[News] Ward Churchill Won’t Get Job Back, Appeals Court Rules

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Wed Nov 24 14:30:41 EST 2010



<http://www.lawweekonline.com/2010/11/ward-churchill-wont-get-job-back-appeals-court-rules/>Ward 
Churchill Won’t Get Job Back, Appeals Court Rules




Posted on 24 November 2010

http://www.lawweekonline.com/2010/11/ward-churchill-wont-get-job-back-appeals-court-rules/
LAW WEEK COLORADO

DENVER ­ A three-judge panel of the Colorado 
Court of Appeals on Wednesday affirmed a trial 
court decision denying reinstatement of Ward 
Churchill as professor at the University of 
Colorado. The decision could next be appealed to the state Supreme Court.

Churchill filed a lawsuit against the CU regents 
alleging his 2007 firing violated his First 
Amendment rights because it was done in 
retaliation to his remarks about 9/11. CU 
countered that Churchill was fired over plagiarism.

A jury last year returned a verdict in favor of 
Churchill, who then made a post-trial motion for 
reinstatement. But now-retired Denver District 
Chief Judge Larry Naves tossed the verdict, 
siding with CU’s post-trial motion that the 
regents enjoyed quasi-judicial immunity for their actions.

The Court of Appeals affirmed Naves’ ruling that 
regents have quasi-judicial immunity, and also 
affirmed his directed verdict in favor of CU and 
the regents on Churchill’s civil rights claim 
because Churchill failed to prove CU’s 
investigation into his alleged plagiarism 
constituted an adverse employment action.

The unanimous appeals court opinion was written 
by Judge Dennis Graham, with judges Diana Terry 
and Laurie Booras concurring. Graham and Terry 
are appointees of former Gov. Bill Owens; Owens 
advocated Churchill’s ouster. Booras was appointed by Gov. Bill Ritter.

Churchill contended that CU only investigated him 
for research misconduct because of his 
controversial but constitutionally protected 
remarks comparing 9/11 victims to an infamous Nazi.

But the motivation behind an investigation is 
irrelevant to whether it is an “adverse 
employment action,” the appellate panel ruled:

“In extensive argument to the trial court, 
Churchill’s counsel contended that motivation is 
the sine qua non of an adverse employment action. 
We are unaware of any case concluding that an 
investigation was adverse because of the motive 
of the investigators. Moreover, the record before 
us indicates that the investigation involved 
twenty-five faculty members, whose collective motive was not established.”

David Lane of Killmer Lane & Newman represented 
Churchill at trial and at oral arguments in the 
appeals court. Antony Noble of the Noble Law Firm 
and Denver attorney Thomas K. Carberry also represented Churchill on appeal.

Patrick O’Rourke, head of litigation at CU’s 
Office of University Counsel, represented the 
school at trial and oral arguments. Also 
representing CU on appeal was Kari M. Hershey of 
Denver’s Hershey Skinner law firm.

“We’re pleased with the decision that the 
appellate court made,” said CU spokesman Ken 
McConnellogue. “It affirms what we have contended 
all along, and we’ll see what the next steps are.”

Lane said Churchill will ask the state Supreme 
Court to review the decision, which he said 
allows the regents to violate the constitution with impunity.

“The Court of Appeals has rubberstamped the 
University of Colorado,” Lane said. “It’s a real 
shame that a jury says the First Amendment was 
violated, and the Court of Appeals shrugs and 
says that’s OK. They really had to torture facts 
to arrive at the conclusion they arrived at.”

The decision invites review by the U.S. Supreme 
Court, Lane said, because it cites two areas of 
the law that have not been decided by that court.




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