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Ward Churchill Loses Again

September 11, 2012

The Colorado Supreme Court on Monday rejected an appeal in which Ward Churchill sought to get back his job as a tenured professor of ethnic studies at the University of Colorado at Boulder.

The court's 50-page decision focused on whether the University of Colorado had acted in a "quasi-judicial" fashion when it reviewed charges of research misconduct against Churchill. The state's highest court ruled that the university did act in that way, and so was entitled to immunity from being sued, much as judges are immune from being sued for their decisions. The university's Board of Regents fired Churchill in 2007, based on the findings of a faculty panel, which found that he had engaged in repeated instances of research misconduct -- including plagiarism, fabrication and falsification.

Churchill has maintained from the start that the investigation and his dismissal were motivated by outrage over his political views, and that the university had violated his First Amendment rights and taken away his academic freedom. The Colorado Supreme Court's ruling didn't weigh these claims directly, but several times in the opinion cited evidence that the university's procedures gave Churchill important due process rights and reflected the legitimate needs of a university to assure professional conduct by its faculty members.

As the Churchill case has dragged on, the various rulings have had an impact beyond the plaintiff. In fact, several college associations had urged the Colorado Supreme Court to rule as it did, arguing that failure to respect the university's quasi-judicial role would open up many other universities to lawsuits by anyone found to have engaged in research misconduct.

But some civil liberties and faculty groups -- including the Colorado chapter of the American Association of University Professors -- backed Churchill. They argued that affirming the university's quasi-judicial status would effectively enable public universities to fire controversial professors without appropriate opportunity for them to bring grievances to the courts. Both the college groups and the faculty associations argued in their briefs to the court that academic freedom was at stake in the case, although they argued for opposite outcomes.

In Monday's ruling, the Colorado Supreme Court noted the lengthy process that the university used to investigate the allegations against Churchill and to determine that dismissal was appropriate. "The proceedings against Churchill took more than two years and included five separate opportunities for Churchill to present witnesses, cross-examine adverse witnesses, and argue his positions," the Supreme Court opinion said. "It possessed the characteristics of an adversary proceeding and was functionally comparable to a judicial proceeding." For this reason, the justices ruled, the university was acting sufficiently closely to the judicial function of government that it was immune from being sued.

The ruling cited a series of procedural and fairness tests in case law to determine whether the Board of Regents acted in a judicial manner, and said that the governing board met all the relevant tests. While that finding was the crucial one, various parts of the decision also suggested that the Supreme Court viewed the findings against Churchill to be reasonable ones. For instance, the Supreme Court said that the trial judge in the case -- who rejected Churchill's request for reinstatement -- had acted on the basis of "credible evidence" about Churchill's conduct.

An Inflammatory Essay and Its Aftermath

The University of Colorado hired Churchill in 1991, and promoted him to full professor in 1997. He was active in Native American political movements, and gave lectures on college campuses nationwide -- regularly criticizing U.S. policies but doing so largely without attention in the mainstream press.

Then early in 2005, he became a flashpoint in the culture wars. He had been invited to give a talk at Hamilton College -- the kind of speaking invitation Churchill had accepted for years. Hamilton professors unhappy about the invitation circulated some of his writings, including the now-notorious "little Eichmanns" speech in which he derided the people killed at the World Trade Center on September 11.

The attention led both to calls for Colorado to fire him and to reports of incidents of research misconduct. The university said it couldn't fire him for the essay, but could investigate the allegations -- and that started the process that was reviewed by the Colorado Supreme Court.

David A. Lane, Churchill's lawyer, issued a statement blasting the decision and vowing an appeal to the U.S. Supreme Court.

"This is an incredibly dangerous precedent for an allegedly free society. This decision emboldens government officials to violate the First Amendment with impunity knowing that they cannot be sued for their disregard for the rights of citizens. It is an unprecedented decision which diminishes freedom of speech for all of us. Professor Churchill will request that the United States Supreme Court review this dangerous precedent," Lane said.

Philip P. DiStefano, chancellor at Boulder, issued a statement praising the Supreme Court ruling. "Today’s decision by the Colorado Supreme Court upholds the high standards of academic integrity practiced every day by our faculty, and helps us to ensure the quality of instruction for all our students," he said. "It is vital that what is published and what is taught in the classroom be based on research and scholarship grounded in honest, accepted and time-tested methods.This was always what was at stake in this case for the university, and the winners today are our faculty and students."

The university was backed before the state's high court by a joint brief from the American Council on Education, the American Association of State Colleges and Universities, the Association of American Universities and the National Association of Independent Colleges and Universities. They argued that the quasi-judicial status that the Supreme Court affirmed was essential for colleges and universities to have.

"Churchill would have this court decline to apply quasi-judicial immunity to university determinations regarding research misconduct. Such a holding would expose these institutions to repeated claims by dissatisfied faculty members and would ignore the constitutional tradition of deference to universities," the brief said. "A ruling in Churchill's favor ... would not only infringe on the institutional autonomy that is the cornerstone of academic freedom, but would chill universities' motivation to promulgate robust internal processes for faculty misconduct proceedings."

Cary Nelson, past president of the American Association of University Professors and a frequent speaker on academic freedom issues, said via e-mail that he was deeply concerned by the Colorado ruling.

"In affirming the astonishing idea that a university's senior administrators and Board of Regents possess quasi-judicial immunity from legal redress once a quasi-judicial campus review has taken place, they empower administrators to appoint biased review committees chosen to produce a preordained result and then stand protected by the courts," Nelson said. "Of course the Colorado administrators and regents displayed precisely the opposite of judicial neutrality. They urged that Churchill be fired even before campus reviews had taken place. The Colorado court has lent its authority and approval to a corrupt process and a politically motivated result. Its decision will inevitably be cited in cases in other states. The threat to academic freedom is substantial."

 

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