FIRE has issued a comprehensive analysis of the Colorado Board of Regents’ report on Ward Churchill. The bottom line is that Colorado’s improper investigation has reached the substantively correct result. FIRE’s conclusions:
First, it is important to note that the Board of Regents’ investigation was flawed from the outset. According to the Board of Regents, the original purpose of its investigation was to answer two questions: “(1) Does Professor Churchill’s conduct, including his speech, provide any grounds for dismissal for cause, as described in the Regents’ Laws? And (2) if so, is this conduct or speech protected by the First Amendment against University action?” At the time that the Board of Regents began its investigation, it was plain that none of Churchill’s controversial statements – including his “little Eichmanns” comment – were outside the bounds of protected speech. An “investigation” of protected speech is itself improper and has a chilling effect on the free exchange of ideas. It is also improper to use clearly protected – though controversial – expression as a pretext to begin scouring the public record in hopes of finding examples of public statements that do not enjoy full First Amendment protection.
Second, even though the report is flawed in its purpose, its conclusions are substantively correct. Churchill’s speech was protected by the First Amendment, and the committee appears to have referred its research misconduct concerns to the proper university authority. The Standing Committee must now conform to all university due process regulations, and it must consider the research misconduct questions without reference to Churchill’s controversial expression or his status as a controversial public figure.