CU files brief in Wart case

Indian Country Today, today:

The University of Colorado is asking the state appeals court to uphold a lower court’s refusal to reinstate former Prof. Ward Churchill, who headed CU’s ethnic studies department until controversy over an essay he wrote led to an investigation into his scholarship and to his ultimate dismissal. . . .

In a 67-page brief filed May 7, CU said that when controversy initially arose about the 9/11 essay, the Board of Regents met, not “trying to find a cause for dismissal,” but to determine whether Churchill’s speech constituted grounds for dismissal and, if so, whether it was protected by the First Amendment. Regents concluded the essay was constitutionally protected political expression “in spite of the damage it may have caused.”

“Had unrelated allegations of research misconduct not arisen against Professor Churchill during (Interim) Chancellor (Philip) DiStefano’s investigation, the matter would have been closed,” the brief states, but since they arose at the same time, DiStefano believed the research allegations should be addressed just as “sanctionable criminal activity” would be examined under the same circumstances.

Noot groofs:

Despite Churchill’s assertion that the investigation of his work was an adverse action, an employer may “undertake an investigation, even when that investigation stems from an employee’s otherwise protected speech” in order to balance the employee’s interests “against the realities of the workplace,” it states.

“One of those (employment) realities is that a public employee’s speech (including political speech) can disrupt the workplace, and, when disruption occurs, the employer may terminate the employee,” the brief states.

Citing various legal precedents, CU argued that Regents, acting as judicial officers, would be entitled to quasi-judicial immunity even if the action taken was “in error, was done maliciously, or was in excess of (their) authority,” since the designation applies to the nature of the decision, not the officials’ conduct in a particular case.

“Obvious facts” can narrow a quasi-judicial action’s discretion, but the Regents terminated Churchill’s employment after fellow faculty members found that he “intentionally engaged in multiple acts below minimum standards of professional integrity” and that his conduct required a “severe sanction,” the brief states.

Churchill’s attempts at reinstatement “had only a miniscule chance of success especially given (his) statements ‘demonstrating his hostility to the university’” and his filing of retaliatory complaints against investigating committee members, according to the current brief.

And let's not forget David Lane's various comments. We appear to have come full circle. At least the issues are fairly clear.