Colorado Supreme Court: CU Regents Are Above the Law
Sept. 10, 2012
The Colorado Supreme Court has affirmed the lower courts’ decisions in Ward Churchill’s lawsuit against the University of Colorado. Click here to read its opinion.
Churchill’s attorney David Lane plans to appeal to the U.S. Supreme Court. According to Lane, “The court never said his First Amendment rights were not violated. They simply said the Regents are above the law, which is a dangerous precedent.”
Six years ago Ward Churchill was a professor of American Studies, chair of the Ethnic Studies Department at UC-Boulder, and the most-frequently cited Ethnic Studies scholar in the country. He was also the recipient of a number of awards for service to and scholarship at the University of Colorado-Boulder.
On Sept. 12, 2001 Ward Churchill’s reflections on the 9/11 attacks were published on an obscure website. His statements did not generate any appreciable controversy and, in fact, his expanded book version of that essay, On the Justice of Roosting Chickens(AK Press, 2003), received a prestigious human rights award.
In early 2005, Churchill and other defendants were acquitted of all charges arising from their protests of Denver’s Columbus Day celebration. Simultaneously, rightwing organizations—particularly Lynn Cheney’s American Council of Trustees and Alumni (ACTA)—decided to spotlight Ward Churchill and his 9/11 essay in their campaign against diversity and critical thinking in American education. These powerful organizations, with the enthusiastic collaboration of the media—particularly Bill O’Reilly, and the now-defunct Rocky Mountain News, generated intense political pressure to fire Churchill.
In response, the CU Regents convened an investigation of “every word” he had ever published or publicly spoken. Concluding that his speech was all protected by the First Amendment, and that his statements therefore did not provide defensible grounds to fire him, the Regents next launched a protracted and pretextual “research misconduct” investigation. The results of this deeply flawed and widely criticized process became their excuse to fire him in 2007. (For a debunking of CU’s investigation, see the Colorado AAUP Report, pp. 116-251.)
Churchill sued the University for violating his constitutional rights. In 2009, after a month-long trial, a Denver jury saw through the University’s charade. Their unanimous verdict was that the Regents of the University of Colorado had fired Ward Churchillnot for research misconduct, but in retaliation for speech protected by the First Amendment.
This being a politically unacceptable conclusion, the trial judge threw out the verdict on the grounds that the Regents had been absolutely immune from being sued in the first place. The Colorado court of appeals and supreme court have now affirmed that ruling.
The Bottom Line
* The Regents of the University of Colorado can fire a tenured professor in violation of the U.S. Constitution—i.e., on the basis of his/her race, gender, religion, or protected speech—so long as they orchestrate a pretextual internal investigation. If they follow this script, faculty members have no judicial remedy because the Regents will be protected by absolute “quasi-judicial” immunity.
* University employees may be subjected to investigation for exercising their constitutionally protected rights. Administrators who use such investigations to harass employees are protected by “qualified” immunity.
In 1823 John Marshall, Chief Justice of the U.S. Supreme Court, announced that American Indians did not really own the lands where they had lived since time immemorial. Acknowledging that one might be troubled by “the original justice of the claim that has been successfully asserted,” he stated frankly that “the Courts of the conqueror” were obliged to come to this conclusion. This result, he explained, may “find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.” Johnson v. McIntosh, 21 U.S. 543, 588-89 (1823).
The Colorado Supreme Court is not as honest as Justice Marshall was, but this is exactly what it has done in Churchill v. University of Colorado.
The University sacrificed constitutional rights on the altar of political expediency. Despite the jury verdict, the Colorado courts have been unwilling to uphold the Constitution. It is clear that we only have such “rights” as we are willing to vigorously and collectively defend.