Judge upholds ouster of professor in 'little Eichmann' scandal
Ethnic studies professor Ward Churchill had won a lawsuit but only $1
from a jury that said the University of Colorado retaliated against
him for exercising free speech.
By DeeDee Correll
July 8, 2009
Reporting from Boulder, Colo. -- The University of Colorado professor
who was fired after likening victims of the Sept. 11 terrorist
attacks to a Nazi leader cannot return to the classroom, a state
judge decided Tuesday.
Ethnic studies professor Ward L. Churchill had won a lawsuit in April
alleging that the university had retaliated against him for
exercising his free-speech rights -- not for the academic misconduct
of which he was subsequently accused.
Yet the jury also awarded him only $1 in damages. Chief Denver Judge
Larry Naves cited that in ruling that Churchill would not return to
his $96,392-per-year job nor be entitled to a financial settlement:
"I am bound by the jury's implicit finding that Professor Churchill
has suffered no actual damages as a result of the constitutional violation."
Naves also agreed that Churchill's return would weaken the school's
ability to hold students and faculty accountable for misconduct.
Churchill criticized the decision. "What he's saying, in essence, is
they were not prepared to treat me as any other faculty member would
be treated, which was all I ever required."
He said he would appeal. "I will continue to deal with it until the
day I drop," he said.
The university fired Churchill in 2007 -- two years after a firestorm
over an essay he penned soon after the Sept. 11, 2001, terrorist
attacks, which killed nearly 3,000 people.
The essay, "Some People Push Back: On the Justice of Roosting
Chickens," blamed the attacks on U.S. foreign policy and called World
Trade Center victims "little Eichmanns" -- a reference to Nazi Adolf Eichmann.
The essay didn't become widely known until 2005, when a newspaper at
Hamilton College in upstate New York wrote about it before Churchill
was scheduled to speak there. Fury ensued, and then-Colorado Gov.
Bill Owens, among others, called for Churchill's ouster.
University officials concluded that free-speech protections precluded
firing him for the essay. But complaints about his academic work also
surfaced. After three committees concluded that he had committed
plagiarism, fabrication and research misconduct in writings on
American Indian history, he was fired.
Churchill said Tuesday that he had never sought money -- only to
return to the campus where he had worked for 30 years. Millions
couldn't compensate him for the damage the university had wrought, he said.
His attorney, David Lane, said jurors awarded Churchill the sum of $1
because they expected him to get his job back.
"America has to be scratching its head, saying, 'Do we actually have
a 1st Amendment in this country?' " he said.
But University of Colorado Chancellor Phil DiStefano hailed the
ruling as a "victory for faculty governance."
"I don't think this was ever about free speech," DiStefano said.
"This whole case was about academic integrity."
None of the faculty members with whom he has spoken supported
Churchill's return, DiStefano said. But at a hearing last week, the
chairwoman of the ethnic studies department, Emma Perez, testified
that she was eager for Churchill to come back. She could not be
reached for comment Tuesday.
Churchill said he did not regret the essay, maintaining: "What I said
needed to be said."
Some people have told him there are consequences to free speech. They
don't understand the concept, he said: "If there are consequences,
it's not free."
Churchill won't be reinstated
A judge vacates a jury's finding favoring the ex-CU prof and awards
him no damages.
By Tom McGhee
The Denver Post
The University of Colorado doesn't owe former professor Ward
Churchill his old job even though a jury found regents improperly
terminated him, a judge ruled Tuesday.
Denver District Judge Larry Naves vacated the jury's finding, ruling
that CU's Board of Regents is a "quasi-judicial" panel that cannot be sued.
"This ruling recognizes that the regents have to make important and
difficult decisions. The threat of litigation should not be used to
influence those decisions," CU president Bruce Benson said in a release.
David Lane, Churchill's lawyer, vowed to appeal the decision and
called Naves an "activist judge" who had wasted a jury's time and
"He is ignoring the law and disrespecting the jury system," he said
at a news conference after the decision's release Tuesday.
State law leaves it to the trial judge to decide on reinstatement and
monetary damages, called "front money."
Lane expects the appeal to be difficult. "We have an uphill battle.
They will always prefer to uphold the trial judge."
Churchill has 45 days to file an appeal with the Colorado Court of Appeals.
CU began investigating Churchill after an essay surfaced in which he
had called some victims of the 2001 terrorist attacks "little Eichmanns."
The statement triggered outrage and led to calls for his dismissal.
Subsequently, the university launched an investigation of his
scholarly writing and found that he engaged in repeated acts of
plagiarism over a period of years.
