People whose judgment I respect have taken widely divergent positions on the decision by Judge Naves in the Ward Churchill case. Here, for example, we have Peter Wood arguing in favor of the decision, followed by a lengthy comment by Tom Wood taking issue with it.

Peter writes that central issue is the scope of academic freedom, but I can’t quite agree. I think the central issue is whether something akin to the exclusionary rule in criminal law will apply to academics. Churchill’s argument boiled down to saying that although Colorado found conclusive evidence of his transgressions, university officials had no “search warrant” to be looking into his record at all, because they examined it only after his demented “little Eichmanns” essay came to their attention. Churchill’s lawyer got the jury to buy that argument, but juries have bought lots of ridiculous arguments. Heck, the Supreme Court buys lots of ridiculous arguments.

In criminal law, the exclusionary rule tosses out evidence obtained from illegal searches and seizures. Strong arguments have been made both for and against the exclusionary rule, but I see no reason to export it from the realm of criminal law, where a defendant’s life or liberty is at stake, into civil law. If school officials conclude that an individual is not fit to teach or continue to teach there, it shouldn’t matter how they came to that conclusion.

Colorado should never have hired Churchill, a fraud and poseur. If those responsible for the search that led to his employment had done their work diligently, his application would have been tossed. But they didn’t and now the school understands that it blundered. It does not want him on the faculty. Judge Naves’s ruling that he won’t give Churchill the remedy of reinstatement seems perfectly consistent with the law of remedies that courts will not order specific performance in cases involving personal services. That is, courts will not remedy a breach of contract by compelling an individual to work for another, or compelling an employer to accept the work of someone it distrusts. Sensibly, courts stay out of trying to oversee employment relationships, especially where the work is not routine. Therefore, I applaud Judge Naves for deciding that Colorado does not have to put an embarrassing charlatan back on its faculty.

Comments encouraged.