Some civil libertarians may be upset—but likely won’t be surprised—at the U.S. Supreme Court’s decision April 1 to decline, without comment, former University of Colorado-Boulder (CU) professor Ward Churchill’s final and determined attempt at recompense for what he insists was his 2007 firing for exercising constitutionally protected speech.
The petition to the Supreme Court asked whether a “bad faith investigation” of a professor’s work undertaken “with the stated purpose of finding grounds for termination” violates the constitution and whether “absolute, quasi-judicial immunity” should prevail even when a jury determines protected officials fired a tenured professor in retaliation for constitutionally protected free speech and would not otherwise have fired him.
The justices’ decision not to hear Churchill’s petition allows to stand rulings by the Colorado Court of Appeals and state Supreme Court that Churchill’s termination and CU’s refusal to reinstate him do not stem from actions inconsistent with civil rights law. The high court’s determination upholds “quasi-judicial immunity” for the CU Regents who fired Churchill and lets stand the contention that CU’s detailed investigation of his scholarship, which led to his dismissal for “research misconduct,” was not inherently an adverse employment action.
Churchill, who wrote extensively on Native issues, was fired from CU’s ethnic studies department after a 2001 online essay surfaced in which he questioned the United States’ foreign policy and referred to some of those killed in the World Trade Center on 9/11 as “little Eichmanns,” referring to their role in U.S. policy as being similar to that of the Nazi Adolf Eichmann, a key figure in organizing the holocaust during the Third Reich. CU decided that his post-9/11 essay enjoyed free-speech protection but that allegations of research misconduct raised at that time had to be addressed.
Churchill and his lead attorney, David Lane, later charged that CU selectively enforced research misconduct policies, a contention supported by a Denver District Court jury, which in 2009 declared that Churchill had indeed been fired in retaliation for his post-9/11 free speech-protected essay and not for research misconduct. The judge threw the verdict out on the basis that the CU Regents were immune from lawsuit, a decision now echoed by state and federal high courts.
Following the announcement Suzan Shown Harjo, president of The Morning Star Institute, said, “This is a welcome end to Churchill's case against CU for firing him. CU was right then – because its many committees found him guilty of plagiarism and academic misconduct – but it was wrong in hiring and promoting him. This case illustrates what ill came from an educational institution allowing a pseudo-Indian to self-declare, by box-checking and on his resume, his identification with specific Native Nations and failing to check with the Native Nations or to rely on their unsolicited denials of tribal citizenship.
A joint statement from CU president and chancellor declared the matter “now over” and “a victory for CU faculty.” Neither Churchill nor Lane was readily available for comment.