ACADEMIC FREEDOM ON TRIAL: NORMAN FINKELSTEIN AND THE MINORITY REPORT

08.09.2007
By Peg Birmingham
Professor of Philosophy
DePaul University

By now it is well-known that the minority report, written by the three faculty members in DePaul's Political Science Department who cast negative votes in Norman Finkelstein's tenure case, was heavily relied upon in the negative recommendation written by LAS Dean Chuck Suchar and in President Dennis Holtschneider's letter denying tenure. It is also well known that the department's majority report recommending tenure as well as the majority's rebuttal of the minority report received at best cursory attention or in the case of the rebuttal, ignored entirely. Because the issue of academic freedom is at the center of this tenure case (and with the Churchill firing these are dark days for academic freedom), it is important to take a closer look at the report's contents.

The minority report is comprised of three parts. The first two parts offer an analysis of Finkelstein's scholarly work, arguing that his scholarship is shoddy and substandard, suffused with personal attacks, and polemical rather than academic. The third part, "Violations of Collegiality" takes up the issue of Finkelstein's behavior as a colleague. The report concludes by arguing against tenure and promotion.

The overall analysis of the work is broken down into several categories including, "double standards," "red herrings," "misleading use of language," and "false dichotomies." The minority report finds evidence of shoddy scholarship on a total of 17 pages and two footnotes in a corpus of work that spans five books which together total well over a thousand pages. Finkelstein's work relies on an overwhelming amount of statistical data from a large and wide-ranging number of documents and reports. The minority report finds no evidence of faulty facts, sloppy citation, or incorrect data. In all cases, the evidence has to do with the conclusions drawn. One example is representative: under the category, "Assertion of claims inconsistent with the evidence he provides," the report points to "pages 126-7 of Image and Reality [where] Dr. Finkelstein quotes without any disclaimer U Thant's report of Arab fears of 'a massive attack on Syria' (emphasis added). A few lines later he posits that 'the alarms were almost certainly not false' (emphasis in original). In support of that conclusion he cites Michael Brecher's judgment that Israel 'would launch a limited retaliatory raid.' A limited retaliatory raid is not a massive attack, so Arab fears were indeed false." The minority report's emphasizes the word "massive" and then suggests that if this was rigorous scholarship, the "correct" conclusion would be that a limited attack renders Arab fears false (illegitimate?). But is this the reasonable conclusion to draw? Isn't it rather the case that most of us will become very alarmed and fearful if we have reason to believe our house or our country might come under even limited attack?

The analysis reads like a badly written undergraduate paper wherein the student thinks he or she has outsmarted the author by catching a few perceived inconsistencies, all the while not engaging with the essential arguments and thereby missing entirely the overall substance of the work. The minority report admits that the examples used to support the claim of shoddy academic work are "minor" but that "taken together and read in the context of the corpus of Dr, Finkelstein's writings, they raise in our view serious questions about whether this work meets scholarly standards." But several minor examples do not add up to any major critique of Finkelstein's work. In fact, taken together, the minor examples are glaring in just how minor they are.

The minority report selectively cites only two negative reviews, but does not so much as mention the many laudatory reviews of Finkelstein's scholarship. Immediately after citing two negative reviews of Beyond Chutzpah , the authors cut off any criticism of their own selective reporting by suggesting that the reader will criticize their tactics by claiming that the negative reviewers "disagree with his [Finkelstein's] interpretations or because they are Israeli apologists or because they have a political agenda." But of course the pertinent criticism is the one just made, namely, that there are numerous positive reviews of Finkelstein's work and in the service of intellectual honesty, the minority report ought to have acknowledged that fact and shown why these positive reviews are misguided. Moreover, the minority report does not address why the two external reviewers of Finkelstein's scholarship for the tenure application, two eminent scholars of Middle East politics and history, are misguided in their respective letters, each of which gives high praise to Finkelstein's scholarship. It should be noted that none of the authors of the report are experts in this field.

Acknowledging that perhaps their examples "may seem to be nitpicks," the authors go on to say that "they are meant to be illustrative of our assessment that Dr. Finkelstein's work is designed for advocacy rather than for scholarly enlightenment. While there is nothing wrong with advocacy per se, it should not come at the expense of scholarly standards." Insofar as Finkelstein's "slide towards advocacy and away from scholarship" served as part of the basis for President Holtschneider's letter denying tenure, it is worth stopping for a moment to reflect on this.

First, nowhere in the minority report do the authors address the question of how such allegedly substandard scholarly work passed peer review of two major and well respected presses: Verso and University of California. Secondly, it is clear that the real charge against Finkelstein here is that his scholarship lacks the impartial objectivity that the authors of the minority report seemingly view as necessary to academic scholarship. In other words, the charge is that his work slides towards advocacy because it is suffused with outrage over the lies and deceptions that form US-Israel policy, deceptions uncritically embraced by many "liberal" academics who favor Israel to the almost complete disregard of the real violence done to the Palestinian people. We arrive at the issue of "academic tone."

