Inside Higher Ed, July 8, 2009
Judge Larry J. Naves ruled that the University of Colorado Board of Regents had "quasi-judicial immunity" when it voted to fire Churchill from his tenured position teaching ethnic studies, after faculty panels found that he had committed multiple instances of research misconduct. Naves vacated an April ruling by a jury in the case that found that Churchill had been inappropriately fired. Based on that ruling, Naves could have ordered Churchill reinstated or ordered Colorado to pay him -- issues that would have been moot given that Naves vacated the jury's decision. But Naves went on and said that, even based on the jury's findings, Churchill was not entitled to his job back, or to any money.
And Naves went out of his way to stress that he found the university's findings of misconduct credible, and that the return of Churchill to the faculty would be damaging.
Not surprisingly, the university praised the decision and Churchill denounced it. Phil DiStefano, chancellor at the university's Boulder campus, said in a statement:
In an interview Tuesday evening, David Lane, Churchill's lawyer said that he would "absolutely, positively appeal." The decision, Lane said, "sends out to America a very, very bad message that if the University of Colorado fires you because they don't like what you said, don't look for justice from this court."
Lane said that an appeals court decision would probably be around a year away -- extending the life of a controversy that started in 2005.
Ward Churchill started teaching at Boulder in 1978 and won tenure in 1991. The author of numerous books and essays about Native American history, Churchill uses fiery rhetoric to describe the wrongs committed by the United States. In the years prior to 2005, Churchill became a popular figure on the campus lecture circuit -- although he tended to attract attention from those who shared his views, and he was not widely known outside academe.
Then he accepted an invitation to speak at Hamilton College, a liberal arts college in upstate New York, in early 2005. Some professors there circulated some of his writings, including an essay with the now notorious remark comparing World Trade Center victims on 9/11 to "little Eichmanns." Within days, the controversy spread, with talk radio hosts, politicians, and the survivors of 9/11 victims expressing shock that a man with such views would be given a platform on a college campus. Hamilton initially stood by its invitation, on academic freedom grounds, but in the end called off the appearance, citing threats of violence.
At that point, the discussion shifted to Colorado, where numerous politicians -- from the governor on down -- were demanding that Churchill be fired. After several weeks of reviews, the university announced that the 9/11 essay could not be grounds for dismissal, given Churchill's rights to free expression and academic freedom and the lack of any evidence that his political views interfered with his teaching. But at the same time, Colorado announced that Churchill could be investigated and possibly fired for scholarly misconduct. That was because -- once the controversy broke -- scholars, journalists and others checked out Churchill's scholarship and quickly heard from researchers who said that Churchill had plagiarized or distorted their work.
Colorado then started a series of investigations in which various faculty panels examined the charges and considered potential punishments. While the panels were far from united in urging Churchill to be fired, there was consensus that he was guilty of repeated, intentional academic misconduct -- plagiarism, fabrication, falsification and more. That was May 2006. After still more reviews, the University of Colorado Board of Regents fired him in July 2007. Churchill maintained throughout that he was a victim of his politics -- although at least some of those who accused him of inappropriately using their academic work are scholars of Native American history who share his belief that those they studied were treated in horrific ways.
Churchill's suit charged that political concerns dominated the review of the charges against him. Significantly, under Colorado law, the jury that found in his favor did not have to believe that he never committed research misconduct (although he has repeatedly denied doing so). Rather the standard was that to find in Churchill's favor, the jury had to determine that his political views were a substantial or motivating factor in his dismissal, and that he would not have been fired but for the controversy over his opinions.
The jury's ruling set the stage for a hearing last week, at which Judge Naves heard testimony from Churchill's supporters that he should get his job back, and from university officials arguing against that.
Naves started his ruling with an analysis that led him to throw out the jury's findings. He noted that the university had preserved a defense of legal immunity when it argued the rest of the case, because that issue is decided by a judge not a jury. He then reviewed why he viewed the Board of Regents as immune in the case, as a "quasi-judicial body." Churchill maintained that the entire process of reviewing the allegations against him was tainted, including the final review by the Board of Regents. But Naves said that the procedures in place -- multiple layers of review, the chance for Churchill to question witnesses, introduce evidence, receive guidance from a lawyer and so forth -- both provided for a reasonable process and gave the regents protection from being sued.
Then Naves turned to the issue of whether Churchill should get his job back. Naves stressed the importance of colleges and universities making their own determinations on academic matters, including research misconduct. He said that faculty committees, not courts, should "define the standards of academic misconduct."
While leaders of the ethnic studies program backed Churchill's return, Naves said that their program would be damaged with Churchill back on the faculty. "The evidence was credible that Professor Churchill will not only be the most visible member of the Department of Ethnic Studies if reinstated, but that reinstatement will create the perception in the broader academic community that the Department of Ethnic Studies tolerates research misconduct. The evidence was also credible that this perception will make it more difficult for the Department of Ethnic Studies to attract and retain new faculty members. In addition, this negative perception has great potential to hinder students graduating from the Department of Ethnic Studies in their efforts to obtain placement in graduate programs," Naves wrote.
More broadly, Naves said that "I also fully understand" the concerns expressed by other faculty members that Churchill's presence on the faculty would make it difficult to hold students to "high standards of honesty in research and writing."
Finally, Naves rejected the idea that Churchill deserved compensation for being dismissed as he was. Naves wrote:
Lane, Churchill's lawyer, said that the comments by the judge
Cary Nelson, national president of the American Association of University Professors, said that
To cite one example, he noted that Naves noted critical statements Churchill made about the university administration to argue that relations between Churchill and the university were so bad that he couldn't return to the faculty.
Ultimately, Nelson said, the jury recognized
But DiStefano, the Boulder chancellor, said in his statement that the ruling was a victory for professors.