Churchill v. Univ. of Colo. at Boulder, 09CA1713.

Docket NºNo. 09CA1713.
Citation293 P.3d 16
Case DateNovember 24, 2010
CourtCourt of Appeals of Colorado

293 P.3d 16

Ward CHURCHILL, Plaintiff–Appellant,
The UNIVERSITY OF COLORADO AT BOULDER and Regents of the University of Colorado, a body corporate, Defendants–Appellees.

No. 09CA1713.

Colorado Court of Appeals,

Nov. 24, 2010.

[293 P.3d 21]

Killmer, Lane & Newman, LLP, David A. Lane, Denver, Colorado; Thomas K. Carberry, Denver, Colorado; The Noble Law Firm, LLC, Antony M. Noble, Denver, Colorado, for Plaintiff–Appellant.

Patrick T. O'Rourke, Denver, Colorado; Hershey Skinner, LLC, Kari M. Hershey, Denver, Colorado, for Defendants–Appellees.

Mark Silverstein, Denver, Colorado, for Amicus Curiae ACLU Foundation of Colorado.

Aden Fine, Mariko Hirose, New York, New York, for Amicus Curiae ACLU Foundation.

Martha West, Rachel Levinson, Kathi Westcott, Washington, D.C., for Amicus Curiae American Association of University Professors.

Joan Bertin, New York, New York, for Amicus Curiae National Coalition Against Censorship.

Deatsch Law Office, Cheri J. Deatsch, Denver, Colorado; Heidi Elizabeth Boghosian, New York, New York, for Amici Curiae Center for Constitutional Rights, Latina/o Critical Legal Theory, Inc., National Lawyers Guild, and Society of American Law Teachers.

Hall & Evans, L.L.C., Beth A. Dickhaus, Denver, Colorado, for Amicus Curiae Colorado Counties, Inc.

[293 P.3d 22]

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

Opinion by Judge GRAHAM.

We are called upon to resolve questions concerning whether a university and its regents should be immune from a civil suit. Professor Ward Churchill appeals the trial court's judgment (1) directing a verdict in favor of the University of Colorado and its Board of Regents and dismissing his 42 U.S.C. § 1983 claim that the University's investigation of his academic works constituted an adverse employment action; (2) holding as a matter of law that the University was entitled to quasi-judicial immunity, vacating the jury's verdict, and entering judgment in favor of the University on his section 1983 claim that the University violated his First Amendment rights when it dismissed him; and (3) denying his motion for reinstatement, or alternatively, money damages.

We affirm.

I. Factual Background

Churchill was a tenured professor in the University's Department of Ethnic Studies. In early 2005, in anticipation of Churchill's speaking engagement at Hamilton College, that school's student newspaper ran a story about a Churchill essay in which he compared the victims of the 9/11 World Trade Center terrorist attack to Nazi war criminals. Subsequently, there was a great deal of public and media attention surrounding Churchill and his essay.

On February 3, 2005, the University of Colorado Board of Regents held a special meeting to consider Churchill's essay and the resulting publicity. At the meeting, Interim Chancellor Phillip DiStefano announced that his office would “launch and oversee a thorough examination of Professor Churchill's writings, speeches, tape recordings and other works.” In doing so, his office would attempt to answer two primary questions: (1) “[D]oes Professor Churchill's conduct including his speech, provide any grounds for dismissal for cause as described in the Regents' Laws?” and (2) “[I]f so is this conduct or speech protected by the First Amendment against University action?” The Regents unanimously approved a resolution supporting the investigation.

Chancellor DiStefano conducted the initial investigation together with the Dean of the School of Law, David Getches, and the Dean of the College of Arts and Sciences, Todd Gleeson. Their review concluded that five of Churchill's controversial statements, including his 9/11 essay, were protected by the First Amendment. However, in the course of their investigation, numerous allegations surfaced that Churchill had engaged in research misconduct. On March 29, 2005, Chancellor DiStefano issued a report, requesting the nine-member Standing Committee on Research Misconduct (SCRM) to convene and address these allegations.

The SCRM then impaneled an Inquiry Committee to address nine allegations of Churchill's research misconduct. The Inquiry Committee received written submissions from Churchill and interviewed him. On August 19, 2005, the Inquiry Committee issued a report in which it unanimously agreed to forward seven of the nine allegations to an investigative committee.