CU said he was fired, in 2007, for academic misconduct. Churchill and
his supporters said that the university manufactured a case against
him to appease his critics, among whom was then-Gov. Bill Owens.
"This shows that if you step out of line and do something considered
unpalatable by people with power, you are in danger of losing your
job," said retired CU faculty member Tom Mayer.
Churchill sued, arguing that he was penalized for exercising his
right to free speech.
The judge made a ruling Tuesday based on politics, Lane said. "This
case has been nothing but political from the moment it broke."
Had Churchill been reinstated, his presence on the campus would have
signaled that the university accepts academic misconduct, said
CU-Boulder chancellor Philip DiStefano. Other universities would have
used his reinstatement to entice job-seeking teachers to their
institutions at CU's expense, he added.
"Other institutions would use his reinstatement to say, 'Do you
really want to be in a place that allows research misconduct?' "
Churchill did not appear at the news conference in Lane's office. But
in an e-mail response to a reporter's questions, he called Naves'
ruling a "travesty."
"At the very least, the whole charade added up not only to a colossal
waste of the jury's time/energy, but of taxpayer dollars," he wrote.
"And, in the latter regard, the tally will continue to mount because
Naves' ruling is a point-by-point travesty, wide open to appeal on a
number of counts."
The ruling surprised one legal expert, who said jurors made their
feelings about Churchill clear by awarding him only $1 but left no
doubt he was wrongfully dismissed. "The jury said, 'Look, we didn't
like Churchill, but we liked what you did less,' " said trial lawyer
DiStefano said the university has yet to determine how much it spent
defending the suit.
Lane said that had the judge ruled in his client's favor, he would
have asked for about $1.2 million in legal fees.
Lawyers like Lane, who take civil-rights cases, have their fees paid
by the defendant in this case CU and only if they win the case.
Unless Lane wins Churchill's appeal the lawyer will receive "not one
nickel," Lane said.
In his 42-page decision, Naves also refused to order CU to provide
front pay, saying there were no actual damages that the money would
remedy. And he said Churchill didn't seek to mitigate his losses by
getting another job.
"Professor Churchill's own statements during the trial established
that he has not seriously pursued any efforts to gain comparable
employment but has, instead, chosen to give lectures and other
presentations as a means of supplementing his income. Reportedly, he
even 'received a few job offers' that he declined to pursue," Naves
said. "Under these circumstances, I do not believe an award of front
pay is appropriate."
Tom McGhee: 303-954-1671 or email@example.com
Judge: No job, no money for Ward Churchill
Ruling says CU's regents immune from former prof's lawsuit
By John Aguilar
Tuesday, July 7, 2009
In a resounding defeat for ousted University of Colorado professor
Ward Churchill, a judge ruled Tuesday not only against his request
for reinstatement at CU but that he deserves no financial
compensation for having been fired from the school nearly two years ago.
The ruling from Chief Denver District Judge Larry Naves was in
seemingly stunning contrast to a jury's verdict from the civil trial
Churchill brought against the school earlier this year.
At the conclusion of the 3½-week-long trial in April, six jurors
decided that CU had unlawfully stripped Churchill of his job for
expressing his political beliefs in a controversial essay about the
Sept. 11 terrorist attacks, in which he compared victims in the World
Trade Center to a Nazi architect of the Holocaust.
Naves threw out the jury's determination that the school unlawfully
retaliated against Churchill for expressing his First Amendment
rights "as a matter of law," stating in his 42-page ruling that the
CU regents have absolute immunity from lawsuits in their roles as
"administrative officials performing functions analogous to those of
judges and prosecutors."
The judge ruled that the regents acted in that protected capacity
when they decided to dismiss the tenured ethnic studies professor in
an 8-1 vote in July 2007 on charges of committing widespread academic
fraud in his scholarship.
"In this case, it is clear that the Board of Regents performed a
quasi-judicial function and acted in a quasi-judicial capacity when
it heard Professor Churchill's case and terminated his employment,"
The judge cited a different part of the jury verdict specifically
the decision to award Churchill a nominal $1 in damages as an
important factor in denying Churchill's reinstatement request.
"If I am required to enter an order that is 'consistent with the
jury's findings,' I cannot order a remedy that 'disregards the jury's
implicit finding' that Professor Churchill has suffered no actual
damages that an award of reinstatement would prospectively remedy,"
The judge also wrote that an award of "front pay" to Churchill is
uncalled for because the former professor had not "seriously pursued"
any efforts to gain comparable employment since his dismissal and had
even declined to pursue a couple of job offers.
The university's lead attorney, Patrick O'Rourke, said the judge's
ruling was "factually and legally strong."
