The University of Colorado could fire professor Ward Churchill for plagiarism and fabrication as soon as next month, but the academic misconduct case is likely to linger in the courts for years, legal experts predicted Wednesday.
The ethnic-studies professor most likely will take CU to federal court if administrators fire or suspend him without pay as recommended by a committee that examined his writings, his attorney, David Lane, said.
Churchill’s lawsuit would accuse the university of retaliating against the tenured professor because of his essay saying some World Trade Center terrorism victims were not innocent and comparing them to a Nazi bureaucrat, Lane said.
"They now have their excuse that took them a year and a half to put together to fire him," he said. "When they fire Ward Churchill, which they will, it will be deemed retaliation."
But some legal analysts questioned whether Churchill has a case, now that a committee of scholars has found him guilty of stealing others’ work and fabricating historical facts.
The origin of the investigation into Churchill’s work smacked of punishment for free speech, but the committee’s condemning report released Tuesday might deflate Churchill’s case, said attorney Greg Lukianoff, president of the Foundation for Individual Rights in Education.
"If their evidence holds up that a professor did plagiarize, of course they can fire somebody for that," he said.
But Lukianoff said he didn’t doubt the matter would end up in court anyway.
"I don’t think this controversy is going to be over for a long time," he said. "This issue has been such a lightning rod about the nature of academic freedom and free speech and who is teaching on our campuses."
Tom Gonzalez, a Tampa, Fla., attorney who represented the University of South Florida in the firing of professor Sami Al-Arian, said Churchill would have a "very, very tough row to hoe in terms of litigation."
Al-Arian was fired after being accused of associating with terrorists and pleaded guilty to conspiracy.
"You can’t be fired for saying things that are unpopular," Gonzalez said. "But that all goes out the window if in fact he’s guilty of plagiarism."
Attorneys also dismissed Churchill’s claims that CU has violated his privacy by issuing press releases about the investigation, a personnel matter.
"Mr. Churchill may have indeed waived his own right to privacy because of the circumstances he generated," said Sheldon Steinbach, general counsel at the American Council on Education in Washington, D.C.
At this point, Steinbach added, the origin of the investigation is immaterial.
"The underlying facts are what they are," he said. "How it’s brought to the university’s attention is practically irrelevant."
CU spokesman Barrie Hartman said Churchill brought the publicity on himself.
"I would venture to say that Ward Churchill has made all this stuff very public himself, not the university," he said.
CU attorneys would not comment about whether they are concerned about a potential lawsuit. Administrators who will decide Churchill’s fate – arts and sciences dean Todd Gleeson, provost Susan Avery and chancellor Phil DiStefano – also would not comment.
Hartman said university officials wanted to "let the process play out. We’re not going to respond to any of those kind of comments."
If administrators decide to fire Churchill, he would get a hearing before a panel of faculty from the privilege and tenure committee. University lawyers and Churchill’s lawyer would argue before the panel, which would decide within two weeks or so whether the university should dismiss him.
Churchill would have no more recourse for appeal within the university after the panel’s decision, Hartman said.
Several attorneys said no law would prevent CU from suspending Churchill without pay for several years. Lynn Feiger, a Denver lawyer who specializes in employment law, likened it to attorneys who are disbarred for years.
Churchill’s attorney said he has no doubt CU will fire him.
"The writing is on the wall," Lane said, adding that he was "disappointed at how harsh the report was." The committee, which Lane said was stacked with people Churchill objected to, simply "rubber-stamped" administrators’ plans to get rid of the professor, he said.
Lane compared Churchill to Galileo, who was tried for heresy in the 1600s for saying the Earth orbited the sun.
"The committee has determined what the historical truth is," he said. "Churchill has his versions of the truth."
Staff writer Arthur Kane contributed to this report.
Staff writer Jennifer Brown can be reached at 303-820-1593 or firstname.lastname@example.org.
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