Here Hannah Arendt is instructive. Taken to task in a critical review by Eric Voegelin for her passionate and oftentimes angry tone in writing Origins of Totalitarianism, Arendt responds by asking if it is possible or even desirable to write sine ira et studio when writing of this event. Taking as an example the immense poverty of the British working classes during the early stages of the Industrial Revolution, Arendt writes, "If I describe these conditions without permitting my indignation to interfere, I have lifted this particular phenomenon out of its context in human society and have thereby robbed it of part of its nature, deprived it of one of its important inherent qualities. For to arouse indignation is one of the qualities of excessive poverty insofar as poverty occurs among human beings." For Arendt, "the sheer horror of contemporary political events, together with the even more horrible eventualities of the future…is the preliminary condition for political philosophy." Finkelstein understands this preliminary condition; he writes from out of the horror and outrage of the lies and deceptions that form the basis of so much of the violence and injustice done to the Palestinian people, understanding that to do otherwise would deprive his subject matter of its human context wherein as an inherent quality deception, violence, and injustice arouse indignation.

The minority report goes on to claim that Finkelstein's writings are "suffused with personal attacks." The authors rely almost exclusively on Finkelstein's "vendetta against Alan Dershowitz in which Dr. Finkelstein seems focused on demolishing Dershowitz's reputation and perhaps getting him fired, rather than showing where Derschowitz is in error." Here the report willfully disregards Finkelstein's painstakingly careful and relentless analysis of Dershowitz's errors in Beyond Chutzpah. Ironically, these charges ought to have been leveled against Dershowitz who has played an active and tireless role in attempting to destroy Finkelstein's reputation, who played a significant role in the negative tenure decision, and who has never been able to show where Finkelstein is in error despite hiring a coterie of lawyers to try to do just that.

Staying with the claim that Finkelstein's writings are filled with personal attacks, the minority report then argues that he impugned Benny Morris's reputation, despite its citing Finkelstein's praise for Morris's research with Finkelstein disagreeing only on how the findings were used. The report also does not like Finkelstein's critique of Lawrence Summers and Henry Louis Gates Jr., nor does it like the fact that Finkelstein called Wiesel and Kosinski "charlatans" and "frauds." The report gives no argument as to why one ought not on occasion to call into strongly worded question the motives of public intellectuals. Surely Norm Finkelstein is neither the first nor the last to call a fellow scholar or a public figure a charlatan or a fraud. Socrates, for example, fires the opening shot in the Apology by calling his accusers "liars" and "flatterers." One suspects that it is not the name-calling that the authors of the minority report find offensive but the people and the issues being called into question. One can imagine, for example, that had Finkelstein called the current US President a fraud or William Bennett a charlatan, no objections would have been raised, much less served as evidence of excessive nastiness in the public space. This is, of course, Finkelstein's point. This section of the report concludes with citations from a personal email that was never meant for the public eye; it ought not to have been included. No more needs to be said on this subject unless the authors of the minority report would like to open their emails for public scrutiny.

It is clear that despite their initial disclaimer and several protests to the contrary in the body of the report, the authors of the minority report do not like Finkelstein's scholarly conclusions. The general charge of their analysis is that Finkelstein does not present the Israeli-Palestinian conflict fairly; he presents stronger evidence against Israel than is warranted; he presents weak arguments that favor the Palestinian side. All this of course mirrors the third charge leveled against Socrates in the Apology: "he makes the weaker argument stronger." When teaching this work, I ask my students why a person on trial for his life would fail to defend himself against this charge. The students always understand: it is impossible for Socrates (or any of us) charged with such a "crime" to offer a defense as any argument will be viewed as manipulative by accusers whose real motive is to silence this gadfly. Socrates offers the strongest arguments he can muster and it is up to the listeners and readers to respond with better arguments, if they can. None of this occurred with the authors of the minority report. Not agreeing with his conclusions, the authors bring Finkelstein up on charges of weak scholarship and nastiness in the public sphere; they offer the academic equivalence of the cup of hemlock. Socrates ends his defense by saying, "I leave it up to the dogs of Hades to decide." History will be the judge.

