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Brown David v. White Goliath
By Elizabeth Martinez
You have a chance in a hundred of winning, people told Chicano historian Rudy Acuna when he filed suit in 1992 against the University of California Regents for discrimination based on his political work, race, and age. No person of color had ever managed to bring rich, powerful UC to trial. But how can I not try? Acuna would answer. How can I tell one of my students to fight injustice, or report a rape, or whatever, and not do it myself?
Four long years later, last October 30, Acuna walked out of a Los Angeles federal courtroom the victor against UC. An activist professor of Chicano Studies, with a crew of unpaid, mostly Chicano/a lawyers, defeated those same Regents who had voted a few months earlier to abolish affirmative action. As some observers commented, it was a brown David triumphing over a white Goliath.
Many also saw Acuna's victory as a win for all progressive people in today's battle against reactionary control of education and ideology. It represented a strong challenge from below to the upper-class view of scholarship in general and of history in particular. It affirmed Chicano Studies. It was a ringing call to desegregate the University of California -- its administrators, faculty, staff, workers.
The Acuna case also brought to light an astounding record of abused power, in which UC has used lies, dishonest procedures, character assassination, retaliation against dissidents, and tons of taxpayer dollars to maintain classist, racist, and sexist practices.
The saga is far from over. Just two weeks after the Acuna victory, UC's lawyers moved that the judge either throw out the jury's unanimous verdict for Acuna and rule for UC -- or order a new trial. They maintained that the jury had a complete lack of substantive evidence to support its verdict. UC attorneys have publicly said the jury acted too emotionally and was too racially diverse. During the trial they publicly stated that the jury was too working-class.
The eight-person jury (customary for a civil suit in federal court) consisted of four Latinos, one African American, one Filipino, one Asian/Anglo, and one Anglo. Apparently the masters of academia, like other masters, do not appreciate the occasional fruits of today's rapidly changing demographics. So those jurors had to be demeaned as emotional and working-class.
Other events have confirmed UC's above-the-law arrogance. In late November, the Faculty Legislature of UC Santa Barbara (UCSB), the campus where Acuna had suffered discrimination, voted to thank UC for going to court and defending its procedures. This unprecedented move -- like nothing ever seen before in UCSB history -- signified a closing of ranks against any and all challengers. Information Bulletins prepared by UC attorneys and loaded with attacks on Acuna's character have been distributed on the Santa Barbara campus. Their goal is to prevent him from being granted an appointment at UCSB now that he has won in court.
How did the extraordinary confrontation of Acuna v. UC Regents come about? The story begins quietly enough, in 1990, when students at UC Santa Barbara asked Acuna to apply for a position in the Chicano Studies Department there. He did, and the chair of that department, Yolanda Broyles-González, recommended him for the post after the whole department reviewed 33 applicants and voted to name Acuna. One of the goals was for him to help develop the first program in the United States that would grant a PhD in Chicano Studies.
Broyles-González and others had little doubt about Acuna being the best applicant. During the movimiento years of the 1960s, he had founded Chicano Studies to meet student demands. At California State University, Northridge (near Los Angeles) he built what became the largest Chicano Studies department in this country. It is one of the few in the U.S. with an MA degree program. Acuna has taught at Northridge since 1969. For years one of his historical works, Occupied America, has served as the basic book on Chicano history at colleges and universities everywhere. After decades of being treated as invisible, the Chicano/a experience was finally being recognized as a significant part of U.S. society and its history; Acuna played a crucial role in this transformation. He even wrote two children's books about Mexican Americans, because there were almost none at the time.
Acuna has been a frequent participant in demonstrations on issues of social justice, to the point of being arrested several times for his beliefs. Over the years he has published many op ed articles on Latino issues, local politics, and other events in the Los Angeles Times and, before its demise, the Herald Examiner of Los Angeles.
ACT I: Acuna Vetoed
In a one-sentence memo dated June 19, 1991, Yolanda Broyles-González was told the nomination of Acuna had been vetoed. What happened? And what did it mean when she herself was later removed?
