A jury may have decided in April that University of Colorado at Boulder officials violated former professor Ward Churchill’s first amendment rights when firing him, but a Denver District Court Judge has ruled that Churchill will neither receive his job back nor receive front pay for his termination.
“Professor Churchill’s own statements during the trial established that he has not seriously pursued any efforts to gain comparable employment, but has instead chosen to give lectures and other presentations as a means of supplementing his income,” wrote Judge Larry J. Nye in his public ruling on July 7. He added, “Under these circumstances, I do not believe an award of front pay is appropriate.” Judge Nye also vacated the jury’s decision, finding in favor of the defendants—a decision which prompted the professor to appeal.
Churchill is perhaps best known for his essay comparing the September 11, 2001 victims to “little Eichmanns,” a reference to Nazi figure Adolph Eichmann. While the alleged reason for firing Churchill was his fabricated and plagiarized research, conduct “below minimum standards of professional integrity,” the jury held that the aforementioned comment influenced the decision to dismiss the professor.
In his ruling Judge Nye concluded that Churchill had demonstrated too much animosity to reinstate him at the University and that, in light of a return, Churchill’s past record of “research misconduct” could harm CU Boulder’s reputation and students graduating from the Department of Ethnic Studies.
“A random group of homeless people under a bridge would be far more intellectually sound and principled than anything I’ve encountered at the university so far,” Judge Nye quoted Churchill.
Department Chair Emma Perez disagreed. “[Students] are lining up to take classes with Ward…In the academe throughout the nation, people see Ward as a hero,” she told the Denver Post on July 2.
The Associated Press reported on July 7 that “University officials also said they feared other teachers would leave if Churchill returned,” but did not name potential candidates for an exodus.
In his ruling, Judge Nye also held that reinstatement was not “necessary to prevent a ‘chilling effect’ on the University of Colorado’s campus” and that there was “no credible evidence” that professors had discontinued “academic or professional activities” as a result of Churchill’s departure or that they were subjected to retaliatory action.
Foundation for Individual Rights in Education (FIRE) President Greg Lukianoff told the Chronicle of Higher Education that “No matter how people feel about Ward Churchill…they should recognize that ultimately what the court is saying is that a professor was fired in violation of his free-speech rights, yet there is nothing to be done about it.”
“The message in this ruling is that if your First Amendment rights are violated by the University of Colorado, don’t look to Denver District Court for justice, because justice did not prevail in this instance,” Churchill’s lawyer David A. Lane told the Chronicle.
Lane’s ability to collect the $1.2 million in legal fees depends on his ability to win on appeal, since he cannot directly bill Churchill, writes Tom McGhee for the Denver Post. As the winning party, CU intends to bill Churchill for more than $10,000 in legal fees but a “judge could stay the award of costs until the appeal is complete.”
One of the major issues raised by an appeal will likely be Judge Nye’s decision that the Colorado Board of Regents was acting in a “quasi-judicial authority” when the then-tenured professor was fired. Therefore, even though the jury found that Churchill’s first amendment rights were violated, Board of Regents officials acting in a quasi-judicial capacity cannot be sued as private individuals for the hiring and firing of faculty.
The judge concluded that, unlike in Kansas, Colorado’s state constitution grants the Regents discretionary powers outside those prescribed by state law. (In other words, because the state constitution does not require the Colorado Board of Regents to seek legislative authority, the state must proactively legislate in order to affect state Regents Board decisions).
This “quasi-judicial” authority extends down to the school district level in Colorado. “Just as the Tenth Circuit has extended quasi-judicial immunity, the Colorado Supreme Court has also determined that a school district’s termination of an employee after a contested hearing is a quasi-judicial function,” wrote Judge Nye.
CU President Bruce Benson has expressed his satisfaction with Judge Nye’s classification of the Colorado Regents as a “quasi-judicial”—and therefore immune—body.
Bethany Stotts is a staff writer at Accuracy in Academia.