July 07, 2009

Breaking--Ward Churchill Denied Reinstatement

**Update 6--Ross Kaminsky provides an excellent detailed breakdown of Judge Larry Naves' decision in the Churchill lawsuit; more reactions on Churchill's failed lawsuit at Drunkablog, including a roundup of links; comprehensive followups at PirateBallerina (Part 1, 2, 3, 4, 5), including CU billing Churchill for legal expenses; ACTA's take on the decision

**Update 5--CU Boulder Chancellor Phil DiStefano and CU attorney Pat O'Rourke:



**Update 4--The fat lady isn't singing--Churchill's attorney, David Lane, is planning to file an appeal:
When asked if there would be an appeal, Churchill's attorney David Lane said in an afternoon press conference, "Absolutely."

"It sends a message to the public, which is: 'Oh jury verdicts, who cares?' You know?" Lane said. "I've said, you know the Constitution is only as strong as those charged with protecting it, and unfortunately it's not being protected."

The next step is the Colorado Court of Appeals, and Churchill and Lane have 45 days to file the appeal.

CU attorney Patrick O'Rourke believes CU will win the appeal.

"[The ruling is] factually strong and it's legally strong. I think that this case could get resolved at the Court of Appeals level and the higher courts could say, 'We have no reason to review it further,'" O'Rourke said.
Churchill himself had nothing to say:
Churchill did not have any comment on Tuesday.

School administrators say the ruling gives them vindication.

"This is an issue about research misconduct. I said back in 2005 and again in 2006 that Professor Churchill's speech is protected. However, there were numerous allegations of research misconduct that needed to be investigated," CU Chancellor Phil DiStefano said.

"This is a huge win for the University of Colorado because the jury found against the university and the judge throwing the verdict out now can only be considered a major judicial upset," 9NEWS Legal Analyst Scott Robinson said.

But all sides agree that the case's journey through the courts is not over.

"This case will 100 percent be appealed and it's anyone's guess how it will be resolved in appeal," Robinson said. "This is a groundbreaking decision in an area of law that has not been visited very often in the past."
**Update 3--CU and Board of Regents granted immunity:
On Tuesday Chief Denver District Court Judge Larry Naves denied Churchill's motion for reinstatement of employment as well as any "front" pay. It was part of a decision where Naves granted CU and the Board of Regents immunity from being sued, which vacates the jury verdict from April of this year.
. . .
Naves ruled "because quasi-judicial immunity was a 'defense that would have been applicable to any of its officials or employees' it is a defense available to the University and the Board of Regents. 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."

"Based on the foregoing, it is hereby ORDERED that Defendants are GRANTED quasi-judicial immunity as a matter of law from Professor Churchill's second claim for relief. As a result, the jury's verdict in this matter is hereby VACATED, and judgment is hereby entered in favor of Defendants on Professor Churchill's Second Claim for Relief."

Naves went on write: "If I granted reinstatement I believe there is a substantial likelihood that there would be future disputes about the propriety of Professor Churchill’s academic conduct... Under these circumstances and recognizing that the University’s faculty must have the ability to define the standards of scholarship, I am persuaded that reinstatement is not an appropriate remedy in this case... The same 'sharply conflicting evidence' about Professor Churchill’s job performance and the fundamental disagreements between the parties lead me to conclude that 'an absence of mutual trust' makes reinstatement unfeasible."
**Update 2--CU President Bruce Benson:
"We believe 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. The threat of litigation should not be used to influence those decisions."
From the ruling:
In a 42-page decision issued today, Naves agreed with the university that Churchill's presence on the Boulder campus would suggest that the university tolerated academic misconduct.

"The evidence was credible that Professor Churchill will not only be the most visible member of the Department of Ethnic Studies if reinstated, but that reinstatement will create the perception in the broader academic community that the Department of Ethnic Studies tolerates research misconduct," Naves wrote.

"In addition, this negative perception has great potential to hinder students graduating from the Department of Ethnic Studies in their efforts to obtain placement in graduate programs," he wrote.
**Update--full text of Judge Naves' ruling (pdf), and a mini-recap of the arguments presented after Churchill's April "victory," in which he was awarded damages of $1:
In April, a Denver jury agreed with Churchill's premise that he was illegally fired, but it stopped far short of awarding Churchill a high dollar figure. Instead it awarded Churchill $1.

Last week, Lane and Churchill were back in Judge Naves' courtroom arguing that their legal victory in April was enough for the judge to order reinstatement. Calling CU leaders, "constitutional law violators," Lane told Naves he had essentially no other choice but to reinstate the embattled professor.

CU's lead attorney Patrick O'Rourke argued that the $1 judgement in April should, in essence, speak for itself. O'Rourke suggested that reinstating Churchill would further damage the university's reputation.
--extensive SP Churchill archives

--more at PirateBallerina

Perhaps the final chapter in the Ward Churchill saga:
The University of Colorado doesn't have to give fired ethnic studies Prof. Ward Churchill his job back, a Denver District Court judge ruled today.

"I conclude that reinstating Professor Churchill would entangle the judiciary excessively in matters that are more appropriate for academic professionals. In making this decision, I give considerable weight to the United States Supreme Court's recognition that 'considerations of profound importance counsel restrained judicial review of the substance of academic decisions,' " Denver District Court Judge Larry J. Naves, said in his 42-page decision.

Naves went on to say that trial courts may deny reinstatement when, as " practical matter, a productive and amicable working relationship would be impossible" or "the employer-employee relationship has been irreparably damaged by animosity caused by the lawsuit."

A jury in April found that the university illegally fired Churchill after he was accused of research misconduct.
More from Channel 7:
Boulder learning will go on without Ward Churchill.

On Tuesday Judge Larry Naves granted CU's and the Board of Regent's motion for judgement as a matter of law that the Board of Regents is immune from being sued and vacates the jury verdict from April of this year.

Naves also denied Churchill's motion for reinstatement of employment as well as any "front" pay.

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