May 18, 2006

A little more on Ward Churchill

The comment thread on yesterday's story on Churchill at Inside Higher Ed is rather interesting, in a watching-a-train-wreck sort of way, because the defenders of Churchill (look for Unapologetically Tenured and Timothy Shortell) could not (at least as by this morning) address the points of Ralph Luker and others: If the deliberate pace of the investigating committee is not enough to insulate the investigation from hot-headed political pressures—if Churchill should be let off the hook for his misconduct because of the acknowledged inappropriate pressures—then there is no way to hold controversial faculty accountable if they transgress.

I have to thank Unapologetically Tenured and Shortell, though, for providing a clear example of the wrong standard to apply here. They essentially argue that we should hold universities to the same standards as criminal courts—where even minor violations of due process at any point in the investigation or proceedings end the case. That's not the right comparison, though. Academic due process is not the same as criminal due process, either in the degree of individual risk or the reasons why we care about due process. Those of us who are civil libertarians hold prosecutors to a "clean hands" standard because taking someone's liberty is extreme and requires extraordinary care. While we worry about the potential chilling effect of prosecutorial misconduct in some cases, that's not the universal motivation.

On the other hand, academic due process is not about liberty but about jobs. So there certainly needs to be fairness and procedural integrity, but not at the level that criminal investigations and trials must meet. I'm a union officer trained in grievance matters, but I don't think I've ever met a grievance officer who wants university discipline matters to follow any state's criminal rules of procedure.

In addition, the motivation is different. In academic due process, the primary motivation is to protect the academic freedom of faculty and to prevent the chilling effect of academic-freedom violations. I'm convinced the majority of Americans understand that need for protection from pressures, as long as they think it serves the academic role of teaching, research, and social whistleblowing. Were political pressures to effectively insulate individual faculty from any and all accountability, then I think we'd be going outside the bounds of that understanding. Academic freedom must therefore be crafted to allow appropriate collegial governance (including sanctions for transgressions, where appropriate) even in an environment of intense pressures.

The ordinary way that institutions provide a measure of due process is peer investigation and deliberation, both of which are reflections of our professional lives. (I'm not mentioning the other steps in the AAUP Red Book statements on discipline, because I'm looking at the aspects that insulate discipline from outside pressures, not the steps appropriate to guarantee internal due process.) We had both in the Ward Churchill case: a committee of five peers examined the allegations, and they did so over months of study, rather than the days or weeks that I'm sure the press and other parties may have wished. Did that provide enough due process in this case? Clearly, the committee members were aware of the pressure and discomfitted by it.

But that discomfort—something that was inevitable in this situation—did not prevent them from writing an outstanding report, one that was as careful as Ward Churchill's scholarship is not. Their performance under pressure proved the value of peer investigation and deliberation. Unless the defenders of Ward Churchill at this point can suggest an alternative set of mechanisms to allow investigation of a faculty member when there is political pressure raging around—and have some good reason to believe such investigations would do a better job than the peer committee in this case—I'll stick with peer investigations and deliberation.

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Posted in Academic freedom on May 18, 2006 8:43 AM |