Colorado Supreme Court justices June 7 heard the argument that reinstating fired University of Colorado professor Ward Churchill could disrupt CU’s normal operation, a point contested by David Lane, Churchill’s attorney, who said “not one single student missed one single class” as a result of controversy over his dismissal.
Lane, a noted civil rights attorney, said that whoever lost the battle over Churchill’s firing or reinstatement would likely go to the U.S. Supreme Court, where, he added, fewer than one in 100 cases are accepted. He also said he would seek a new trial on Churchill’s firing for free-speech issues after a jury’s verdict in his favor was thrown out.
A panel of five of seven justices heard arguments from Lane and CU about points the former tenured professor raised after his firing by CU in 2007 for research misconduct, not, as he insists, for a free-speech related backlash ignited after he posted an electronic essay critical of U.S. foreign policy the day after 9/11, 2001.
Most inflammatory was apparently his having referred to some World Trade Center workers as “little Eichmanns”—functionaries reminiscent of a key Nazi official – as part of a critique of U.S. actions and policies.
In a key point, Churchill questioned whether the granting of “quasi-judicial immunity” to CU regents for their firing of a tenured professor violates federal civil rights law. If it does not, university officials could be shielded from litigation about tenure or academic freedom, he said.
Lane explained that in pretrial negotiations CU regents were granted relief from personal liability but CU in its official capacity did not enjoy immunity. Patrick O’Rourke, CU’s lead attorney, said qualified immunity is based on function, not on position, and should exist when a judicial process exists—the right to counsel, burden of proof required, and judicial review, among other functions involving the regents.
Churchill also asked the state’s high court to determine whether the denial of fair remedies, including reinstatement, for his firing in 2007 was in violation of free speech and undermine the purposes of federal civil rights law.
Churchill, formerly of CU’s ethnic studies faculty, said he should have been reinstated after a Denver District Court jury unanimously decided in his 2009 appeal that he was fired for protected free speech, not for research misconduct, as CU contended.
District Court Judge Larry Naves tossed out the verdict reached by that jury and the Colorado Court of Appeals affirmed his ruling was affirmed in 2011.
Finally, Churchill raised the issue June 7 of whether a public university’s investigation of a tenured professor’s academic work can constitute an adverse employment action if firing also results from free speech-related issues. Lane recalled that then-acting interim chancellor Phil DiStefano in 2005 said they would investigate everything Churchill said or wrote to find “whether we can find cause for dismissal.”
O’Rouke said that the university’s interest would be in undisturbed operation and it would have “the obligation to a reasonable review” before the decision to discharge an employee. Lane termed the various committees and processes set in motion to investigate Churchill’s work “sham due process.”
Churchill in 2005 became a target of Colorado’s then-Gov. Bill Owens, who demanded Churchill’s dismissal for the 9/11 essay, as did CU donors, former Colorado Sen. Hank Brown, television pundits, CU officials and others. His claim to American Indian ancestry was debated, as were his military history and assorted personal grudges.
The two-year review of Churchill’s scholarship through three committees centered on his assertions about historical events and his attribution practices, findings about which prompted the final committee—the Privilege and Tenure Committee—to recommend 3-2 that he be demoted and suspended without pay for one year, rather than being fired.
The justices will rule on Churchill’s appeal at an unspecified future date.