On February 18, 2010, the AAUP joined the American Civil Liberties Union (ACLU) and the National Coalition Against Censorship (NCAC) in filing an amicus brief (.pdf) in support of the appeal by Professor Ward Churchill to the Colorado State Court of Appeals. The joint brief supported Professor Churchil's efforts to enforce a Colorado jury verdict finding that he was wrongly dismissed from his tenured position at the University of Colorado in retaliation for exercising his First Amendment right to free speech. The AAUP's amicus brief argues that the trial judge was incorrect as a matter of law when he vacated the jury's verdict (.pdf) and found that the University of Colorado Board of Regents cannot be sued because they enjoy quasi-judicial immunity from suit. Furthermore, the brief argues that when a professor is dismissed for exercising his constitutional rights, the professor should be reinstated to his prior position within the university.
Background: Ward Churchill was a tenured professor at the University of Colorado for over a decade, during most of which he was a professor of ethnic studies. Following the attacks of September 11, 2001, Churchill wrote an essay titled On the Justice of Roosting Chickens, which argued that U.S. foreign policy provoked the attacks on the World Trade Center. This essay, among others, provoked a media frenzy when Churchill was asked to speak on his work at Hamilton College in February 2005 (an appearance that was ultimately cancelled). On February 3, 2005, the Board of Regents of the University of Colorado held a special meeting to discuss Churchill's publicized statements. The following month, after an investigation, Chancellor Philip DiStefano concluded that Churchill's specific comments about the attacks were protected by the First Amendment. Chancellor DiStefano also reported, however, that Churchill had been accused of unrelated academic misconduct, connected to his ethnic studies scholarship, which was being referred to the Standing Committee on Research Misconduct for further investigation. In June of 2006, the Standing Committee issued a report finding that Churchill had engaged in academic misconduct but splitting as to whether Churchill's academic misconduct warranted his dismissal. Soon after, Chancellor DiStefano issued Churchill a Notice of Intent to Dismiss. Churchill appealed that notice to the Privilege and Tenure Committee of the Faculty Senate.
The Privilege and Tenure Committee conducted an extensive review of Professor Churchill's scholarship. On April 11, 2007, the five member panel concluded that Churchill had engaged in academic misconduct; a majority of the panel, however, recommended against his dismissal. In June of 2007, University President Hank Brown recommended to the Board of Regents that Churchill should be dismissed from his tenured position. On July 24, 2007, the Board of Regents accepted the President's recommendation and terminated Churchill from his tenured employment at the University of Colorado. Soon after, Churchill filed suit in Colorado State District Court in Denver.
On April 2, 2009, following a lengthy jury trial in the Colorado District Court in Denver, a jury found that Churchill's protected speech - his writings about September 11 - was a substantial or motivating factor for the Board of Regents' decision to discharge him from his tenured position, and that the Regents would not have voted to dismiss him in the absence of his protected speech. The jury also awarded Churchill nominal damages, acknowledging that Churchill specifically testified that he did not want a monetary award and was only seeking his professorship back.
On July 7, 2009, the judge in the case overturned the juryﾒs verdict and ruled in favor of the Regents as a matter of law.
Ruling: The District Court first found that the Board of Regents cannot be legally sued, because they are comparable to a neutral body that hears appeals, much like a parole board or school board. The court found that because the Regents were immune from Churchill's claims, the Board could not be forced to reinstate Churchill to his tenured professorship nor could they be forced to pay Churchill damages. The court also found, irrespective of the Board's immunity, that reinstatement was an inappropriate remedy. The court reasoned that the jury's award of nominal damages indicated that Churchill suffered no actual damages, that reinstatement would result in interference in the academic process, that the relationship between the parties was irreparably damaged, and that his reinstatement would cause harm to third parties. Churchill promptly appealed.
Amicus Brief: The joint amicus brief filed by the AAUP, ACLU and NCAC argues that the judge should not have overturned the jury's verdict that Churchill's First Amendment rights were violated, and that the only reasonable remedy for his termination was reinstatement to his former position.
