"Ward Churchill Redux" Stanley Fish, New York Times

Last Thursday, a jury in Denver ruled that the termination of activist-teacher Ward Churchill by the University of Colorado had been wrongful (a term of art) even though a committee of his faculty peers had found him guilty of a variety of sins. The verdict did not surprise me because I had read the committee’s report and found it less an indictment of Churchill than an example of a perfectly ordinary squabble about research methods and the handling of evidence. The accusations that fill its pages are the kind scholars regularly hurl at their polemical opponents. It’s part of the game. But in most cases, after you’ve trashed the guy’s work in a book or a review, you don’t get to fire him. Which is good, because if the standards for dismissal adopted by the Churchill committee were generally in force, hardly any of us professors would have jobs.

At least two reviewers of my 2001 book “How Milton Works” declared that my reading of “Paradise Lost” rests on an unproven assumption that Milton repeatedly and designedly punned on the homonyms “raised” (elevated), “razed” (destroyed) and “rased” (erased). I was accused of having fabricated these puns out of thin air and of building on the fabrication an interpretive house of cards that fell apart at the slightest touch of rationality and evidence. I use the criticism of my own work as an example because to talk about the many others who have been accused of incompetence, ignorance, falsification, plagiarism and worse would be bad form. And it wouldn’t prove anything much except that when academics assess one another they routinely say things like, “Professor A obviously has not read the primary sources”; “Professor B draws conclusions the evidence does not support”; “Professor C engages in fanciful speculations and then pretends to build a solid case; he’s just making it up”; “Professor D does not acknowledge that he stole his argument from Professor E who was his teacher (or his student).”

The scholars who are the objects of these strictures do not seem to suffer much on account of them, in part because they can almost always point to positive reviews on the other side, in part because harsh and even scabrous judgments are understood to be more or less par for the course. And I won’t even go into the roster of big-time historians who in recent years have been charged with (and in some instances confessed to) plagiarism, distortion and downright lying. With the exception of one, these academic malfeasants are still plying their trades, receiving awards and even pontificating on television. Why, given these examples of crimes or errors apparently forgiven, did Ward lose his job (he may now regain it) when all he was accused of was playing fast and loose with the facts, fudging his sources and going from A to D in his arguments without bothering to stop at B and C? In short, standard stuff.

The answer Churchill’s partisans would give (and in the end it may be the right answer) is “politics.” After all, they say, there wouldn’t have been any special investigative committee poring over Churchill’s 12 single-author books, many edited collections and 100-plus articles had he not published an Internet essay on Sept. 12, 2001, saying that the attacks on the World Trade towers and the Pentagon were instances of “the chickens coming home to roost” and that those who worked and died in the towers were willing agents of the United States’ “global empire” and its malign policies and could therefore be thought of as “little Eichmanns.” These incendiary remarks were not widely broadcast until four years later, when Bill O’Reilly and other conservative commentators brought them to the public’s attention. The reaction was immediate. Bill Owens, governor of Colorado, called university president Elizabeth Hoffman and ordered her to fire Churchill. She replied, “You know I can’t do that.” (Not long after, she was forced to resign.)

The reason she couldn’t do it is simple. A public employee cannot be fired for extramural speech of which the government (in this case Gov. Owens) disapproves. It’s unconstitutional. A public employee can be fired, however, for activities that indicate unfitness for the position he or she holds; and after flirting with the idea of a buyout, the university, aware that questions had been raised about Churchill’s scholarship, appointed a committee to review and assess his work, no doubt in the hope that something appropriately damning would be found. It was, or so the committee said. It found inaccuracies in Churchill’s account of the General Allotment Act of 1887, a piece of legislation generally considered to be a part of an extended effort to weaken the force of Native American culture. In his discussion of the act, Churchill described it as a “eugenics code” that uses the “Indian blood quantum requirement” to achieve its end. But there is no mention of any “blood quantum” requirement in the text. Indeed, the act “contained no definition of Indian whatsoever.”

But then, after having established what could possibly be classified as a misrepresentation, the committee turned back in Churchill’s direction, and allowed that while the blood quantum requirement was not “expressly” stated, there was some force to Churchill’s contention that it is “somehow implied.” “In this respect,” the committee continued, there “is more truth to part of Professor Churchill’s claim” than his critics are “prepared to credit.” Still Churchill, the committee went on to say, was factually wrong when he says of the Act that it introduced “for the first time” the “federal imposition of racial Indian ancestry” as a device designed to force assimilation. That happened, the committee reported, 40 years earlier. So that while Churchill gets “the general point correct,” he “gets the historical details wrong.” Moreover, when his errors were pointed out by another researcher in the field, Churchill simply ceased making the erroneous claims and “offered no public retraction or correction.” The conclusion? “Professor Churchill deliberately embellished his broad, and otherwise accurate or, at least reasonable, historic claims regarding the Allotment Act of 1887 with details for which he offered no reliable independent support.”