Based on this recommendation, the SCRM formed an Investigative Committee in January 2006, which by rule included five professors who were not seated on the SCRM and who had established reputations for academic integrity, fairness, and open-mindedness. As part of the selection process, the SCRM inquired into potential biases and conflicts of interests and sought Churchill's input regarding potential members of the committee. Professor Churchill objected to Professor Wesson's serving on the Investigative Committee, suggested Professor Radalet as a member, and approved of Professor Clinton. Two members of the Investigative Committee, including Professor Clinton, were tenured professors from other universities.

The Investigative Committee heard testimony on four occasions between February 2006 and April 2006, at which time it conducted interviews of witnesses and Churchill. On May 9, 2006, it issued its report in which

[293 P.3d 23]

it found by a preponderance of the evidence that Churchill had committed research misconduct in five areas: (1) falsification, (2) fabrication, (3) plagiarism, (4) failure to comply with established standards regarding author names on publications, and (5) serious deviation from accepted practices in reporting research results. Three members of the Committee believed that the research misconduct was so serious that it satisfied the criteria for revocation of tenure and dismissal. Two members felt that Churchill's conduct warranted suspension without pay for two years.

The SCRM then reviewed the Investigative Committee's report and Churchill's written response. On June 13, 2006, it issued its own report in which six voting members recommended Churchill's dismissal. Three voting members recommended suspension without pay—two recommended a five-year suspension and one recommended a two-year suspension.

Citing the reports by the SCRM and its Investigative Committee, on June 26, 2006, DiStefano issued a notice of intent to seek dismissal of Churchill for conduct that falls below minimum standards of professional integrity. Pursuant to the University's dismissal for cause and grievance process set forth in the Laws of the Regents (Laws), Churchill appealed this proposed dismissal, requesting a hearing before the Faculty Senate Committee on Privilege and Tenure (P & T Committee). He alleged that the University engaged in selective enforcement of research misconduct policies in retaliation for his exercise of free speech.

The five-member P & T Committee held a seven-day hearing. A complete record of these proceedings was transcribed and filmed by a court reporter and a videographer. At that hearing, Churchill was represented by counsel, who made an opening statement, presented expert witnesses, cross-examined the University's witnesses, and presented a written closing argument. On May 3, 2007, the P & T Committee issued its report, unanimously concluding that the University had met its burden of proving the existence of “conduct which falls below minimum standards of professional integrity” by clear and convincing evidence. The P & T Committee found by clear and convincing evidence:

• Three instances of evidentiary fabrication by ghostwriting and self-citation.

• Two instances of evidentiary fabrication.

• Two instances of plagiarism.

• One instance of falsification.

The P & T Committee also found that Churchill did not meet his burden of proving by a preponderance of the evidence that he was denied procedural due process in the SCRM investigation or that he was being subjected to selective enforcement of the University's rules concerning research misconduct. Two members of the P & T Committee recommended dismissal. Three members of the P & T Committee recommended that Churchill be suspended without pay for one year and that his rank be reduced to Associate Professor.

University President Hank Brown reviewed the reports of the Investigative Committee, the SCRM, and the P & T Committee. He concurred with the P & T Committee's observation that Churchill engaged in conduct that fell below the minimum standard of professional integrity. He concurred with two members of the P & T Committee that Churchill should be dismissed because Churchill's research misconduct had been severe and deliberate, and the misconduct seriously impacted the University's academic reputation. He then recommended that the Board of Regents dismiss Churchill.

In accordance with Regent Policy 5–I, § IV, Churchill requested a hearing before the Regents. Prior to the hearing, he submitted comprehensive written argument. The Regents conducted a hearing and considered the argument, reports, and recommendations. The Regents dismissed Churchill by a vote of eight to one.

II. Procedural History

Churchill brought several claims against the University, the Board of Regents, and the Regents in their individual and official capacities, alleging, inter alia, that they had

[293 P.3d 24]

violated 42 U.S.C. § 1983 by launching an investigation of his academic works and for terminating him, all in retaliation for his having exercised his right to free speech.

Prior to trial, the parties streamlined the proceedings by stipulating that the University would waive its immunity under the Eleventh Amendment to the United States Constitution, allowing Churchill to maintain direct claims against the University and its Regents. In exchange, Churchill agreed to allow the University and the Regents to assert any defenses that would have been...

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