First, with respect to the award of "quasi-judicial immunity" to the Board of Regents, courts generally grant such immunity only when the decision-making body is neutral and independent from the underlying dispute. The Board of Regents was, however, the employer here, not a neutral judicial body. Additionally, the Board of Regents in Colorado is an elected body, making it difficult for them to be neutral when reviewing a highly politicized employment situation. The courtss decision to grant immunity to the Regents would in essence make it impossible for Colorado faculty members to sue where their employment had been affected as a result of their exercise of constitutionally protected rights.
The amicus brief also argues that the court abused its discretion when it held that Churchill was not entitled to reinstatement. The brief argues that a professor who is terminated because of his or her protected speech should be reinstated to his or her former position. Because the jury found that Churchill was fired due to his protected speech, the judge should have ordered the University of Colorado to reinstate him to vindicate his First Amendment rights. Furthermore, although deference to faculty committee decisions is generally appropriate, the faculty committee's determination that Churchill engaged in academic misconduct should not have influenced the judge's decision because the jury explicitly found that the Board of Regents still would not have fired him in the absence of his protected speech. In addition, a majority of the Privilege and Tenure Committee did not recommend that Churchill be terminated. Lastly, the brief argues that although animosity may exist between the University and Churchill, it is not unusual or even necessarily unhealthy for members of the university community to disagree on matters of significance, and normal disharmony between members of a campus community should not prevent reinstatement where constitutional rights are at stake.
Colorado Court of Appeals Decision: On November 24, 2010, the Colorado Court of Appeals issued a ruling upholding the district court's decision in all respects. The appeals court began by ruling that the Board of Regents of the University of Colorado had quasi-judicial "traditional judicial process" that it was "functionally equivalent to the judicial process"; the Regents, in their role as hearing officers, had professional independence; comments made by several of the Regents and the chancellor regarding Professor Churchill did not suggest a lack of impartiality; it was appropriate that the court could review the Regents' decision only for "abuse of discretion" rather than re-analyzing all of the issues the Regents considered ("de novo" review); and even an "entity" such as the University of Colorado was entitled to quasi-judicial immunity, particularly where (as here) the parties had agreed before trial that the university could raise any of the defenses that would have been available to the individual Regents.
The court next considered and rejected Professor's Churchill's assertion he was still entitled to reinstatement and "front pay" (pay for the period between the trial court's judgment and reinstatement). For somewhat technical legal reasons, based upon the language in a particular statute (42 U.S.C. ﾧ 1983), the court rejected Professor Churchill's argument. In addition, the appeals court ruled that the trial court had not abused its discretion in also denying reinstatement and front pay to Professor Churchill, and therefore declined to overturn its decision.
The last issue for the appeals court was Professor Churchill's claim that he was retaliated against in violation of his First Amendment rights. For the first part of that analysis, the court concluded that the university's investigation of Professor Churchill did not constitute an "adverse employment action," which is a required element of a claim of retaliation. The appeals court also noted that the university had a well-established method for investigating research misconduct, which primarily delegated authority to the faculty, and added that "Churchill's academic freedom did not include the right to commit research misconduct that was specifically proscribed by the University's policies and enforced through a system of shared governance between the administration and the faculty." Finally, the court rejected Professor Churchill's arguments that a reasonable employee would have been deterred from exercising his or her First Amendment rights in response to the investigation; that the motive of the university in initiating an investigation was relevant; and that cancellations of Professor Churchill's speaking engagements by third parties, the university's failure to process Professor Churchill's sabbatical request, or the university's alleged decision not to allow him to "unbank" courses constituted adverse employment actions.
The appeals court therefore affirmed the trial court's finding that the university and the Board of Regents had quasi-judicial immunity and affirmed the trial court's directed verdict for the university and the Regents on Professor Churchill's ﾧ 1983 First Amendment claim.
On May 31, 2011, the Colorado Supreme Court agreed to hear an appeal from Professor Churchill. The Court will be considering whether the university's investigation of a tenured faculty member's writings and essays are an "adverse employment action" under the First Amendment if the professor is terminated as a result of the investigation; whether the Regents of the University of Colorado are entitled to quasi-judicial immunity; and whether Professor Churchill should have received "equitable remedies" for being terminated in violation of the First Amendment.