The Colorado Supreme Court will hear oral arguments in former University of Colorado at Boulder Professor Ward Churchill’s First Amendment lawsuit against the university’s Board of Regents on Thursday. Longmont Times-Call reporter Mitchell Byars writes:
The Colorado Supreme Court announced in 2011 that it would hear Churchill’s appeal, including a key argument about the quasi-judicial immunity doctrine that Churchill and his attorneys have challenged, arguing it threatens academic freedom and tenure at universities.
In addition to reviewing whether granting CU’s Board of Regents quasi-judicial immunity comports with federal law, the Supreme Court will consider whether CU violated Churchill’s First Amendment rights and whether Churchill can be given back his job as an ethnic studies professor — which attorney David Lane said Churchill still wants.
"Our hope is that the Colorado Supreme Court writes an opinion that rights this injustice that has occurred," Lane said Tuesday.
CU’s regents voted 8-1 to fire Churchill nearly five years ago after the university said he had committed repeated academic fraud in his scholarship.
Churchill then sued the school, claiming that the university really fired him over a controversial 9/11 essay he had written years earlier. In that essay, Churchill called victims of the Sept. 11 terrorist attacks "little Eichmanns" — a reference to an architect of the Holocaust.
As Stephen Henrick explained here on The Torch back in January, Churchill’s appeal has attracted significant attention from outside organizations, garnering amicus curiae briefs from the American Civil Liberties Union and the National Lawyers Guild. On the other side, the American Council on Education has filed in support of the Board of Regents. As Stephen noted, the outside interest stems from the questions the case raises about public university accountability—and, specifically, about whether a public university’s board of regents should be protected from lawsuits alleging improper decision-making:
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.
FIRE has closely watched Churchill’s case for years. In 2005, FIRE wrote a letter to UC-Boulder concerning Churchill’s firing, and later that year issued an analysis of the university’s report on the matter. We will continue to monitor developments as proceedings commence later this week.