Colorado Supreme Court Takes Up Ward Churchill's Case

May 31, 2011

The Colorado Supreme Court agreed on Tuesday to take up the long-running legal battle between Ward Churchill and the University of Colorado, which fired him as an ethnic-studies professor at its Boulder campus after he became the focus of outrage for a provocative essay he wrote about the September 11, 2001, terrorist attacks.

In a significant victory for Mr. Churchill's lawyers, the State Supreme Court agreed to consider all three of the legal questions raised in their appeal to it. The first is whether lower state courts erred in rejecting the idea that the university's investigation of Mr. Churchill, in itself, amounted to an adverse employment action. The second is whether the lower courts also erred in holding that the University of Colorado's Board of Regents is a quasi-judicial body and thus immune from such lawsuits. The third is whether such courts were incorrect in holding that, under federal law, the board's status as a quasi-judicial body precludes Mr. Churchill from suing it to get back the job he was dismissed from in 2007 for alleged research misconduct.

"It is a bright day for the First Amendment, for academic freedom, and for tenure," Mr. Churchill's chief lawyer, David A. Lane, said in an interview Tuesday. Arguing that a state appeals court's ruling against Mr. Churchill "eliminates any remedy for a professor fired in violation of the First Amendment," he said, "hopefully, the Colorado Supreme Court is going to right that wrong."

A spokesman for the Board of Regents, Ken McConnellogue, issued a written statement that said: "Every judge who has heard this case has found the University of Colorado acted appropriately in terminating Mr. Churchill. We believe the Colorado Supreme Court will do the same."

When Mr. Churchill's case went to trial in state court in Denver, the presiding judge, Larry J. Naves, directed the jury not to consider whether the university's investigation of the professor was, in itself, an act of retaliation. Mr. Churchill nonetheless appeared to have prevailed when the verdict was read. Although the jury awarded him only a token $1 in damages, it agreed that the board had violated his First Amendment rights in dismissing him at the urging of university officials, seeming to set the stage for Judge Naves to order his reinstatement.

Weeks later, however, Judge Naves instead vacated the jury verdict, accepting the university system's arguments that the Board of Regents is a quasi-judicial body and, as such, is immune under federal law from being sued for either monetary or nonmonetary damages.

Mr. Churchill's lawyers then took the case to the Colorado Court of Appeals, arguing that Judge Naves had erred in holding that the university's investigation of Mr. Churchill was not an adverse employment action and challenging his acceptance of the board's claim it had acted as a quasi-judicial body in dismissing him. His legal team also argued that, while judicial bodies are immune under federal law from lawsuits seeking either monetary or nonmonetary damages, the federal courts have not interpreted the law as providing quasi-judicial bodies the same immunity in litigation seeking nonmonetary damages, such as job reinstatement. The appeals court sided with Judge Naves on all points.

In asking the state Supreme Court to take up the case, the lawyers for Mr. Churchill argued that, in deciding Mr. Churchill's fate, the regents were not independent enough from the university administration for their actions to be considered as analogous to those of other quasi-judicial bodies, such as hearing boards. They also argued that such immunity is intended to shield individual officials, and not governing boards, from liability.

The university system's lawyers, in urging the State Supreme Court not to take up the case, had argued that federal courts have been in agreement that public agencies' investigations of their employees are not in themselves adverse job actions and, in fact, serve the public good. The system's lawyers also argued that the board's proceedings against Mr. Churchill offered him all of the safeguards of a regular judicial proceeding, including the right to a hearing where his lawyers could cross-examine the witnesses testifying against him.

The State Supreme Court is expected to take up the case sometime after late fall and hand down its decision early next year.