On Monday, the Colorado Supreme Court upheld a lower court's opinion (PDF) disposing of former University of Colorado at Boulder (CU) professor Ward Churchill's claims against CU, reports The Denver Post. FIRE has closely monitored Churchill's case for years. In 2005, FIRE wrote a letter to CU concerning Churchill's firing and issued an analysis of the university's report.
The Colorado Supreme Court held the following:
First, we hold that the Regents' decision to terminate Churchill's employment was a quasi-judicial action functionally comparable to a judicial process. Hence, the Regents are entitled to absolute immunity concerning their decision to terminate Churchill. Second, we hold that the trial court did not abuse its discretion when it ruled that Churchill was not entitled to the equitable remedies of reinstatement and front pay. Third, we hold that Churchill's bad faith investigation claim is barred by qualified immunity because the Regents' investigation into Churchill's academic record does not implicate a clearly established statutory or constitutional right or law.
As we have noted before, the most troubling aspect of the intermediate court ruling (PDF) was its analysis of immunity (i.e., who can and cannot be sued). The Colorado Supreme Court decision upholding this ruling does not remedy our concerns.
The two parts of the ruling that appear to be most erroneous are (1) its characterization of the CU termination proceeding as "quasi-judicial" and (2) its characterization of retaliation for protected speech as not being "clearly established" First Amendment law. Both of these rulings matter because either one of them provides justification for holding that CU cannot be sued for money damages, which is exactly what the court did.
In assessing whether the termination proceeding was "quasi-judicial," and whether the Regents of CU were therefore entitled to absolute immunity from a lawsuit for monetary damages, the Colorado Supreme Court weighed a number of factors, following the framework established by the U.S. Supreme Court in Cleavinger v. Saxner, 474 U.S. 193 (1985). Without analyzing each factor, and recognizing that no one factor in the analysis is controlling, the Colorado Supreme Court's characterization of the CU termination process as containing numerous "procedural safeguards" is questionable. While it is true that Churchill presented his case before four CU bodies prior to his single, closed-door meeting with the Regents, the Regents still retained absolute authority to fire him: the recommendations of the faculty carried no binding weight. As Churchill noted in his brief, none of CU's procedures cabined the decisionmaking authority of the Regents. Another procedural safeguard might have been allowing Churchill an opportunity to contest his firing on the record. Instead, Churchill only met once with the Regents in a closed-door meeting for which there is no record. This is critical: while the Colorado Supreme Court noted that there is an available statutory remedy to overturn "arbitrary" action of the Regents, without an on-the-record hearing before the Regents, proving "arbitrary" action or bias is an impossible task.
Ultimately, Churchill does not seem to have enjoyed any significant due process protections at CU, nor any effective "procedural safeguards" that could justify insulating the CU Regents from lawsuit under Cleavinger. At the end of the day, the only legal recourse Churchill had was his constitutional lawsuit. Nevertheless, in finding that the termination proceeding was "quasi-judicial," the Colorado Supreme Court determined that the CU Regents needed absolute immunity from lawsuit to ensure the "quality" of their decisionmaking. But there is seemingly little "quality" to protect; the Regents' hearing process is seemingly devoid of any of the protections one might expect for the employee being terminated.
The second erroneous holding is that "a reasonable public official would not know that the initiation of an employment investigation in response to protected speech would be unlawful." In plain English, the Colorado Supreme Court has held that if you are a reasonable boss in a Colorado government agency, and someone says something that the First Amendment protects—"I'm voting for Obama," or "I'm voting for Romney," for example—you would have no idea that it is illegal to start investigating that person to find an excuse to fire them. That would seem to be a stretch under qualified immunity analysis. Exercising your First Amendment rights should not provide your public employer an excuse to embark on a fishing expedition in order to find a reason to fire you, but that's exactly what happened to Ward Churchill, and that's exactly the process the Colorado Supreme Court upheld in this questionable decision.
Churchill is already vowing to appeal to the United States Supreme Court, and we will continue to watch his case closely. The carte blanche granted to the Regents in this case sets damaging precedent for professors at public universities in Colorado and across the country.