All appointments recommended by a department head at UCSB are reviewed for approval by several other bodies. In Acuna's case, an ad hoc committee did the hatchet job, with its membership and its report to Chancellor Barbara Uehling kept secret. Acuna could obtain only a summary of the secret committee's report, with names removed. It explained the refusal to appoint him as due to inadequate scholarship and the fact that the Committee did not find his fiery brand of advocacy appropriate for a professorship. It discredited his many letters of recommendation from outstanding scholars, while suggesting his high public profile would enable him to be dictatorial in the Chicano Studies department.
Acuna believed UCSB had moved against him from fear of what could happen if his radical political perspective came onto that campus backed by his national reputation and senior stature. Their motive is to censor me politically under the guise of what is or what is not scholarly, he said at the time. In a larger context, he added, the secret committee's action expressed a political climate that sees token reforms like multiculturalism as a threat to their Euroamerican hegemony and [they] are raising the barricades to defend [it].''
Charges of discrimination could be brought against UC for its action, Acuna believed. At first he tried to negotiate, offering not to file suit if UC would send a public letter of apology to him and those who recommended him. During a later mediation he proposed other conditions, such as UCSB establishing a permanent Chicano cultural center, tripling the Latino faculty by 1997, and developing long-range plans for Chicano Studies.
Those conditions spoke to a stark reality at UCSB and UC in general. It is a reality that has been repeatedly protested by students, with hunger strikes on different campuses during recent years, and by UC workers through union action. Acuna documented one case after another in which the hiring of qualified Chicanos had been blocked by the violation or manipulation of procedures -- an old tradition. The result: out of 583 tenured faculty at UCSB in 1990-91, only 5 percent (27) were Latino and only 1 of the 27 was a woman. Such was the situation in a state officially 26 percent Latino according to the 1991 census, and surely more by now. The numbers did not improve for the non-tenured, or for other people of color. Yolanda Broyles-González was the first woman of color to gain tenure at UCSB. An official 1991 UC Berkeley study had shown UC employment discrimination against people of color and women to be systematic.
Acuna estimated that less than 1 percent of the total 5 percent Latino faculty were of Mexican extraction (or Chicano/a) as compared to Cuban, South American, etc. At the same time, the UC system usually treated Chicano studies as a non-legitimate discipline: inchoate. How it could develop in the absence of scholars and experts remained a mystery.
Designed to improve that entire situation, Acuna's conditions for not suing were refused by UCSB. At that point, he told the Santa Barbara News Press with typical Acuna in-your-face aplomb that he would sue. What do you want me to do, act like a good Mexican boy, say 'sí senor,' and go away? Those days are gone forever. Acuna felt he had no choice but to go to the court of law and of public opinion.
The wheels of litigation then began to turn as Acuna's lawyers filed suit in September 1992. Originally the grounds were discrimination based on race, national origin, political orientation, and age (Acuna was 59 at the time). Judge Audrey Collins, whose sympathies would become clear to everyone at the trial, threw out the first two grounds. Political discrimination was dropped through an attorney's procedural error. Only ageism remained, but the team decided to go ahead: you work with what you've got -- and there was direct evidence of age discrimination. To have a court find UC guilty of discrimination in any form would be historic.
ACT II: The Secret Report Revealed
Utilizing a U.S. Supreme Court decision in a Pennsylvania case concerning access to documents, Acuna's lawyers were able to obtain the full secret committee's report in 1993. Now it could be told that the group which reviewed Yolanda Broyles-Gonzales's recommendation to hire Acuna had consisted of three white men. One, Wallace Chafe, had worked for the CIA for five years and was considered an expert on Native Americans. Asked in his deposition for his opinion about various scholars, he said that Noam Chomsky was a charlatan. A second committee member, Giles Gunn, was a Professor of English literature who claimed to know the history of culture. But he had no knowledge of Chicano Studies and had never heard of Acuna before.
Robert Kelley, the ad hoc committee's chair, was an unabashedly eurocentric historian who stated in his deposition that Acuna had lied in saying the U.S. started the war on Mexico of 1846-48. In one of his history textbooks, Kelley still refers to undocumented Mexican workers as wetbacks in the 1986 edition. The person originally nominated to be chair (but replaced by Kelley) was Otis Graham, one of the founders of a reactionary anti-immigrant organization, the Federation of American Immigration Reform (FAIR).
