Paul Secunda (Mississippi) helpfully details the obstacles confronting a First Amendment claim by a public employee in light of Pickering v. Board of Education, 391 U.S. 563 (1968). Professor Secunda writes:
Churchill must jump through the following hoops to succeed on a First Amendment Pickering claim: (1) that he was not speaking pursuant to official duties (easy); (2) that he was speaking on a matter of public concern (pretty obvious); (3) that his rights to free speech outweigh the University's right to run an efficient workplace (not so obvious); (4) that his speech was the motivating and substantial reason for his termination (will depend on all the evidence); and (5) Colorado would not have made the same decision even in the absence of the protected speech (only if Churchill can show that he did not engage in research misconduct that amounted to cause for his termination).
Professor Secunda suggests that (3) and (5) will be the main obstacles. The University, of course, has made a point throughout of saying this is not about his speech, but about his scholarship, so even if they now argue (3) in court, they are going to have a tough time establishing it at trial given their many public pronouncements. (5), on the other hand, will clearly be a central issue
The blogospheric commentary on the case has been, predictably, depressing: not just from the random know-nothings who make up most of the blogospheric community, but even from professional people. So, e.g., historian Ralph Luker writes on his blog as follows:
Leiter may very well be correct [about Churchill prevailing on First Amendment grounds], because of many public statements calling for his dismissal early on in the controversy. The University obviously sought to sanitize the process via two-and-a-half years of due process hearings. Leiter is certainly too dismissive of the gravity of charges of academic misfeasance against Churchill and of the fact that Churchill was convicted of those charges by his academic peers. My own sense is that he ought not to have been hired into a faculty position in the first place and that he ought not subsequently have been tenured. I think it's fair to ask Leiter whether, given what he now knows about Churchill's professional work, he would recommend him for a faculty position at UT, Austin.
Those who have read the actual report will decide for themselves how "grave" the charges of academic misconduct are; some are significant, others are just weird. But my only contention all along has been that, even accepting the charges at face value, it will be difficult for the university to establish that they are the reason for terminating Professor Churchill. (If we may have a brief reality check here: everyone knows that Professor Churchill was pursued because of his offensive speech. What Churchill must now show is that the punishment was disproportionate to the real or alleged malfeasance precisely because of his constitutionally protected but offensive speech.)
But what is decidedly weird about Dr. Luker's comments is that he thinks it relevant whether Churchill should have been hired in the first place or whether I would have hired him! Now, personally, I'm not a big fan of academic departments organized around "identity politics" issues (or their right-wing analogues), but that is neither here nor there in this discussion. If everyone whose work I think is junk, or who ought not be appointed at UT Austin, should have their tenure revoked, then the ranks of tenured faculty in America will be rather thin! But, again, that is wholly irrelevant. (Except for the infamous essay, I've not even read Churchill's work, so have no opinion about it--but, again, that has no bearing on the issue at hand. I have, however, unlike most of the critics, read the investigative report!)
The University of Colorado at Boulder decided to have a Department of Ethnic Studies. They decided to hire Professor Churchill to teach in it. They reviewed his performance, and decided to grant him tenure. They reviewed his performance at various intervals thereafter, and even gave him various awards and pay increases. Having done all that, they can not fire him because of his offensive speech. Arguably, they may be able to fire him for academic misconduct, but that is precisely the issue to be litigated. Churchill will presumaby argue at trial that (1) the allegations of academic misconduct can not be sustained (I have not reviewed with care the arguments on this score, some seem stronger than others--a sampling can be found here); and (2) even if some of them can be sustained, they do not rise to the level that warrants termination.
Regarding (2), attention will presumably be called to how similar cases have been handled both at Colorado and elsewhere. I am not aware of a case in which comparable allegations of academic misconduct have resulted in termination of a tenured faculty member, but I may simply be ignorant of pertinent cases. In a case at Penn State, for example, a tenured math professor was fired after evidence of far more extensive plagiarism than alleged in the Churchill case. A survey of several plagiarism cases by the Chronicle of Higher Education found that "not every academic plagiarist is shown the door. In one case, for instance, a university committee agreed that plagiarism had occurred but decided that no action was necessary." (This was not, by the way, a reference to the plagiarism issues that arose at Harvard Law School several years ago, which also resulted in essentially no disciplinary action against the law faculty involved, even though the plagiarism was, again, far more serious than that alleged in the case of Churchill.) The specific allegations of academic misconduct comprise only a small portion of Churchill's written output; some of the allegations really are correctly characterized, as John K. Wilson has argued, as "footnoting" disputes; and the most serious allegations, about plagiarism, even accepting the investigative committee's findings at face value (which Churchill surely will not in court), are far less serious than some of the other recent cases (linked above) that did not result in termination.
For all these reasons, I am inclined to think that Churchill's chances of prevailing in court are good. And since I am rather confident that the motivations of U of Colorado President Brown in recommending that Churchill be fired were political and venal (he has already launched a fundraising pitch based on the firing!), rather than scholarly (Brown is not an academic or a scholar, and never has been), there would be some justice for the integrity of tenure and academic freedom in such an outcome.