A Loss for Ward Churchill -- and Others?

A Colorado appeals court on Wednesday rejected the arguments put forward not only by Ward Churchill but by national faculty and civil liberties groups that argued that his previous legal defeat endangered the rights of many professors.

The key issues in the appeal were not whether Churchill committed research misconduct that justified the decision of the University of Colorado Board of Regents to fire him from his tenured position teaching ethnic studies at the Boulder campus. Rather, the appeals court ruled on whether Churchill received a fair hearing from Colorado officials, whether the university's regents were immune from suits, and whether his treatment infringed on his First Amendment rights or those of other professors.

The appeals court found that the Board of Regents was largely immune from being sued by Churchill either for its handling of his case or for First Amendment violations -- and the appeals court specifically stated that it did not see its ruling limiting the rights of other faculty members. Churchill has vowed to appeal -- meaning that a controversy that started in 2005 is likely to go on for some time to come.

Cary Nelson, national president of the American Association of University Professors, said that the ruling "may have a chilling effect on controversial political speech in the academy. But that damaging consequence may well be topped by the absurdity of granting quasi-judicial immunity to administrators and regents who showed contempt for impartiality by making their opinions clear before the case was considered on campus." The AAUP -- along with the American Civil Liberties Union and the National Coalition Against Censorship -- had urged the appeals court to side with Churchill on the issues in the appeal.

Wednesday's ruling upheld a decision last year by Larry J. Naves, a state district court judge who ruled that the University of Colorado Board of Regents had "quasi-judicial immunity" when it voted to fire Churchill from his tenured position teaching ethnic studies, after faculty panels found that he had committed multiple instances of research misconduct. Naves vacated a ruling by a jury in the case that found that Churchill had been inappropriately fired.

Churchill started teaching at Boulder in 1978 and won tenure in 1991. The author of numerous books and essays about Native American history, Churchill uses fiery rhetoric to describe the wrongs committed by the United States. In the years prior to 2005, Churchill became a popular figure on the campus lecture circuit -- although he tended to attract attention from those who shared his views, and he was not widely known outside academe.

Then he accepted an invitation to speak at Hamilton College, a liberal arts college in upstate New York, in early 2005. Some professors there circulated some of his writings, including an essay with the nownotorious remark comparing World Trade Center victims on 9/11 to "little Eichmanns." Within days, the controversy spread, with talk radio hosts, politicians, and the survivors of 9/11 victims expressing shock that a man with such views would be given a platform on a college campus. Hamilton initially stood by its invitation, on academic freedom grounds, but in the end called off the appearance, citing threats of violence.

At that point, the discussion shifted to Colorado, where numerous politicians were demanding that Churchill be fired. After several weeks of reviews, the university announced that the 9/11 essay could not be grounds for dismissal, given Churchill's rights to free expression and academic freedom and the lack of any evidence that his political views interfered with his teaching. But at the same time, Colorado announced that Churchill could be investigated and possibly fired for scholarly misconduct. That was because -- once the controversy broke -- scholars, journalists and others checked out Churchill's scholarship and quickly heard from researchers who said that Churchill had plagiarized or distorted their work.

Those inquiries eventually led to Churchill's dismissal, but Churchill and his supporters have maintained that the investigations and the decision to dismiss him were tainted by the outrage over his political statements over 9/11. (While Churchill has consistently denied research misconduct, some who have backed him in the appeals process have said that even assuming he committed research misconduct, the procedures used to evaluate him were unfair and need to be fought to protect other faculty members who may hold unpopular views.)

Much of Wednesday's appeals court ruling says that the Board of Regents is entitled to the same sort of protection from suits that judges typically have. The appeals court cites the procedures used in evaluating the allegations against Churchill. "The process employed by the regents incorporates many of the characteristics of the judicial process," the decision says. "The entire process employed by the regents followed strict guidelines under laws promulgated by them, afforded adequate notice of public hearings, and invoked an adversary process in which Churchill was represented by counsel and permitted to introduce evidence, examine witnesses, and make argument. We consider the process and the nature of the board's actions to satisfy the standards" for being immune from suits as a government judicial agency.

Churchill also argued in the appeal that some regents were biased against him in ways that show they cannot be considered quasi-judicial officials. He cites evidence that regents expressed interest in firing him before the inquiries against his scholarship were conducted. But the appeals court rejects this idea as well. "Churchill misconstrues the purpose and scope of quasi-judicial immunity. The protection essential to independence and discretion by the university and the regents would be gone if they were subject to the intimidation of a lawsuit seeking to undo every decision to terminate a faculty member," the ruling says.

A final argument by Churchill that the court rejects concerns the idea that the investigation into Churchill limited his free speech rights. On this issue, the court's decision notes that the rules for investigating research misconduct existed before the Churchill inquiry and that faculty members developed these rules and played the key roles in reviewing the allegations. "Churchill's academic freedom did not include the right to commit research misconduct that was specifically proscribed by the university's policies and enforced through a system of shared governance by the administration and the faculty."