Phi Beta Cons

Controversial Speech = Immunity from Scrutiny?

Things seem to be heading for a showdown in Colorado.  The president of the university is set to fire Ward Churchill, and his supporters are screaming that the case represents an assault on academic freedom:

“The University of Colorado president has now set in motion a process that is widely expected to lead to Churchill’s dismissal as a tenured professor before students return in the fall. As his supporters mount a last effort to protect him — in the court of public opinion, or quite likely in the courts — they are focused on issues of freedom of expression. Supporters at Colorado’s Boulder campus, where Churchill teaches ethnic studies, and Native American scholars nationwide are calling the campaign to oust him attacks on academic freedom.”

Amidst all the heated rhetoric, the legal principles are actually pretty clear.  Controversial speech is not a “get out of jail free card” when there is evidence of actual wrongdoing unrelated to free speech.  In other words, when a radical professor (on the left or right) draws attention to himself through inflammatory comments, they simply aren’t immune from the consequences of the public scrutiny that follows.  Plagiarism, fraud, and other offenses aren’t magically erased from the record or rendered irrelevant simply because they were discovered in the midst of the white-hot intensity of a public debate.
At the same time, however, the existence of wrongdoing unrelated to speech doesn’t then immunize the university from legal scrutiny if and when it does take action against the professor.  In a large university, there are almost certainly other examples of similar wrongdoing by (less notorious) faculty members.  Churchill’s punishment should be in line with the punishment given less prominent professors for similar offenses.  In other words, his controversial speech can’t function as a “penalty enhancer.” 
The best analogy is to a private sector employment discrimination case.  Imagine a scenario where an employee is terminated then claims he was terminated because of his race.  “Not so,” says the employer, “He was terminated because he showed up late for work last Friday.”  Even if the employee was late on Friday, the inquiry isn’t over.  If other employees of different races were late as much or more than the terminated employee (and the sole stated reason for the termination was lateness), then the terminated employee has an excellent argument that the stated justification for the termination was a mere “pretext.”  If and when Churchill files suit against the university, I’m betting that the case will center not on whether Churchill’s scholarship was actually worthy (a court won’t care) but whether (a) he received all the process he was due; and (b) his termination was in line with previous punishments or merely a pretextual method of removing an embarrassment to the university community.

David French — David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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