the use of material from a pamphlet circulated
by a long-defunct environmental group called Dam the Dams, whose
representative stated he was happy to have the article used. In my initial
use, I gave Dam the Dams co-authorship credit and the evidence I presented
that this credit was removed by the publisher is uncontested. In all
subsequent use of the material, I gave credited Dam the Dams in my
footnotes. For this I am charged with plagiarism.

* The sixth allegation asserted that I plagiarized an article I had
ghostwritten for Rebecca Robbins. The committee concluded that I had not
plagiarized it, but that having allowed a junior scholar to take credit for
the original piece was a failure to comply with established standards of
authorship attribution. This despite the fact that ghostwriting is common
practice and the committee could point to no rule or standard that I had
actually violated.

* With respect to the seventh allegation, the committee concluded that I
had committed plagiarism by allowing portions of an essay written by Fay
Cohen to be published under the name of an Institute of which I was a
co-founder, in a volume edited by a third person. The fact that my role
consisted only of copy-editing the volume, that Cohen never complained to
the publisher, and that she acknowledged having been solicited by the
University to make this complaint were deemed irrelevant. Neither Cohen nor
the Dalhousie University report on the matter accused me of plagiarism; the
committee received no evidence (much less a preponderance) that I
plagiarized her material. On the record, my denial that I did so stands
uncontested.

The Message

I have published some two dozen books, 70 book chapters and scores of
articles containing a combined total of approximately 12,000 footnotes. I
doubt that any even marginally prolific scholar's publications could
withstand the type of scrutiny to which mine has been subjected. The
committee's assertion that the above-referenced allegations constitute - by
a preponderance of the evidence - the sort of serious research misconduct
which warrants revocation of tenure, termination, or long-term suspension
undermines the most fundamental guarantees of academic freedom as well as
the constitutional requirement that similarly situated persons receive
equal treatment.

This is but the latest volley in a national, indeed international, campaign
to discredit those who think critically and who bring alternative
perspectives to their research. The May 9 report generated by the
University of Colorado's investigative committee is designed to send a
clear message to all scholars: Lay low. Do not challenge orthodoxy. If you
do, expect to be targeted for elimination and understand that the
University will not be constrained by its own rules - or the Constitution -
in its attempts to silence you.