In its penultimate section, "Violations of Collegiality," the minority report shows its other hand. The personal is the political: "Dr. Finkelstein's nastiness in his polemical work overlaps with serious failures of collegiality towards those in the DePaul community whom he construes as being his enemies. The three members of the department who have signed this report were among those who he viewed in this manner well before his tenure application was considered." The authors are quite explicit: Finkelstein's mean-spiritedness towards the three authors of the minority report is reflected in the mean-spiritedness of the work. Not only do the three authors not like his conclusions regarding US-Israel policy, they do not like him. The three charges: Finkelstein shuts his office door, refusing to talk to colleagues with whom he disagrees; he gets overly angry about an annual evaluation; he does not handle contract disputes well. But to use one of the report's own categories, "double standards," it might very well be the case that one of the authors, angry that Finkelstein was hired rather than the candidate he supported, has been refusing to speak to Finkelstein, shutting his office door and waiting for just such an opportunity to help assemble the charges; or perhaps it is the second author of the report, the former chair of the department, who is angry for having been questioned about an annual evaluation and who exacted his revenge by inviting Derschowitz into the tenure process; and finally, perhaps it is the third author of the report, the former LAS Dean, who remains furious over a contract dispute, a dispute that was settled by then Provost John Kozak, (whom the third author intensely disliked), ruling in Finkelstein's favor.

The report expands the charge of non-collegiality by pointing to threats to the administration and an inappropriate word used against a staff person. Here the report falls into innuendo and unsubstantiated claims. No staff person has come forth to verify the charge and there is no specificity or substantiation regarding the supposed threats. What were the threats and in response to what? Perhaps the actions of the administration warranted threats. No details are given. The report ends with baseless speculation that junior colleagues and staff personnel might be threatened in the future by a tenured and therefore unrestrained Finkelstein, a speculation dismissed by the junior, untenured faculty in DePaul's Political Science department, many of whom signed a second majority report rebutting the minority report-a rebuttal that was not allowed to be part of Finkelstein's tenure materials sent to the University Board. It must also be asked how a professor who undisputedly receives the highest teaching evaluations in DePaul's Political Science Department and who has been nominated by his students for an excellence in teaching award every year since time of hire poses such danger in the office corridors.

In its 1999 statement, "On Collegiality as a Criterion for Faculty Evaluation," the AAUP is clear that the category of "collegiality" ought not to be used in the evaluation of tenure. Indeed, in his June 22, 2007 letter to President Holtschneider, Leo Welch, President of AAUP Illinois-Conference, reminds Holtschneider of this statement: "Historically, "collegiality" has not infrequently been associated with ensuring homogeneity, and hence with practices that exclude persons on the basis of their differences from a perceived norm." Welch's letter quotes from the June 2006 report of DePaul University's Promotion and Tenure Policy Committee which affirms the AAUP guideline: "The Faculty Handbook does not incorporate collegiality as a criterion in promotion and tenure reviews."

Finally, in a significant misquote that goes straight to the issue of academic freedom, the report concludes, "because of the finality of such a decision, the Faculty Handbook states that 'the University retains the utmost latitude in determining which non-tenured faculty members will be retained' and 'should be left without a reasonable doubt as to the faculty member's qualifications for tenure before it reaches a favorable decision on a reappointment to which tenure is attached.'" DePaul's Faculty Handbook actually states, "Consequently, the university has the utmost latitude, within the limits of academic freedom, in determining which non tenured faculty members will be retained." Clearly, the omission of the "within the limits of academic freedom" clause was not accidental. This omission is the damning detail-the authors of the report are well aware that they are violating Finkelstein's academic freedom. Did they think by omitting the clause no one would notice?

But many have noticed and are outraged. It is clear that the minority report seriously violates Finkelstein's academic freedom to tell the truth as he understands it. His scholarship draws on a copious number of documents and testimonies to establish a body of factual truth regarding the Israel-Palestinian conflict as well as US-Israel policy. None of these facts are called into question in the minority report; rather, the report's thinly veiled charge is that Finkelstein ought not to have brought these unwelcome truths into the public space. Here again Arendt is helpful. In her essay, "Truth and Politics," Arendt responds to the firestorm that erupted with the publication of Eichmann in Jerusalem, taking up the question of whether she ought to have told the truth in her trial report given that it caused such pain and controversy for so many. Numerous of her critics asked, "Would it not have been better to sacrifice a bit of the truth?" Her answer is unambiguous: "no human world destined to outlast the short life span of mortals within it will ever be able to survive without men willing to do what Herodotus was the first to undertake consciously-namely, to say what is. No permanence, no perseverance in existence, can even be conceived of without men willing to testify to what is and appears to them because it is." The bedrock of academic freedom lies in this Arendtian insight: the survival of the world depends upon its truth tellers. It is not too much to claim that Norm Finkelstein's truth-telling, his insistence on the stubborn facts, has helped guarantee the survival of the Palestinian world in the face of so many deceptions that threaten its continued existence.

And so now it is up to the dogs of Hades. Although denied tenure at DePaul, I suspect that like Socrates, Finkelstein will carry the historical day. Like Socrates, he is the gadfly on the back of the twin horses of Israel and the United States; he is the midwife who exposes as 'wind-eggs' so much that passes for truth about the Israel-Palestinian conflict. History will judge him well. It is DePaul's profound loss and shame that he is no longer a member of our faculty. As for academic freedom at DePaul, the dogs are barking.

Peg Birmingham
Professor of Philosophy
DePaul University
Chicago