colorado supreme court rules against author and activist ward churchill

by Tim Phillips

The Board of Regents of the University of Colorado terminated tenured professor Ward Churchill on July 24, 2007, after public outcry condemning a controversial essay he wrote regarding the events of September 11, 2001. Each of the nine members of the University’s Standing Committee on Research Misconduct agreed, after impaneling an inquiry committee to review all of Churchill’s publications, that he had committed “serious, repeated, and deliberate research misconduct.” The Faculty Senate Committee on Research and Tenure held a seven-day hearing and unanimously concluded that Churchill’s conduct fell below the minimum standards of professional integrity.

The Colorado Conference of the American Association of University Professors, however, published a report last November 1 concluding that the administration “convicted [Churchill] of offenses that he did not commit.” The report described the investigative committee, which interviewed witnesses and reviewed documents submitted by Churchill, as “intellectually dishonest.” “At every step of the process,” the investigative committee “presumed Churchill either guilty as charged or a liar.”

When Churchill brought suit, alleging the investigation into his academic record was a pretext to terminate him in retaliation for constitutionally-protected speech, a jury found in his favor. The jury also found, however, that Churchill suffered no actual damages – he refused to seek alternate employment after his termination, for example – and awarded him one dollar. The trial court subsequently vacated the jury verdict, including the award of nominal damages, because it agreed with the University that the Regents were immune from Churchill’s claim.

Today the Colorado Supreme Court affirmed the trial court’s ruling against Churchill, stating that “the Regents’ termination of Churchill’s employment was ‘functionally comparable’ to judicial action.” Judges have absolute immunity when acting in their official capacities, as their decisions might be compromised if they were subject to the constant threat of lawsuits. This logic has been extended in some instances to other public officials with quasi-judicial responsibilities.

Churchill didn’t believe immunity should apply to his case, however:

Churchill argues that the Board of Regents is an inherently political body because each of the nine Regents is elected to a six-year term. … Especially in this case, Churchill argues, where media pressure and popular public opinion had coalesced to cast his scholarship in an intensely negative light, the Regents could not possibly have tuned out the myriad calls for his ousting. Churchill claims that the Regents had no meaningful choice because any action short of dismissal would have resulted in a severe political backlash against the Regents.

Instead of deciding whether Churchill was right – that the Regents were not exempt from his equitable claim for reinstatement or front pay – the Court upheld the trial court’s ruling that such remedies were, in any event, not appropriate under the circumstances: the combination of Churchill’s alleged academic dishonesty, the strained relationship between the parties, the jury verdict awarding one dollar, and Churchill’s refusal to seek alternate employment.

Churchill’s attorney plans to appeal to the U.S. Supreme Court.