Ward Churchill, former University of Colorado (CU) professor, has rolled the dice a last time, hoping the U.S. Supreme Court will review his firing from CU for research misconduct, a charge he has repeatedly litigated in the lower courts because he believes his dismissal originated in political heat generated by a post-9/11online essay he wrote.
The odds aren’t in his favor in the nation’s high court, which has a conservative reputation and which reviews only about 1 percent of cases brought before it.
The Colorado Court of Appeals, affirmed by the Colorado Supreme Court, ruled in 2010 that Churchill failed to prove that CU’s investigation of his scholarship was an “adverse employment action” resulting in termination despite his free-speech rights, and that the granting of “quasi-judicial immunity” to CU Regents in his firing was inconsistent with civil rights law.
Although Churchill wrote extensively on Native American issues, he was fired in 2007 from CU’s Ethnic Studies Department after it became known the essay he authored in 2001 compared some World Trade Center employees to “little Eichmanns,” referring to a prominent Nazi who organized details of the Holocaust. Churchill’s later attempted elaboration on the term fell on deaf ears.
CU officials decided the essay was within constitutional free-speech protections, but that simultaneous allegations of research misconduct had to be addressed as any “other wrongdoings within [CU’s] purview” would be examined.
The two questions presented to the U.S. Supreme Court are similar to the issues accepted for consideration by the Colorado Supreme Court, but they are more pointed, for example, in querying whether a “bad faith” investigation of “all” of a professor’s product by state university officials undertaken “in retaliation for the exercise of constitutionally protected speech and with the stated purpose of finding grounds for termination” violates free-speech guarantees.
The high court was also asked whether “absolute, quasi-judicial immunity” should “completely shield a state university and its board of regents’ termination decisions, even when a jury has determined that these officials fired a tenured professor in retaliation for speech protected by the First Amendment and would not have fired him but for his exercise of free speech.”
Then-Denver District Court Judge Larry Naves, since retired, vacated a jury’s verdict in 2009 that found Churchill would not have been fired had he not written the 9/11 essay, citing CU regents’ blanket immunity from lawsuit.
David Lane, Churchill’s counsel of record, was not immediately available for comment. He maintained throughout the six-year investigatory and litigation process that Churchill would approach the U.S. Supreme Court if all else failed, in part to safeguard academic freedom of speech. CU officials, on the other hand, have said the university’s reputation would be compromised if Churchill were allowed to teach despite the negative academic findings.
The decision as it stands “allows state officials to retaliate against professors who express unpopular views—liberal or conservative, religious or secular—with impunity,” Churchill said.
The petition, filed with the Supreme Court December 10, included a 43-page statement of the case and 183 pages of attachments, including lower court opinions, cases cited, and relevant statutes’ citations. The Supreme Court will issue a decision on whether to review the case at an undetermined future date.