Regular Torch readers may be familiar with FIRE’s previous coverage of the University of Colorado at Boulder (CU) Board of Regents’ decision to fire then-tenured professor Ward Churchill and the subsequent legal battle. This fight has now ended, as the Colorado Supreme Court ruled against him in September 2012 and the Supreme Court of the United States has declined to hear his appeal.
As FIRE reported in 2005, Churchill lost his position after a CU faculty panel determined that he had engaged in "plagiarism, misuse of others’ work, falsification and fabrication of authority." The investigation, though, had been initiated amidst a controversy over statements Churchill had made, including a reference to the victims of the September 11, 2001, World Trade Center attacks as "little Eichmanns." Churchill sued, alleging that he was in fact fired as retaliation for those remarks in violation of his right to free speech under the First Amendment.
Further complicating the matter was the issue of immunity—in essence, whether the Board of Regents’ decision could be reviewed in court at all. FIRE’s Stephen Henrick explained the result of the Colorado Court of Appeals affirming the trial court’s holding that the Board was immune from lawsuit because of its status as a quasi-judicial body:
[The decision] in essence shield[s] 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 [the American Council on Education] 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.
Former FIRE Justice Robert H. Jackson Legal Fellow Andrew Kloster, in a later Torch post, covered the Colorado Supreme Court’s decision to affirm the Court of Appeals and identified two particular errors in the state’s high court’s ruling: "(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." These two factors precluded Churchill from any remedy after he failed to receive due process from the university.
Reporting on the U.S. Supreme Court’s decision to hear Churchill’s appeal, Inside Higher Ed highlights an argument from CU’s brief asking the Court not to hear the case: that failure to "defer to academic judgment" on questions of academic misconduct "would make it impossible for faculty panels to act without fear of constant litigation." CU’s brief further argued that "a genuinely academic decision" by the faculty must receive deference in order to protect academic freedom. However, absolute immunity for the Board prevents an inquiry into whether the faculty is in fact making an academic decision about academic misconduct, or whether they are instead unconstitutionally making a decision based on protected speech.
It is a loss for free speech that Ward Churchill has run out of legal options and that the Colorado Supreme Court has set such a dangerous precedent for future cases of retaliation against professors in Colorado. Indeed, a channel for legitimate constitutional complaints must always remain open in order to protect the rights of university faculty members.