Bruce Fein argues that “CU would be perfectly within its rights if it fired Ward Churchill,” a legal argument that I’m not qualified to or interested in debating. As to whether he should be terminated, though, Fein offers only this:
Rational discourse and enlightened government would be blunted if the likes of Churchill dominated the faculty. The youth of America is too important for the university to tolerate the professor as an example for students to emulate. Indeed, the purpose of free speech – to make the deliberative forces prevail over the arbitrary – would be advanced by returning Churchill to private pursuits funded by private resources. And freedom of speech would rejoice, not weep.
Of course, as the huge swarm over his remarks made clear, the likes of Churchill don’t dominate the faculty. Contrary to mythology, Churchill is not representative of the academy. While it’s true that college faculties almost everywhere are well to the left of the community, the vast majority are serious scholars and teachers who operate well within the bounds of civil discourse.
Eugene Volokh makes an eloquent case why Ward shouldn’t be let go:
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.
Furthermore, one could argue that, in small doses, these types of remarks actually serve the interests of the academy. I’m guessing that CU students are debating the issues that Churchill raised much more vigorously than before, often with the guidance of their other professors. Most students are bright enough and sufficiently independent minded to dismiss Churchill’s arguments as the vile rantings they are. My guess is that Churchill’s remarks, far from turning students into raving America haters, have unwittingly caused hundreds of students to critically examine their pre-existing patriotism and come away with it bolstered.
(In a related blog post, Volokh offers arguments as to why the professoriate is different from other jobs.)
