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.

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Hi Brian. Thanks for posting this. In reading the news reports I thought the stated reasoning was quite dubious. After reading and reflecting on the opinion I still think much of the reasoning is very problematic but that it raises a host of interesting problems. I'd love to have a chance to talk this over with Doug Laycock and David Rabban in person.

Certainly the trial judge could have come out differently, particularly on the issue of reinstatement, which the judge argues is a matter of equitable discretion. This boils down to whether a professor should be reinstated if (i) there are valid grounds for terminating tenure; (ii) he in fact is terminated for an invalid reason, in retaliation for "political speech"; (iii) the jury finds the University, acting within its discretion, would not have terminated him were there only the valid grounds; and (iv) the relevant academic committee decides by a 3-2 majority that the valid grounds do not warrant terminaing tenure.

Much of the judge's reasoning on this point is tendentious. In particular, the judge argues he cannot ignore the jury's finding of no damages but he basically ignores the jury's finding that the University would not have terminated Churchill for the valid reason. And in an ironic twist he argues that principles of academic freedom justify not forcing the University to take Churchill back without acknowledging that the body in the University tasked with making this decision for the academic body decided otherwise.

Other aspects of the decision are wonderful fodder for a Remedies exam. I was unaware of the body of cases extending quasi-judicial immunity to people like the individual defendants. I would have thought the analogy broke down because of the unavailability of mechanisms to challenge a decision. Note the judge's response--Churchill could go to court and have the decision reversed. One way to read this is Churchill sought the wrong remedy.

The bit on the unavailability of an injunction because of the 1996 amendments to Section 1983 is questionable on many levels. Why isn't Churchill entitled to a declaratory judgment that he is professor in good standing absent a constitutionally legitimate decision to terminate his tenure? Why does this statute protect University officials (who would reinstate Churchill in fact) as well as the "quasi-judges"? While I was dimly aware of the statute from teaching Remedies I had thought its purpose was fairly narrow and directed to cutting back on what federal courts could do in intervening in state administration of criminal justice.

The reasoning that the award of $1 damages precludes reinstatement is closest to my own scholarly interests. This seems to me wrong, but interestingly so. Just because a fact finder determines a right is of no pecuniary value does not mean the right is of no value to the right holder. But the judge cites the right case for the contrary point (which is deeply wrong-headed but on the books). Many important rights (tenure for a law professor who skills have market value, voting, the right to political speech) are of little or no economic value and, in some circumstances, not of character such that we would say the infringement of the right cause compensible emotional disturbance.

I have to run so I don't have a chance to reread what I just wrote. So I close with apologies for the inevitable sloppiness.

Posted by: Mark Gergen | Jul 9, 2009 5:08:06 PM

Note that while paragraph 11 of the opinion outlines the role of the Colorado Board of Regents, it neglects to mention that the law governing the election of Regents sets up the Board as a directly-elected *partisan* body. See This is, in my limited experience, unusual for boards of education.

I don't assert that this bears in any way on the Board's position or actions, but it seems an interesting piece of background for those who might assume, as I did until I was a Colorado voter, a non-partisan Board of Regents. See, e.g., (Cal.) and (Wash.), but see (Conn., members appointed by various partisan elected officials).

Posted by: Scott Matheson | Jul 11, 2009 10:49:27 AM

The $1 award was reportedly the result of a compromise between the jurors:

Posted by: Keith Ramsay | Jul 12, 2009 11:59:54 PM

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