FIRE has been covering the case of Ward Churchill for some time now. As readers may recall, Professor Churchill lost his position at the University of Colorado at Boulder in 2007 after the Board of Regents removed him for alleged research misconduct. According to Churchill, the grounds for the dismissal were pretextual: He maintains he was fired because of comments he made several years earlier in an article about the victims of the 9/11 terrorist attacks.
Churchill sued the University’s Board of Regents in Colorado state court for both investigating him for his comments and dismissing him for pretextual reasons, alleging that the Board’s actions violated his First Amendment rights. As The Chronicle of Higher Education reported, the trial court ruled twice against Churchill, directing a verdict for the Board on the issue of whether initiating an investigation was an "adverse employment decision," and vacating a jury verdict in Churchill’s favor on the grounds that the Board was immune from lawsuit. The Colorado Court of Appeal affirmed, and now the Colorado Supreme Court is set to hear arguments. Churchill has filed an appellate brief, and several groups have filed amicus curiae briefs on his behalf (including the ACLU and a coalition led by the National Lawyers Guild). Although the Board’s reply brief is not currently available online, an amici curiae brief on behalf of the Board from a group led by the American Council on Education (ACE) is available here.
The most interesting issue in the case concerns immunity. Both the trial and the appeals courts held that the Board should be immune from suit because the functions it performed relating to Professor Churchill’s dismissal were quasi-judicial. (See Chronicle of Higher Education coverage here.) ACE argues that the Colorado Supreme Court should uphold that ruling, citing the need to protect academic freedom and the procedural safeguards the university employs.
FIRE, however, disagrees. The Court of Appeals’ holding in this case is very troubling. It would in essence shield university administrators from outside accountability in their decisions to terminate professors, no matter how nakedly biased or unconstitutional those decisions were. As Churchill notes in his brief, the existing law is already very favorable to universities: Under the defense of qualified immunity, state actors like the Board that allegedly violate faculty constitutional rights are immune from a suit for damages unless their actions violate "clearly established" law of which a reasonable official should have known. Expanding the law from qualified to total immunity, as ACE and the Court of Appeals seek to do, would only serve to immunize bad actors who willfully or extremely incompetently violate constitutional rights in terminating professors (for example, by firing them because of protected speech), an outcome that will not help the academy to be fairer or more open to an exchange of ideas.
Regrettably, FIRE’s case archives prove that higher education administrators cannot always be trusted to treat campus community members with fairness or respect. Legal remedies in court provide a valuable mechanism by which professors can vindicate themselves in the event that a group like the Colorado Board of Regents chooses to punish them for unpopular speech.
Much of ACE’s brief is at best irrelevant and at worst misleading in its discussion of the university’s procedures for removing a tenured professor. According to Churchill’s brief, the Board of Regents is the sole authority with power to fire a professor, and it is not bound by the recommendations of the University’s Faculty Senate Committee on Privilege and Tenure, which must follow university procedures. (In fact, the committee did not recommend Churchill’s dismissal, but the President overrode its report in recommending that the Board fire him.) It is unclear from ACE’s brief what if any procedures the Board itself has to follow in making its ultimate determination. While it may sound cynical to speculate that the Board would disregard the advice of its own faculty review process in pursuit of political agendas when meting out punishment to faculty members, that is at least partially what Churchill alleges happened in his case. The existence of procedures at the lower level of a college should not justify excusing those with final authority from having to be accountable for arbitrary actions.
FIRE will be watching this case to see how it develops. We hope that the Colorado Supreme Court reinstates Professor Churchill’s jury verdict, and that this case sends a message to administrators who might otherwise violate the First Amendment rights of faculty.