Such was the all-white team assigned to evaluate an appointment that would have a major effect on UCSB's policies toward students and faculty of color as well as Ethnic Studies. This trio received full support in their decision against Acuna from the Chair of UCSB's Committee on Academic Personnel (CAP), Jeffrey B. Russell. An historian, Russell has stated that Acuna's work was Marxist because he used terms like hegemony and subjugated peoples. In his deposition of November 17, 1995, Russell said the role of the scholar is to search for truth; however, absolute truth is whatever would exist in the mind of God, to which we have no access....we cannot even hope to get close to it [absolute truth]. In a March 7, 1991 lecture, and confirmed in his deposition, Russell stated, The purpose of the University is to proclaim the intricate mystery and glory of God...
Who selected those three men on the ad hoc committee? The answer: associate vice chancellor Julius Zelmanowitz, who puts together all such committees. Zelmanowitz has enormous power; he is known for putting together a committee that will be sure to usher in a candidate smoothly -- or guarantee the candidate being rejected. Before the trial Zelmanowitz publicly insisted on the integrity of the process with Acuna and that no campus procedures had been breached. But in the trial itself, witnesses testified to improper phone calls, meetings outside review channels, and other violations.
The ad hoc committee's report reads like postmodern McCarthyism. It begins by noting that Acuna is an extraordinarily visible historian, then goes on to term him a cult professor. In the Chicano world, he is thought of as `a master spirit' who can achieve remarkable things. Images of hypnotic priests and satanic rituals dance in the reader's head as the committee goes on to comment that Acuna has an aura and prestige which far overshadows that of anyone else currently on [UCSB's] faculty. They feared Acuna's influence would be decisive in future hiring, merit increases, promotions, research, writing. It would determine the evolution of Chicano Studies.
This dictatorial potential would be enhanced by Acuna being the first professor to hold his appointment entirely in Chicano Studies -- not as a dual appointment, where a professor is hired for Chicano Studies and another department, too. That system has served, many believe, as a safeguard against Chicano Studies having independent control over its own faculty and growth.
The report then tried to go for the jugular of weak scholarship. After reading Acuna's work, as they claimed to have done, committee members felt he is an inveterate polemicist and pamphleteer who...shapes his analyses and narrative to serve a political purpose. Occupied America is a moralizing work and not objective; Acuna is on a soap-box, ranting. His book is counter-hegemonic; it cannot qualify as solid history. CAP dismissed it as a cult book. Even committee member Giles Gunn later said in court that he didn't agree with some of the language of its report.
Also in court, committee members admitted they had each read, at most, only one Acuna book. But that did not prevent them from concluding that placing an historian with Professor Acuna's definition of what constitutes scholarship in a predominant position would be an error. His mind was not the kind needed in a field as yet so inchoate and lacking in firm intellectual identity as Chicano Studies. In a single sentence, the report demeaned both the person and his field of study.
With those words the committee lay bare the heart of the matter: ideological control, particularly over Chicano Studies, which does need further definition -- but by its very content implies an anti-imperialist, anti-racist historical perspective.
What about Acuna's ten supportive extra-mural letters from scholars, some of them nationally known experts and some high-level UC professors? CAP's chair Jeffrey Russell dismissed the letters by saying with few exceptions they are solicited from people favoring politically activist over objective scholarly approaches. Russell then quotes from every letter -- but only four could possibly be described as praising Acuna's activism or polemical views.
Even before the secret committee's report became public, strong support for Acuna built in the community. Students noted that UCSB's Chancellor had waited to announce Acuna's rejection until summer -- when it would be harder to mount protests. On October 17, 1991 about 600-800 demonstrated. A march and rally in Santa Barbara on February 1, 1992 drew some 2,500 people from California, Texas, and Colorado. Acuna continued teaching at Northridge and writing.
