Thursday, July 9, 2009
Attention State University Faculty in Colorado: You Have Almost No Remedy if the Regents Violate your First Amendment Rights
That seems to be the upshot of this extraordinary opinion by district judge Larry Naves in the Ward Churchill case, about which more in a moment.
To recap: Bill O'Reilly and other far right pundits called attention several years ago to Churchill's offensive comparison of the 9/11 victims to Adolf Eichmann, made in the context of an article that was obviously protected by the First Amendment and by any morally sound principle of academic freedom. Political leaders and even one Colorado law professor called for him to be fired for his political speech, but university leaders took the prudent position that this would be illegal. Instead, the University of Colorado commenced an investigation of allegations of academic misconduct against Professor Churchill, which resulted in a lengthy, but rather underwhelming, report that found one actual instance of plagiarism and found that he had cited to articles he had ghost-written, and went on at some length disputing his footnoting practices in other articles. (The one plagiarism charge against Churchill that actually stuck would hardly have distinguished him among Harvard Law School plagiarists, none of whom were fired [or should have been fired for their offenses].) Various university committees were divided on the appropriate punishment for his academic misconduct (termination was the minority view), but in the end, the university regents (with one dissenter) voted to terminate his employment.
Since Churchill's work, scholarly and pedagogical, had been reviewed many times during his tenure at Colorado, and he had received promotions, salary increases, and even awards from the university, Churchill took the prima facie plausible position that he was being punished for his constitutinoally protected speech. At the conclusion of trial, a jury agreed, and found that Churchill was, indeed, fired for his offensive speech, and would not have been fired if it had not been for that speech. However, the jury gave only one dollar in damages, for reasons that are still opaque. Churchill asked the court for reinstatement, a possible, but certainly not required, remedy in this context (monetary damages are, I am told by colleagues, the more common remedy in wrongful discharge cases like this).
That brings us to the present, and the decision of Judge Naves. There is a decent summary account of the Naves decision here and an even better one here (though the latter appears not to realize the possibly catastrophic implications of the decision). Judge Naves vacates (par. 69) the jury decision (so much for the First Amendment violation!) on the grounds that the Regents, in deciding to fire Churchill, enjoy a "quasi-judicial immunity" from suit! The key paragraphs of the opinion are 22-49. Although judges, prosecutors, jurors, and administrative hearing officers are the usual beneficiaries of judicial and quasi-judicial immunity, the court is able to identify a handful of cases similar to this one. The implication seems to be that, as long as the Regents have in place procedural safeguards, they can fire faculty members for their offensive speech, though of course, they can't give that as the reason! (But remember: the jury here found that was the real reason, though that finding was vacated.) And the fired faculty member only has a remedy if they can show an "abuse of discretion" by the Regents given their quasi-judicial function (par. 47).
Signed thoughts from readers with knowledge of the legal issues raised by the finding of quasi-judicial immunity are welcome. Submit your comments only once, they may take awhile to appear.