Embattled former University of Colorado (CU) professor Ward Churchill’s civil rights case will be reviewed by the Colorado Supreme Court.
High court scrutiny will be afforded to the issue of whether CU’s investigation of Churchill’s scholarship was an “adverse employment action” under federal civil rights law when, after the investigation’s conclusion he was fired for “research misconduct.”
“It’s a very hopeful sign for the First Amendment, for academic freedom, and for tenured professors,” David Lane, Churchill’s attorney, said.
Churchill and a District Court jury—whose verdict was tossed out by the lower court judge—contended he was fired in 2007 in violation of free speech rights after attention was drawn to a post-9/11 essay he wrote in which he referred to some World Trade Center workers as “little Eichmanns” as part of a critique of U.S. foreign policy.
The Colorado Supreme Court will also decide whether granting quasi-judicial immunity to CU regents who fired Churchill, a tenured professor, and the subsequent denial of his reinstatement or other remedies are actions consistent with civil rights law.
Churchill earlier was unsuccessful in an attempt at a reversal of the lower court judge’s decision to dismiss a jury’s retaliatory firing verdict and then to deny him reinstatement to his former faculty position because, the judge determined, CU officials were immune from liability.
Then, last November, the Colorado Court of Appeals ruled that his academic freedom “did not include the right to commit research misconduct that was specifically proscribed” by CU’s policies and enforced by shared CU/faculty governance in what the court determined was not an adverse action.
Churchill, who wrote extensively on Native issues, was fired from CU’s ethnic studies department after his online essay seemed to blame all 9/11 victims personally for federal policies that preceded the 2001 attack and, although he subsequently attempted to clarify what he meant, a political firestorm ensued.
A former Colorado governor and other politicians, CU regents, talk show hosts, and assorted pundits called for him to be fired, and were “falling all over themselves to talk to the national media and calling for his dismissal,” Lane said at the time, vowing to go to the U.S. Supreme Court, if necessary.
CU decided that his post-9/11 essay enjoyed free-speech protections but that simultaneously raised allegations of research misconduct had to be addressed “just as it should address alleged sexual harassment, sanctionable criminal activity, or other wrongdoings within its purview,” CU said, and Churchill was fired after the review.
Churchill, in turn, charged that CU selectively enforced research misconduct policies “in retaliation for his exercise of free speech.”
“As it stands right now, if a university fires a professor for protected speech, the court will turn a deaf ear—hopefully the Colorado Supreme Court will reverse that,” Lane said after the state Supreme Court agreed to review Churchill’s case.
Legal observers felt it was possible the state’s high court might accept Churchill’s request for review because the issue of whether an investigation alone constituted an adverse employment action had not been resolved in the U.S. Supreme Court.
The date for hearing has not been set for the Colorado Supreme Court’s review of the issues presented by Churchill, who was not immediately available for comment.