Churchill v. Univ. of Colo. at Boulder

• Decision Date: 10 September 2012
• Docket Number: No. 11SC25.,11SC25.
• Citation: 2012 CO 54,284 Ed. Law Rep. 540,285 P.3d 986,34 IER Cases 647
• Parties: Ward CHURCHILL, Petitioner v. The UNIVERSITY OF COLORADO AT BOULDER and Regents of the University of Colorado, a Colorado body corporate, Respondents.
• Court: Colorado Supreme Court

285 P.3d 986

284 Ed. Law Rep. 540

34 IER Cases 647

2012 CO 54

Ward CHURCHILL, Petitioner

v.The UNIVERSITY OF COLORADO AT BOULDER and Regents of the University of Colorado, a Colorado body corporate, Respondents.

No. 11SC25.

Supreme Court of Colorado, En Banc.

Sept. 10, 2012.

Killmer, Lane & Newman, LLP, David A. Lane, Lauren L. Fontana, Denver, Colorado, Lawlis & Bruce, LLC, Robert J. Bruce, Denver, Colorado, Thomas K. Carberry, Denver, Colorado, The Noble Law Firm, LLC, Antony M. Noble, Lakewood, Colorado, Attorneys for Petitioner.

Office of University Counsel, Patrick T. O'Rourke, Denver, Colorado, Hershey Skinner, LLC, Kari M. Hershey, Denver, Colorado, Attorneys for Respondents.

Brownstein Hyatt Farber Schreck, LLP, Bill C. Berger, Denver, Colorado, Attorneys for Amici Curiae Mountain States Employers Council, Colorado, Association of Commerce & Industry, South Metro Denver Chamber of Commerce, Denver Metro Chamber of Commerce, and Colorado Competitive Council.

John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Douglas J. Cox, Senior Assistant Attorney General, Denver, Colorado, Attorneys for Amicus Curiae State of Colorado.

McKenna Long & Aldridge LLP, Lino S. Lipinsky de Orlov, David R. Fine, Mason J. Smith, Denver, Colorado, McKenna Long & Aldridge LLP, C. Randall Nuckolls, Washington, DC, American Council on Education, Ada Meloy, Washington, DC, Attorneys for Amici Curiae American Council on Education, National Association of Independent Colleges and Universities, American Association of State Colleges and Universities, and Association of American Universities.

Deatsch Law Office, Cheri J. Deatsch, Denver, Colorado, National Lawyers Guild, Heidi Elizabeth Boghosian, New York, New York, Attorneys for Amici Curiae National Lawyers Guild, Center for Constitutional Rights, Colorado, Conference of the American Association of University Professors, Latina/o Critical Legal Theory, National Conference of Black Lawyers, Society of American Law Teachers, and Law Professors and Attorneys.

Alan K. Chen, Denver, Colorado, ACLU Foundation, Mark Silverstein, Denver, Colorado, Attorneys for Amici Curiae American Civil Liberties Union and ACLU of Colorado.

Chief Justice BENDER delivered the Opinion of the Court.

¶ 1 In this appeal, we review the court of appeals' opinion in Churchill v. Univ. of Colo. at Boulder, ––– P.3d ––––, 2010 WL 5099682 (Colo.App.2010). The underlying civil action involves claims brought by Professor Ward Churchill pursuant to 42 U.S.C. § 1983 (2011) after his tenured employment was terminated by the Board of Regents of the University of Colorado. Churchill alleges that the Regents violated his constitutionally protected free speech rights by initiating an investigation into his academic integrity and by terminating his tenured employment in retaliation for his publication of a controversial essay. Churchill sought both compensatory and equitable relief. The court of appeals affirmed the trial court's dismissal of Churchill's termination claim on grounds that the Regents' quasi-judicial actions were entitled to absolute immunity. It also affirmed the trial court's dismissal of Churchill's claim for equitable remedies because it concluded that such remedies are not available in a Section 1983 action against quasi-judicial officials. Lastly, based on its determination that allegedly retaliatory employment investigations are not actionable under Section 1983, the court of appeals affirmed the trial court's directed verdict in favor of the University on Churchill's bad faith investigation claim.

¶ 2 We affirm, albeit on slightly different grounds. First, we hold that the Regents' decision to terminate Churchill's employment was a quasi-judicial action functionally comparable to a judicial process. Hence, the Regents are entitled to absolute immunity concerning their decision to terminate Churchill. Second, we hold that the trial court did not abuse its discretion when it ruled that Churchill was not entitled to the equitable remedies of reinstatement and front pay. Third, 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. We remand this case to the court of appeals to be returned to the trial court for further proceedings consistent with this opinion.