ACT III: Moving Toward Trial
Meanwhile, the lawsuit moved along slowly. I've never been in a case that was so hotly litigated, lead attorney Moisés Vázquez told this writer. UC tried to kill its adversary with paper: filing a river of motions, sending an avalanche of letters and Faxes to be answered. When Acuna's lawyers asked for UC personnel records, they received 45 to 50 boxes -- probably 200,000 sheets of paper -- to plod through (on unpaid time).
UC's often witch-hunting tactics included researching every word Acuna had ever written, and reviewing it (on well-paid time) for supposedly subversive or radical content, anything that might hurt in court. A high point came when UC sent a team of five men with three photocopiers to Acuna's home, to copy all his papers.
Acuna says UC contacted people all over the United States in a hunt for damaging information about his personal life. He was audited by the IRS three times after filing suit, which again suggests a desperate search for dirt as does the court order UC obtained to make Acuna take a psychiatric examination. Acuna is also certain that UC had agents monitor speeches he gave at public events. Two were exposed, identified as campus police by students when he went to speak at a UCSB class. UC also had informants among the students.
To finance all this, UC spent an estimated $4 million before the October trial (a precise accounting will be available soon). At the other end, Acuna's lawyers worked thousands of hours pro bono -- no salary unless the court awarded it -- and sometimes even paid for expenses out of their own pockets. Small community-based fund-raisers, often with artists and performers donating their services, kept the lawsuit afloat thanks to people like Mary Pardo, who also teaches at Cal State, Northridge.
ACT IV: The Trial
The saga of David v. Goliath continued in the courtroom, beginning last October 10. You could see it when you arrived: the Gucci/Armani look of UC's Anglo attorneys with their expensive display equipment for evidence, and Judge Audrey Collins with her body language clearly indicating sympathy for UC. Observers commented on her scornful eyeball-rolling at Acuna arguments and her deferential attentiveness when UC's team spoke.
Judge Collins's rulings also tended to favor UC. First, as mentioned above, she limited the grounds for his suit before trial, throwing out race and national origin; thus she accepted as truth UC's claim that racism had not been an issue. She also limited the time allowed for Acuna to prove his challenging case; his lawyers requested six weeks, she granted twenty hours. She severely limited the number of experts his lawyers could call. She limited the number of scholars who could testify in court about their letters supporting Acuna to just one person out of a possible ten. Again and again Judge Collins put chains on Acuna's grievance.
What does it mean that Collins owed her appointment as a judge in part to a letter of recommendation written by the man serving as UC's lead attorney on the case she was presiding over? Even non-experts would call this a potential conflict of interest. If Acuna's attorneys chose not to challenge her presence, they must have had doubts about getting anyone better in federal court.
In the trial, the evidence for Acuna included numerous references in UC reports to his age as a liability -- references that were gratuitous or inappropriate. For example, the ad hoc committee noted that Acuna would be arriving at UCSB at age 59, and would necessarily have to spend much of his remaining time on the active faculty learning how to carry out this most difficult and demanding of instructional tasks, the teaching of students at the PhD level. CAP's report describes as a drawback the fact that, Acuna, at age 59, has never trained doctoral students. The secret committee's report said that many younger scholars would think him obsolete. Because his anti-imperialist, anti-capitalist views are not as thoughtful as those of today's scholars, they implied.
In court, UC's witnesses made statements that contradicted their earlier depositions. For instance, Giles Gunn of the secret committee testified repeatedly that members never discussed Acuna's age in their meetings. But when reminded of his deposition, he agreed we did think that [Acuna's age] over. Gunn denied the need to correct any contradiction between the statements; it was, he said, simply that age was not the central factor. The judge sustained UC's objection that Acuna's lawyer was being argumentative in identifying the contradiction.
The only Raza witnesses for UC were two Latinas and one Latino from the UCSB Chicano Studies Department: Rosalinda Fregosa, Francisco Lomeli, and Denise Segura. Back in 1991, the three had abstained in the vote called by chair Yolanda Broyles-González to recommend Acuna for a UCSB post. The secret committee had made much of the divided vote (three in favor, zero against, and three abstentions).
