Summary of Fallacies in the University of Colorado Investigative Committee Report of May 9, 2006

The May 9, 2006 Report of the University of Colorado (CU) Investigative Committee is but the latest step in CU’s ongoing attempt to fire me for political speech and, more fundamentally, for scholarship which challenges the orthodox "canon" of historical truth.

The investigative committee abandoned all semblance of due process and equal protection mandated by both the Constitution and the University’s own rules, in the process betraying the most basic principles of academic freedom.

Rather than assessing my work in terms of the methods and procedures of my discipline, the committee – which included no one with expertise in American Indian Studies – chose to determine for itself the "historical truth" about disputed matters. Unable to condemn my substantive conclusions, it engaged in a detailed post hoc critique of my citations.

The committee’s recommendation of harsh sanctions appears to have been driven primarily by my "attitude," not by the specific conduct at issue. I was presented with the "Catch-22" option of apologizing for things I did not do or being condemned for being insufficiently contrite.

In this process, the investigative committee abandoned its mandate to serve as a nonadversarial information-seeking body, instead taking upon itself the role of both prosecutor and judge. It then did exactly what it accuses me of doing: it tailored its report to fit its conclusions. As a result, the document contains numerous false statements, misrepresentations of fact, and internal contradictions; it suppresses evidence and employs faulty logic to conclude that I engaged in research misconduct.

A few of the most glaring problems with the report are summarized below:

Punishment for Constitutionally Protected Speech

Since January 2005, University administrators have been trying to fire me for expressing my political opinions, directly violating both the First Amendment and the Regent’s own rules on academic freedom. Having reluctantly concluded that they could not fire me directly for my speech, they resorted to trial by media, soliciting allegations of misconduct to use as a pretext.

Some of this involved encouraging the media to generate allegations. Interim Chancellor DiStefano as "complainant" then forwarded these charges to the Committee. Other allegations were directly solicited by CU administrators, including law school dean David Getches, who had already made his bias against me clear. Some came from known political adversaries, but their malicious or frivolous nature was disregarded.

None of these were legitimate accusations the University had an "obligation" to investigate; they were simply a pretext to penalize constitutionally protected speech. All of the allegations at issue are based on work I did years, sometimes decades, ago; had there been any substance to them, they would have been investigated long before now.

Under University rules, this report was part of a confidential personnel process. The fact that the committee convened a press conference to announce its findings and University officials immediately distributed the full report is but one indication of their willingness to violate my rights, as well as their own rules, in order to chill my speech and discredit my scholarship.

Further evidencing retaliatory motivation, just as this investigative phase was wrapping up the University announced that it is initiating yet another investigation into "new allegations" it received over a year ago. The message is clear: if you do not give up, we will investigate you forever.

The Investigative Committee and Its Process

Committee Composition: The committee consisted primarily of CU insiders and included no one with expertise in my field.

Given the pervasive bias of CU administrators, I requested an outside committee and, because of bias exhibited by law school dean Getches as well as law professor cum columnist Paul Campos, I specifically objected to the inclusion of CU law faculty. The committee, however, was composed of three CU insiders, chaired by law professor (and former prosecutor) Mimi Wesson.

The committee’s mandate was to establish whether my scholarship complied with the accepted practices in my discipline, American Indian Studies – a subset of Ethnic Studies.

Ethnic Studies programs were introduced into universities precisely because the standard practices of mainstream disciplines (history, sociology, anthropology, etc.) had failed to incorporate historical and contemporary knowledge they found inconvenient, thereby producing inaccurate and misleading "academic truth." To rectify this, Ethnic Studies not only bases itself in the perspectives of diverse communities, but employs its own set of research practices and methodologies.

My job is thus to bring a critical indigenous understanding to my teaching and scholarship. However, the committee included no American Indians and no one with expertise in American Indian Studies, despite the fact that eminently qualified American Indian scholars were available and willing to serve.

Procedural Deficiencies: Neither the allegations nor the standards applied were clearly identified, and the committee artificially restricted my ability to respond.

I was expected to present a defense without knowing clearly which allegations were at issue. Furthermore, during the investigation, the committee expanded the scope of certain allegations without giving me notice or adequate opportunity to respond.

I was expected to defend my work before being informed of the standards being applied. The report says American Historical Association (AHA) protocols and other unspecified standards were utilized, falsely claiming that I agreed to AHA standards and never revealing which other standards were applied.

I was prevented from speaking directly to expert witnesses, even my own, and was required to e-mail my questions across the room to the committee chair. This caused considerable confusion; allowed the chair to "interpret" what I was asking, sometimes fundamentally changing my meaning; and generally impaired my ability to elicit information.

Although the rules allow for extensions of time, the committee denied my repeated requests for an additional 30 days in which to complete my responses, rigidly insisting on a 120-day time frame designed for much more limited investigations. I was forced to spend much of this period trying to determine which charges and standards were at issue, and even more on an apparently futile attempt to introduce committee members to the foundational concepts of American Indian Studies and, more generally, the discipline of Ethnic Studies. As a result, I was prevented from responding to the charges in a thorough manner.

The Report

Violations of the Committee’s Mandate: The committee abandoned its responsibility to serve as a nonadversarial fact-finding body, instead retroactively imposing its views as to what and how I should have cited in support of my historical analysis, condemning my attitude rather than my scholarship, and tailoring the report to justify its conclusions.

According to University rules, the investigation was to be nonadversarial. Instead, the committee functioned in a prosecutorial manner. Rather than simply reporting its factual findings, the committee asserted a prerogative to recommend sanctions. Having done this, it then tailored its presentation to support its advocacy of penalties entirely disproportionate even to their own findings.

