Colorado Supreme Court rejects Ward Churchill appeal – University of Colorado not forced to re-instate to faculty

The Colorado Supreme Court, in a 55-page ruling issued Monday morning, rejected fired University of Colorado professor Ward Churchill’s appeal and request to be re-instated to the CU faculty.

Churchill has already announced his plans to appeal the Colorado Supreme Court decision to the U.S. Supreme Court.

As reported by Clear The Bench Colorado at the end of May, Churchill’s attempts to portray the case as an issue of “academic freedom and tenure at universities” were undermined by the backing of many academic groups (including the American Council on EducationNational Association of Independent Colleges and Universities, the American Association of State Colleges and Universities, and the Association of American Universities) for the CU Board of Regents’ decision (and right) to fire Churchill.

In the academic groups’ amicus brief filed with the Colorado Supreme Court supporting the University of Colorado’s position, the groups state that

the principles of academic freedom should result in support for the university’s position. “Because universities are the entities best suited to make decisions about their faculties, they are entitled to autonomy in adjudicating claims regarding academic integrity.”

The Colorado Supreme Court apparently found this argument persuasive:

As the Supreme Court recognized in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), one of the “essential freedoms” of an institution of higher learning is “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”  Id. at 312 (quoting Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring)).  This  reasoning strongly suggests that the Regents must be granted a certain degree of autonomy in their employment decisions to ensure that they are not  forced through litigation to retain a professor who has engaged in repeated instances of academic dishonesty.  To hold otherwise could compromise the University’s institutional mission and integrity.

The court rejected Churchill’s claim that his firing constituted a violation of his 1st Amendment (free-speech) rights (he had argued that the investigation into his academic fraud was based on “bad faith” retaliation for his controversial – but protected – political speech) on grounds of the CU Board of Regents’ immunity from such claims:

we hold that Churchill’s bad faith investigation claim is barred by qualified immunity because the Regents’ investigation into Churchill’s academic record does not implicate a clearly established statutory or constitutional right or law.

In fact, the entire ruling hinged on “quasi-judicial immunity” exercised by the CU Board of Regents:

We ultimately conclude that the Regents are entitled to absolute immunity because their role as quasi-judicial public officials was functionally comparable to the role of a judge.

Although we applaud the court’s ruling in rejecting Churchill’s claim and attempt to use the courts to force the University of Colorado to re-instate him on the faculty, some aspects of the ruling are troubling – in particular, the court’s embrace of a principle that the actions of public officials may be above the law and beyond accountability:

If a public official’s action falls under the auspices of absolute immunity, then the doctrine provides that public official with complete and total  immunity from suit, irrespective of how egregious or unlawful the action may have been.

Ultimately, the court’s ruling in No. 11SC25, Churchill v. University of Colorado at Boulder affirmed and strengthened the power of the CU Board of Regents to “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.”

On the whole, this should be viewed as a victory for the ability of a university’s governing board (here, the CU Board of Regents) to determine, decide upon, and implement program and personnel actions in pursuit of its “institutional mission” – with the precautionary note that affirming a shield of “quasi-judicial immunity” for the Board’s decisions raises the spectre of potential violations of fundamental rights of faculty, students, or shareholders (taxpayers) behind such shield in the future.

Our View:
Free speech and academic freedom are important rights worthy of being defended, but Ward Churchill’s transparent attempt to extend his played-out “fifteen minutes of fame” and violate the rights of others (including forcing the University of Colorado – and by extension, Colorado taxpayers – to provide him a sheltered, comfortable livelihood) is, contrariwise, contemptible.

Clear The Bench Colorado will, with your support, continue to promote transparency and accountability in the Colorado judiciary, informing the public to increase awareness of the substantial public policy implications of an unrestrained activism and political agendas in the courts.  We will continue to work to educate voters and provide information of relevance related to the judicial branch, and to provide useful and substantive evaluations of judicial performance.

However, we can’t do it alone –  we need your continued support; via your comments (Sound Off!) and, yes, your contributions.  Freedom isn’t free -nor is it always easy to be a Citizen, not a subject.

Ultimately, though – it’s worth the effort.

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