However, in the trial none of the three stated that Acuna was unqualified for the position. One, Denise Segura, testified that Broyles-González had intimidated her into abstaining. This was the latest of many unsubstantiated charges by Segura, who has reportedly sought the removal of every Chicano Studies chair since her arrival in 1986. As usual, campus politics was playing its role in the saga of Acuna v. UC, and the bad guys were not all white. At the same time, the main game didn't play at this level of smalltime academic antics; it was upstairs with the big power-brokers.
After two working-days, the jury came back with its unequivocal, 8-0 verdict for Acuna against UC's discrimination based on ageism. Dozens of supporters had been in the courtroom all month -- students, elected officials, teachers, workers, parents. Now everyone celebrated the verdict.
Judge Collins was to rule in December on whether to compel UC to grant Acuna the appointment (in which case he would receive $90,000 compensation) or not (in which case he would receive $325,000). Acuna's lawyers plan to continue the suit for general damages in state court, with a trial-setting conference in January 1996. He has said personally that any income resulting from any court action would go to set up a foundation so that other Chicanos/as could bring legal action against discrimination. (Some money for my daughter Angela to go to college, would be the only personal use.)
ACT V: More UC Tricks
Apparently UC doesn't intend to give an inch, no matter the cost to taxpayers. To prevent the judge from having any reason to give Acuna the UCSB job, it submitted a new round of demonizing arguments and the Information Bulletins mentioned above. It filed the motion asking for a new trial or a judgment notwithstanding the verdict by Judge Collins, based on the jury's supposed lack of evidence. In case that wasn't enough reason, UC attorneys are saying, Collins should look at her own errors in allowing certain testimony that should never have been heard.
Even before the trial, UC showed its intention to wage all-out war on dissidents when it removed Broyles-González as chair of the Chicano Studies department in 1994. Yet she had just received an evaluation of superior performance. The excuse given, in veiled language, was her support for UCSB students who had waged an 11-day hunger strike to win more Chicano Studies faculty and other demands. She told this writer that the reason was retaliation for my support of Rudy Acuna, absolutely. So much for academic freedom.
Broyles-González also states that the secret committee report distorted her statements at its meetings, which she was allowed to attend for one hour. It quotes her as agreeing on a criticism of how Acuna's work would be considered dated by younger scholars; I never said that, they twisted a different comment.
At times the whole case echoes with conspiracy. Acuna points to a strange coincidence. Before filing suit, he published dozens of articles in the Los Angeles Times. After filing, he submitted five to ten pieces on different issues but none were accepted. Recently he learned that a vice president of the Times, Marilyn Lee, is a past president of the UCSB Alumni Association and a close friend of former UCSB Chancellor Barbara Uehling. Lee's husband is associated with UCLA. The Los Angeles Times also terminated Broyles-González as its theater critic after the Acuna suit began.
Throughout the five-year struggle, Acuna's politics have not been simply race-based, and he says repeatedly: we're not fighting white people, we're fighting capitalism. There is a great danger in associating whiteness with capitalism. You might forget stands taken by people like Eleanor Roosevelt, or Woody Guthrie with his song "Jesús and Maria" about Mexican immigrants. We also have to look at our own errors, like sexism and homophobia. And it's true that we have to decide what kind of Chicano Studies we want. It has to be progressive.
The case of Acuna v. University of California Regents is about the mind's struggle for air in these suffocating times. We can ask if it really matters whether there is freedom of thought at the university level when so many youth are too poor to get past sixth grade. Acuna's case says yes, it does. When we talked on one of the last days in court, the issue was again: why fight this endless suit? You cannot win. Acuna said: No, I can't lose. You empower people by giving them historical memory. Even if we lose the case, knowledge is gained. Memory is established. You can show why we lost, if we do. You can expose what happened. As Malcolm X said, `if you don't know your history, you're no better than a lower animal'.
Which is why the whole progressive world -- educators, students, civil rights advocates, anti-racist activists, workers, youth -- should be watching this case.
Donations for legal expenses are urgently needed, and can be sent to: For Acuna, PO Box 33523, Granada Hills, CA 91394. Tax-deductible checks payable to For Acuna/ACLU.