That’s it? He didn’t verify some details and he didn’t denounce himself? There must be something else and there is. Churchill, the committee noted, argues that the U.S. army, among others, “intentionally introduced the smallpox virus to Native American tribes,” and he claims also that circumstantial evidence implicates John Smith (of Pocahontas fame) in this outrage. The committee found that with respect to Smith, Churchill “did not connect the dots in his proposed set of circumstantial evidence.” As for the allegation that that the army spread smallpox by knowingly distributing infected blankets, the committee found no support in written records, but notes that Native American oral traditions rehearse and pass down this story, which has at least one documented source in British General Jeffrey Amherst’s suggestion in 1763 that infected blankets be given to hostile Indians.

The conclusion? “We do not find academic misconduct with respect to his general claim that the U.S. Army deliberately spread smallpox.” In addition, the committee acknowledges that “early accounts of what was said by Indians involved in that situation and certain native oral traditions provide some basis for [Churchill’s] interpretation.” In short, it seems for an instant that Churchill is going to be declared (relatively) innocent of the most serious charges against him. But after noting that he cited sources that do not support his argument and failed to document his assertion that up to 400,000 Indians died in the smallpox epidemic, the committee turned severe and declared, “We therefore find by a preponderance of the evidence a pattern of deliberate academic misconduct involving falsification, fabrication, and serious deviation from accepted practices.” On the evidence of its own account the committee does not seem to have earned its “therefore.”

The question of “accepted practices” is raised again in a particularly focused form when the committee considers the issue of Churchill’s “ghostwriting.” On several occasions Churchill wrote essays to which others put their names and then, at a later date, he cited those essays in support of an argument he was making. The committee decided that a charge of plagiarism could not be sustained since it is not plagiarism to cite ones own work (even if it bears another’s name). That does not dispose of the issue, however, because in the committee’s view “ghostwriting” is itself a “form of misconduct” that fails “to comply with established practices” and deceives readers into thinking that an author has independent authority for his assertions, when in reality the only authority he has is his own. Churchill’s response came in two parts. First he pointed out that university regulations (Colorado’s or anyone else’s) do not contain guidelines relating to ghostwriting. There seems, therefore, to be no “established” practice for him to violate. Second, he challenged the assertion that a text he wrote cannot be properly cited as independent support for something he is writing in the present.

He argued (during the committee hearing and in Works and Days, 2009) that what ghostwriters do in the academy and elsewhere is give voice to the views and conclusions of others. All the ghostwriter does is supply the prose; the ideas and contentions belong to the third party, who, if she did not agree to “own” the sentiments, would decline to affix her name to them. Thus when the ghostwriter subsequently cites to the text of which he has been merely the midwife, he is citing not to himself but to the person to whose ideas he gave expression. “It follows that ghostwriters are under no obligation . . . to attribute authorship to themselves when quoting/citing material they’ve ghostwritten.” Well, that’s a little tricky, but it is an argument, and one that committee members, no doubt, would have a response to. But all that means is that there would be another round of the academic back-and-forth one finds in innumerable, books, essays, symposiums, panel discussions — all of which are routinely marked by accusations of shoddy practices and distortions of evidence, but none of which is marked by the demand that the person on the other side of the question from you be fired and drummed out of the academy.

There is, as I think I’ve shown, a disconnect in the report between its often nuanced considerations of the questions raised in and by Churchill’s work, and the conclusion, announced in a parody of a judicial verdict, that he has committed crimes worthy of dismissal, if not of flogging. It is almost as if the committee members were going along happily doing what they usually do in their academic work — considering , parsing and evaluating arguments — and then suddenly remembering that they were there for another purpose to which they hastily turn. Oh, yes, we’re supposed to judge him; let’s say he’s guilty. I can easily imagine the entire affair being made into a teaching aid — a casebook containing Churchill’s “little Eichmanns” essay, the responses to it by politicians, columnists and fellow academics, assessments of Churchill’s other writings by friends and foes, the investigative committee’s report, responses to the report (one group of academics led by Eric Cheyfitz, a chaired professor at Cornell, has formally charged the committee itself with research misconduct), the trial record, the verdict, reactions to the verdict, etc.

You could teach a whole course — probably more than one — from such a compilation and one of the questions raised in such a course would be the question I have been asking: How did a garden-variety academic quarrel about sources,evidence and documentation complete with a lot of huffing and puffing by everyone get elevated first into a review of the entire life of a tenured academic and then into a court case when that academic was terminated. How and why did it get that far? I said earlier that the answer Churchill partisans would give is “politics.” It is also the answer the jury gave. It was the jury’s task to determine whether Churchill’s dismissal would have occurred independently of the adverse political response to his constitutionally protected statements. In the ordinary academic course of things would his writings have been subject to the extended and minute scrutiny that led to the committee’s recommendations? Had the governor not called Hoffman, had state representatives not appeared on TV to call for Churchill’s head, had commentators all over the country not vilified Churchill for his 9/11 views, would any of this have happened.? The answer seems obvious to me and it has now been given authoritative form in the jury’s verdict.

Let me add (I hope it would be unnecessary) that nothing I have said should be taken either as a judgment (positive or negative) on Churchill’s work or as a questioning of the committee’s motives. I am not competent to judge Churchill’s writings and I express no view of them. And I have no doubts at all about the integrity of the committee members. They just got caught up in a circus that should have never come to town.