Underfire: Dismissing controversial professor would set a frightening precedent

By Eugene Volokh, Rocky Mountain News, Feb. 5, 2005

Ward Churchill, a professor at the University of Colorado, has applauded the slaughter of those murdered in the World Trade Center attacks: He called them "little Eichmanns," and suggested that their deaths were a fitting penalty for their supposed complicity in America's supposed crimes. This is a morally depraved view, and deserves the harshest condemnation from all decent people.

Nonetheless, Churchill ought not be fired from his tenured professorship for this view. Justice Hugo Black was right to say that First Amendment rights "must be accorded to the ideas we hate or sooner or later they will be denied to the ideas we cherish." And the same is true of broader academic freedom principles, which flow from not just from the First Amendment rights of public university employees, but also from their tenure contracts and from professional standards of academic freedom.

If the Ward Churchills of the world are fired for their speech, disgusting as it is, that would be a perfect precedent for broader speech suppression in the future. Left-wing faculties and university administrations would find it much easier to fire right-wing professors for far less offensive statements, for instance for serious and valuable (even if sometimes misguided) challenges to the orthodox views on sexual orientation, sex or race. Given the political complexion of universities these days, this will end up happening to conservative professors more often than to liberals.

At the same time, other faculties and administrations - perhaps with the prodding of overzealous legislators - could use the precedent to fire even decent, serious critics of American foreign policy. In a legal and political system built on analogy and precedent, narrow restrictions on free speech do lead to larger ones. It's better to tolerate occasional fools and supporters of evil than to license universities to impose their orthodoxies on all their faculty members.

Nonetheless, while the Churchills of the world ought not be fired from their professorships, the university would have had no duty to keep him as chair of his department, if he hadn't resigned the post himself. A professor's job is to publish his own work and his own views, and to teach students, often in challenging and provocative ways. (There might be some boundaries on what can be taught in the classroom, but to my knowledge none of Churchill's offensive statements were made in class.)

But a chair's or a dean's job is to promote the academic mission of the university, among other things by fostering good relations with colleagues, students and the public. If the university concludes that keeping a Ward Churchill as the administrative face of the department will cast the school into disrepute, it can properly remove him as chair, though he would keep his right to say whatever incendiary things he likes as professor. And of course I'd say the same about department chairs who said controversial things I liked: A university should have fairly broad authority to strip them of their chairmanships, though not of their faculty positions.

More important, there have been claims raised that Churchill has deliberately misrepresented himself as a member of certain American Indian tribes, presumably to build credibility as a scholar and public intellectual speaking on behalf of the American Indian community. If this is so - and this is a big "if" - then he may well be properly disciplined or fired for such deliberate falsehoods, though not for his viewpoints.

For one recent example of such discipline, consider the case of Joseph Ellis, a Pulitzer Prize-winning historian and professor at Mount Holyoke College. Ellis apparently claimed to his students that he had served in Vietnam, which turned out not be so; he also supposedly overstated his role in various political movements. This led him to be suspended for a year from his teaching post.

Ellis' falsehoods weren't in his scholarship, and I doubt that they led students to be misinformed about important historical questions. Still, the university rightly concluded that such dishonesty merited punishment. Ellis wasn't fired, but he's a Pulitzer Prize winner and, as I understand, a historian of substantial quality. Had he done less good work, he might well have lost his job.

Deliberate falsehoods are generally not protected by the First Amendment. Nor do I think there's great danger to academic freedom in enforcing basic requirements of honesty in professors' public statements, particularly ones about their own life histories. There is some risk of error in adjudicating such controversies, but much less than the risk involved in deciding which viewpoints are so heinous as to be intolerable. Again, I stress that this is relevant only if he indeed made certain explicit and unambiguous factual claims about his being Indian or a member of some tribe, and those claims were indeed false.

Naturally, whoever fires or disciplines Churchill for such falsehoods, or supports such a firing, must be prepared to apply the same standard regardless of the professor's viewpoints. But I certainly would be prepared to apply such a standard across the board: Dishonesty by academics is culpable whether it's done by people with evil political ideologies or good ones.

So we need to protect faculty members' right to express even reprehensible viewpoints: That's the First Amendment deal that protects the ideas we cherish - or at least ones that we think need to be discussed and considered - by also protecting the ideas we hate. But universities need not be blind to a person's moral qualities or stature in the community when deciding whether to retain an administrator. And they need not keep scholars who deliberately misrepresent their own biographies.

Eugene Volokh is a professor at UCLA Law School. A version of this article appeared on his Web log, The Volokh Conspiracy (http://volokh.com/).