I. Facts and Proceedings BelowEarly Events

¶ 3 Churchill was a tenured professor at the University of Colorado at Boulder whose employment could be terminated only for cause. He was also the chair of the University's Ethnic Studies Department. In late January 2005, public furor erupted over an essay that he wrote in the immediate aftermath of the September 11, 2001 terrorist attacks on the World Trade Center in New York City. Among other provocative claims, the essay likened the civilians killed in the World Trade Center to Adolf Eichmann, a Nazi officer and convicted war criminal for his role as the primary planner of the Holocaust. In preparation for a speaking engagement by Churchill at Hamilton College in January 2005, the college's newspaper discovered his essay and publicized its controversialcontent. Some students organized to protest Churchill's visit. The story and Churchill's essay were subsequently picked up by national media outlets and quickly mushroomed into a national controversy.

¶ 4 In response to the public outcry condemning Churchill's essay, the Regents¹ held a special meeting on February 3, 2005. Before and after the meeting, several of the Regents and Chancellor Phil DiStefano made statements to various media outlets suggesting that they hoped that Churchill would be dismissed as a result of his essay. At the conclusion of the meeting, the Regents unanimously voted to authorize DiStefano to create an ad hoc panel to investigate Churchill's academic works.

¶ 5 After approximately two months, the ad hoc panel reported to DiStefano that the content of Churchill's essay, which it found did not engender imminent violence or unduly interfere with university operations, constituted protected free speech and therefore could not serve as the grounds for a for-cause dismissal of a tenured employee. During this preliminary inquiry, however, the ad hoc panel received several complaints that Churchill had engaged in repeated instances of academic misconduct in his published scholarly writings. In response to those complaints, DiStefano announced that the University would formally investigate Churchill for nine alleged instances of academic misconduct.

Investigation

¶ 6 DiStefano filed a formal complaint, and the University initiated a formal investigation into the academic integrity of Churchill's scholarship. During the pendency of the investigation, Churchill received his same benefits and pay, retained his tenured status, and was allowed to teach classes and speak openly to the public.

¶ 7 As a result of DiStefano's complaint, the matter was first taken up by the University's Standing Committee on Research Misconduct, a permanent nine-member committee made up of tenured faculty members and charged with policing the academic integrity of the University's faculty. The standing committee then impaneled an inquiry committee to conduct a preliminary review to determine whether the nine allegations had potential merit.

¶ 8 The inquiry committee reviewed Churchill's academic record, interviewed Churchill, and accepted written submissions from Churchill responding to the allegations of academic misconduct. On August 19, 2005, the inquiry committee unanimously ruled that seven of the nine allegations of academic misconduct had merit and should be further investigated.

¶ 9 In response to the inquiry committee's recommendation, the standing committee formed a special investigative committee in January 2006. The investigative committee comprised three tenured faculty members from the University who were not on the standing committee and two tenured faculty members from other universities. The standing committee consulted with Churchill to choose the members of the investigative committee and considered whether any of the potential members had any biases or conflicts of interest. For six months, the investigative committee interviewed witnesses and reviewed hundreds of pages of documents submittedby Churchill in his defense. The investigative committee unanimously agreed that Churchill engaged in academic misconduct and submitted a 102–page report to the standing committee. Two members recommended that Churchill be suspended for two years, two members recommended that he be suspended for five years, and one member recommended that his tenure be revoked and his employment be terminated.

¶ 10 The standing committee reviewed the investigative committee's report, as well as Churchill's written response to the report. On June 13, 2006, the standing committee issued its own report and recommended sanctions. Six members recommended that Churchill's employment be terminated, two members recommended that he be suspended for five years, and one member recommended that he be suspended for two years. All agreed that Churchill had committed “serious, repeated, and deliberate research misconduct.”

Termination

¶ 11 After receiving the reports from the investigative committee and the standing committee, DiStefano issued a notice of intent to seek Churchill's dismissal. DiStefano alleged that Churchill's “pattern of serious, repeated and deliberate research misconduct falls below minimum standards of professional integrity expected of University faculty and warrants [his] dismissal from the University of Colorado.” ² Churchill requested a formal hearing on the University's intent to terminate his employment, pursuant to section III.A.1 of Regent Policy 5–I. The Faculty Senate Committee on Privilege and Tenure granted Churchill's request and set a...