The End of Free Speech at University of Colorado?

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With its ruling in the Ward Churchill case, a court has effectively given the university's board of regents the power to fire whomever they want, whenever they want, for unpopular political speech.

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Churchill speaks at a free speech rally in Washington in 2005. (Reuters)

Last week, just in time for September 11, the Colorado Supreme Court turned down an appeal in a free speech case brought by former tenured University of Colorado professor Ward Churchill, who was seeking reinstatement to his job. Churchill was fired in 2006, following a national uproar over his remarks comparing 9/11 World Trade Center victims to Adolf Eichmann: They were "little Eichmanns," he wrote, complicit in an Iraqi "Holocaust" occasioned by the first Gulf War. Barred by the First Amendment from firing Churchill for his offensive remarks, state university officials initiated an investigation of his scholarship, found him guilty of plagiarism, "falsification," and "evidentiary fabrication," and fired him, ostensibly for misconduct.

Churchill sued and won a jury verdict confirming that his firing was, in fact, retaliation for his "protected speech," the university having failed to demonstrate that he "would have been dismissed for other reasons." In other words, had he not published his offensive remarks about 9/11 victims, he would not have been fired. The jury awarded $1 in nominal damages; Churchill's primary, equitable request for reinstatement was a matter for the trial judge, who declined to grant it. That decision, denying reinstatement despite the wrongful firing, has now been upheld by Colorado's highest court.

Free speech advocates are rightly dismayed by this ruling, which advances an awful trend. Academic freedom is declining. The belief that that free speech rights don't include the right to speak offensively is now firmly entrenched on campuses and enforced by repressive speech or harassment codes. Campus censors don't generally riot in response to presumptively offensive speech, but they do steal newspapers containing articles they don't like, vandalize displays they find offensive, and disrupt speeches they'd rather not hear. They insist that hate speech isn't free speech and that people who indulge in it should be punished. No one should be surprised when a professor at an elite university calls for the arrest of "Sam Bacile" while simultaneously claiming to value the First Amendment.

Still, the ruling in Ward Churchill's case was a bit of a shock. Judges have been more sympathetic to free speech rights than many college and university administrators, and the jury's finding that he had been fired because of his speech gave Churchill quite a strong case. But he is, of course, a most unsympathetic plaintiff, having crudely assailed the nation's most sympathetic victims, and the Colorado courts allowed disregard for his speech to trump regard for his rights.

How did a public university get away with firing a tenured professor in retaliation for political speech? It's complicated: Churchill sued under a federal civil rights statute (section 1983), providing remedies for people whose civil rights are violated "under color" of law. But public officials generally enjoy "qualified immunity" from liability for actions that were not clear violations of law; judges (as well as legislators) enjoy absolute immunity for official actions (legislating or adjudicating).

So, to finesse Churchill's claim for relief, the trial court ruled that the Colorado Board of Regents, which had voted to fire him, was a "quasi-judicial body," entitled to absolute immunity from damages or a claim for equitable relief, such as reinstatement. In addition, the Court ruled that even if reinstatement were permissible, it would be inappropriate in this case because of the enmity between Churchill and the university and because, given his alleged misconduct, reinstatement would undermine university's commitment to academic integrity.

A university that fires a professor for his controversial speech, all the while pretending it's firing him for misconduct, is, however, in no position to make self-righteous claims about academic integrity. Indeed, Churchill's reinstatement could have been lesson in integrity for administrators as well as students. Besides, the misconduct charge (which was challenged by the Colorado Conference of the American Association of University Professors) was essentially irrelevant, given the jury's finding that Churchill was fired for offensive speech.

The enmity between Churchill and administrators was equally irrelevant, and invoking it to deny his claim for reinstatement was particularly perverse. University officials created the acrimonious dispute with Churchill by violating his constitutional rights. The court effectively ruled that an employee angered by being wrongfully fired waives his right to be re-hired, suggesting that an illegal act may be justified by the consequences of its own illegality.

Finally, by labeling the Board of Regents a quasi-judicial body and endowing it with absolute immunity for civil rights violations, the court eviscerated guarantees of academic freedom. University professors are supposed to enjoy the right "to engage in lawful speech without fear of retaliation," an amicus brief by the Colorado ACLU, the National Coalition Against Censorship, and the American Association of University Professors points out. The court "rendered (these rights) illusory for over 8,000 professors in the University of Colorado system."

Faculty speech rights are illusory at the University of Colorado because they now exist in name only. Exercising its absolute immunity for violating First Amendment rights, the Board of Regents may fire people with impunity for engaging in unpopular political speech. Absolute immunity is absolute power, and the Colorado university system may soon be corrupted absolutely.

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Wendy Kaminer is an author, lawyer, and civil libertarian. She is the author of I'm Dysfunctional, You're Dysfunctional.

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