CU President Bruce D. Benson, in a statement released shortly after
the ruling, said the judge "appropriately applied the law to
recognize the Board of Regents' role as a quasi-judicial body."
"This ruling recognizes that the regents have to make important and
difficult decisions," Benson said. "The threat of litigation should
not be used to influence those decisions."
Churchill attorney slams judge
Churchill's attorney, David Lane, lambasted Naves for vacating the
jury's verdict and handing a victory to CU.
"It's an extremely rare thing for a judge to throw out a jury verdict
that's big, that doesn't happen," he said. "Here it's being done at
the expense of the Constitution of the United States of America, and
it's really a tragedy. It sends the message to the public of, 'Oh,
jury verdicts. Who cares?'"
He said Churchill, who declined to comment Tuesday, was initially
surprised at the ruling, expecting to either be awarded his job back
or given a lump sum of money instead.
"Neither one of us was talking about, 'Oh, by the way, the judge
threw out your verdict and gave the win to CU,'" Lane said.
He said the ruling will give the regents "carte blanche" to fire
whomever they want and then simply hide behind quasi-judicial immunity.
Lane characterized the judge's ruling, which he said was riddled with
"a million incorrect statements," as a regurgitation of every legal
argument CU had made during the years-long saga.
He accused Naves of unfairly siding with the school throughout the
trial and giving CU "every break imaginable." Naves blocked witnesses
called by Churchill from testifying, Lane claimed.
"(Churchill's dismissal) was a political decision, and quasi-judicial
immunity should never have been granted," Lane said.
He said he plans to appeal the ruling. Getting a reversal will be an
"uphill battle," he said, but his client is ready for it.
"Ward Churchill is a tough guy, and he's used to adversity," Lane said.
Academic misconduct still center stage
Tuesday's ruling ends another chapter in the 4½-year saga that
generated headlines across the nation and set talk radio abuzz.
It began with the controversial essay Churchill wrote in the wake of
9/11, in which he lambasted American foreign and economic policy and
referred to some victims that day as "little Eichmanns."
When the essay was uncovered by a student at Hamilton College in New
York and widely publicized in January 2005, it caused a firestorm.
Then-Colorado Gov. Bill Owens called for Churchill's ouster, as did
other influential conservative politicians and commentators.
After a six-week investigation, CU determined that Churchill's 9/11
essay was protected speech. But the school launched a new probe into
the professor's books and scholarship after receiving allegations
that the ethnic studies professor had plagiarized, fabricated and
falsified some of his work.
Several faculty committees, involved in a two-year investigation into
Churchill's scholarship, found him guilty of research misconduct.
Churchill sued the school the day after he was dismissed, claiming CU
sacked him for his essay and used bogus findings of academic
misconduct as a legal front for getting rid of him.
Naves wrote in his ruling that the determination as to whether
Churchill committed academic fraud best rests with the university,
not the courts. He wrote that it wasn't at all clear from the jury's
April 2 verdict whether it felt he had or hadn't broken CU's academic rules.
Naves ruled that putting Churchill back on campus would not be
appropriate because his presence there would make it harder for CU to
impose standards of scholarly excellence for fear of being sued in the future.
He also wrote that the relationship between the plaintiff and the
school is "irreparably damaged."
Naves cited Churchill's own negative statements about CU as proof
that his reinstatement there would likely lead to friction on campus.
At a news conference Tuesday, Boulder campus Chancellor Phil
DiStefano said Churchill's support was limited at CU.
"I believe the majority of faculty on this campus did not favor
reinstatement, given the academic misconduct," DiStefano said.
He said Naves' ruling reinforces the faculty's role on CU's campus
and at schools across the country to make sure professors meet the
highest standards of academic integrity.
"The judge's decision, in my mind, is a victory for faculty
governance," DiStefano said.
Mixed reaction on campus
Reaction from CU students Tuesday was mixed.
Nate Monson, 21, said he was pleased when he heard that Churchill
wasn't being reinstated.
"My friend's uncle died in 9/11," Monson said. "So I'm glad
(Churchill is) not coming back."
Another CU student, Michael Schwerin, 20, said the ruling does CU and
the community "a huge disservice" because Churchill challenged his
"He deserves to be reinstated," Schwerin said. "Period."
CU Regent Steve Bosley, R-Longmont, said the judge's ruling
reinforces the authority given to the regents, through the state
constitution, to govern the university.
"It validates the decision that the regents made two years ago when
we voted to fire him," Bosley said.
CU sociology professor Tom Mayer, who has supported Churchill's
reinstatement, said the judge's decision will have a "chilling effect."
"If the decision in Ward Churchill's case stands, it would be a
terrible blow to academic freedom," he said.