- The Washington Times - Wednesday, November 24, 2010

DENVER | Former University of Colorado professor Ward Churchill won’t be returning to the classroom anytime soon after losing his appeal Wednesday to get his job back.

The Colorado Court of Appeals upheld a lower-court decision holding that the CU Board of Regents was entitled to “quasi-judicial immunity” when it voted to fire Mr. Churchill in 2007 on grounds of academic misconduct.

“We conclude that the nature of the decision reached by the University and its Regents, and the process by which that decision was reached, shared enough characteristics with the judicial process to warrant absolute immunity from liability,” Judge Dennis Graham wrote in the 64-page opinion.

The ruling also rejected Mr. Churchill’s contention that the university’s two-year investigation into his academic writings and research constituted an “adverse employment action” against him.

Churchill attorney David Lane blasted the opinion, calling it a “rubber stamp” of the lower-court decision. He also said he plans to appeal the case to the Colorado Supreme Court and, if necessary, the U.S. Supreme Court.

“It’s an unfortunate fact of life that our most cherished freedoms are in the hands of politicians and bureaucrats in black robes,” Mr. Lane said.

He added that the appellate court “almost asks for the Supreme Court to take on the case,” citing a paragraph in the opinion acknowledging that the high court has yet to offer a definitive ruling on what constitutes an adverse employment action.

The appellate opinion states, “We perceive no error in the trial court’s ruling because Churchill did not establish that the University’s investigation constituted an adverse employment action. Whether an investigation alone is sufficient to constitute an adverse employment action has not been resolved by the United States Supreme Court, and there does not appear to be a definitive consensus on the matter among federal courts.”

Mr. Churchill drew national scorn in 2005 for his essay comparing victims of the Sept. 11, 2001, terrorist attacks to Nazi war criminal Adolf Eichmann. At the time, Mr. Churchill was a tenured professor of ethnic studies and the department chairman.

A university investigation concluded that the essay was protected by the First Amendment but also charged him with plagiarism, falsifying data and fabricating evidence in some of his other writings and research.

The board dismissed Mr. Churchill by an 8-1 vote after a series of faculty investigations found him guilty of academic misconduct. Mr. Churchill filed a lawsuit against the university saying he was fired in retaliation for the essay and that the investigations were nothing more than a witch hunt designed to provide cover.

A Denver jury decided in Mr. Churchill’s favor in April 2009 but awarded him just $1 in symbolic damages. Trial Judge Larry J. Naves later vacated his jury’s ruling, finding that the board had quasi-judicial immunity from lawsuits, and denied Mr. Churchill’s request for reinstatement.

Board of Regents spokesman Ken McConnellogue said the university was “pleased with the result, and it confirms what we’ve contended all along.”

As for Mr. Lane’s intention to bring the case to the state Supreme Court, “we really expected he would do that,” Mr. McConnellogue said.

“We’ll cross that bridge if the court agrees to hear it,” he said. “I really feel this ruling and the lower court ruling bodes well for the university.”

Since his dismissal, the 63-year-old Mr. Churchill has stayed busy writing, traveling and making speeches, often to university audiences. A number of free-speech and university groups, including the American Civil Liberties Union and American Association of University Professors, have supported his legal challenges.

• Valerie Richardson can be reached at vrichardson@washingtontimes.com.

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