The committee’s mandate was not to determine the "truth" of disputed historical matters. Yet the bulk of this report, written by persons without expertise in the subject matter, is devoted to their analysis of the history at issue. Having concluded, in most cases, that I was substantively accurate, they resort to a detailed critique of my use of sources and the nature of my footnotes.

Much of my work takes the form of synthesis; in other words, connecting-the-dots with respect to a broad range of information. By definition, one cannot delve into minute detail with respect to each piece or the "big picture" will be lost. Yet this is precisely what the report condemns me for. (Witness the 40 pages of analysis it devotes to the two paragraphs I wrote on Fort Clark.) If this standard were to be uniformly applied, no scholar could engage in the sort of analysis which brings together apparently disparate information to illustrate fundamental problems with the status quo.

The committee’s charge was to investigate whether my work comported with accepted practices in my discipline. Instead, it applied standards from a very different discipline, as well as unnamed standards. In some instances these appear to have been the standards used in legal publications; in other cases they seem more akin to "gut" reactions. The bottom line is that the committee retroactively imposed standards in ways that have never been applied to other scholars at CU. Nationally, this has been done in only in a few blatantly political cases, such as those of David Abraham and Michael Bellesiles.

Distortion and Suppression of Evidence: The Committee disregarded and/or falsely characterized much of the evidence presented, using the slightest of pretexts to conclude that I engaged in significant research misconduct.

The committee did not have evidence that I failed to comply with their arbitrarily selected and retroactively applied standards, and it certainly did not meet its burden of establishing that I engaged in research misconduct by the required "preponderance of the evidence." The first two allegations address my summaries of the impact on native peoples of two federal laws, the Allotment Act and the Indian Arts and Crafts Act. In its 20-page analysis, the committee acknowledges that my conclusions may be right but criticizes the nature of my citations and faults me for having failed to publish a response to a particular critic. On the Allotment Act the committee acknowledges that I was essentially correct and my accuser generally incorrect. However, the report accuses me of getting the details wrong, despite the fact that I wrote only a few paragraphs on the subject and, thus, did not address any details. For this I am charged with falsification.

The third charge concerns my statement that there is "strong circumstantial evidence" that John Smith introduced smallpox among the Wampanoags in the early 1600s. The committee took it upon itself to decide that this was an "implausible" conclusion and that, therefore, I had not cited to enough circumstantial evidence. This is characterized as both falsification and fabrication.

My two paragraph statement that in 1837 the army deliberately spread smallpox among the Mandans at Fort Clark generated 44 pages of analysis on the fourth allegation. While basically confirming my conclusions, the committee expresses displeasure with the nature, thoroughness and, in some cases, the sources of my citations. Although numerous scholars have made the same general point without any citation, I am charged with falsification, fabrication, and deviation from accepted reporting practices.

In this connection, it should be noted that all of the indigenous witnesses confirmed that my work conforms to the expectations of native tradition concerning scholarship. An expert from the affected nations confirmed my assertions concerning the oral traditions on the deliberate infection of the Mandan, Arikara and Hidatsa peoples. Nonetheless, this entirely non-Indian committee took it upon itself to declare that I "was disrespectful of Indian oral traditions when dealing with the Mandan/Fort Clark smallpox epidemic of 1837."

The fifth charge involves the use of material from a pamphlet circulated by a long-defunct environmental group called Dam the Dams, whose representative stated he was happy to have the article used. In my initial use, I gave Dam the Dams co-authorship credit and the evidence I presented that this credit was removed by the publisher is uncontested. In all subsequent use of the material, I gave credited Dam the Dams in my footnotes. For this I am charged with plagiarism.

The sixth allegation asserted that I plagiarized an article I had ghostwritten for Rebecca Robbins. The committee concluded that I had not plagiarized it, but that having allowed a junior scholar to take credit for the original piece was a failure to comply with established standards of authorship attribution. This despite the fact that ghostwriting is common practice and the committee could point to no rule or standard that I had actually violated.

With respect to the seventh allegation, the committee concluded that I had committed plagiarism by allowing portions of an essay written by Fay Cohen to be published under the name of an Institute of which I was a co-founder, in a volume edited by a third person. The fact that my role consisted only of copy-editing the volume, that Cohen never complained to the publisher, and that she acknowledged having been solicited by the University to make this complaint were deemed irrelevant. Neither Cohen nor the Dalhousie University report on the matter accused me of plagiarism; the committee received no evidence (much less a preponderance) that I plagiarized her material. On the record, my denial that I did so stands uncontested.

The Message

I have published some two dozen books, 70 book chapters and scores of articles containing a combined total of approximately 12,000 footnotes. I doubt that any even marginally prolific scholar’s publications could withstand the type of scrutiny to which mine has been subjected. The committee’s assertion that the above-referenced allegations constitute – by a preponderance of the evidence – the sort of serious research misconduct which warrants revocation of tenure, termination, or long-term suspension undermines the most fundamental guarantees of academic freedom as well as the constitutional requirement that similarly situated persons receive equal treatment.

This is but the latest volley in a national, indeed international, campaign to discredit those who think critically and who bring alternative perspectives to their research. The May 9 report generated by the University of Colorado’s investigative committee is designed to send a clear message to all scholars: Lay low. Do not challenge orthodoxy. If you do, expect to be targeted for elimination and understand that the University will not be constrained by its own rules – or the Constitution – in its attempts to silence you.