In a remarkable victory for the University of Colorado (“CU”), former Ethnic Studies professor Ward Churchill’s prior apparent court victory over the University for wrongful termination was vacated by the trial judge. District Court Judge Larry J. Naves, in a detailed order (which you can view in pdf form here), not only refused to reinstate Churchill in his teaching position but also refused to award him any monetary damages.
While Ward Churchill’s lawyers will certainly appeal, Naves’ order seems all but bullet-proof, as he is not simply overruling April’s jury verdict but rather vacating it “as a matter of law” based on the fact that the Regents of the University of Colorado were functioning in a “quasi-judicial” manner and therefore have immunity from lawsuit against their actions.
It is infrequent for the firing of a college professor to make national news, but Churchill was a nationally known self-promoting fraud who attempted to defend repeated academic misconduct (pdf) by arguing that the misconduct was a side issue and that he was actually fired for an essay he wrote comparing victims of the September 11, 2001 attacks on the World Trade Center to “little Eichmanns.”
It is likely that Churchill’s repeated plagiarism (not just of writing, but also of at least one painting) might not have been uncovered had people not started researching him after his hateful comments. And it may be true that without his essay we may never have learned that Churchill is almost certainly lying about the Cherokee heritage he claimed to qualify for the academic position he took away from a true Native American. Nevertheless, the University went through a painful and public process of hearings which focused only on issues of academic misconduct, finding repeated serious violations, and terminating him after following their process to the letter.
The Churchill case was highly publicized in Colorado because of the active involvement of Dan Caplis and Craig Silverman, two local attorneys who have a popular afternoon radio show in Denver. Mr. Caplis told me, “We did contribute at a key point in the process because we were able to point out some new and important facts about Churchill that exposed him for who he is. We also worked to rally public support to encourage the university to continue the process and not pay him off. But so many people did things along the way to lead to this day.”
That public support was, as admitted by CU’s then-president, former Senator Hank Brown, absolutely critical in keeping the university from caving in.
In April, after a trial for which CU’s attorney, Patrick O’Rourke, was criticized for not “throwing everything at Churchill,” a jury found that Churchill had been fired at least in part because of his political views. However (and this becomes very relevant to yesterday’s events) the jury awarded damages of $1 — and only after asking the judge if it were possible to award nothing (to which the judge replied that they must award at least $1 if they were finding for Churchill on the claim of wrongful termination.)
Naves spends the first 26 pages of the 42 page order — 69 separate sections separated under “Findings of Fact” and “Conclusions of Law” — explaining, with citations of several relevant precedents, why in the proceedings surrounding Churchill’s termination the Regents were acting as judicial officers and that the law provides them immunity because “judicial immunity prevents judges from being subject to intimidation as they perform their functions.”
Based on his conclusion of immunity, the judge ruled that the jury verdict is erroneous, and not simply as a matter of his opinion versus the jury’s. While it is unclear whether the verdict is technically a “JNOV,” a judgment notwithstanding a verdict, its effect is the same: The jury’s decision is reversed. In this case, it is reversed in a way that will be exceptionally difficult to overturn on appeal.
Following the immunity decision, Naves moves on to discussing possible remedies for Ward Churchill in response to Churchill’s motion for reinstatement to his job. The jury’s nominal monetary award plays a critical factor: The judge found that the jury’s awarding of $1 — after asking if they could award nothing — meant that “the jury necessarily determined that Professor Churchill did not incur ‘any actual damages.’”
The judge ruled against reinstatement, the decision about which he points out “rests in the discretion of the trial court” based on prior precedent, saying that:
• In prior reinstatement cases, the jury “found economic or non-economic losses stemming from adverse employment action,” but that was not the case with Churchill.
• The judge “cannot order a remedy that ‘disregard [sic] the jury’s implicit finding’ that Professor Churchill has suffered no actual damages that an award of reinstatement would prospectively remedy.”
• Even if the jury had found actual damage to Churchill, the judge would still not reinstate Churchill because “a productive and amicable working relationship between the parties was not feasible.”
• “(R)einstating Professor Churchill would entangle the judiciary excessively in matters that are more appropriate for academic professionals.”
• “(R)einstatement will create the perception in the broader academic community that the Department of Ethnic Studies tolerates research misconduct,” and therefore,
• “(T)he potential harms require me to deny reinstatement, particularly when it has the potential to harm students and faculty who played no role in the decision to terminate Professor Churchill’s employment.”
Finally, Naves ruled on the issue of “front pay,” the money Churchill would have earned from the time of the jury verdict until reinstatement, or instead of reinstatement. The judge, not surprisingly given his tone for the prior 40 pages of rationale, quickly dispenses with this possibility for Churchill. Not only did the judge rule that “front pay is not appropriate” because of the “absence of actual damages,” but he went further, saying,“Even if there were evidence of actual damages, however, I would determine that front pay is not an appropriate remedy.”
In the 42 pages of his order, Naves does not give Churchill an inch of breathing room. According to Caplis, “One of the brilliant things about the order is that the judge was able to fully document and support the finding of quasi judicial immunity while at the same time ruling what the proper outcome would be if there were not immunity. So in the unlikely event that a higher court finds that there were not immunity, Churchill still probably won’t prevail because of the great discretion that’s given to a trial judge on the issues of reinstatement and front pay.”
Beyond the great news that a violence-promoting fraud will no longer be warping the minds of University of Colorado students, this episode has had an important longer-term positive impact: a much-needed overhaul of the University’s system of tenure for professors.
As Caplis said in a note of triumph, “Churchill’s fraud was so blatant and so contrary to the fundamental credibility of the institution that it forced people across ideological lines to recognize that something needed to be done.”
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