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A scholar who focused on Indian issues is denied reinstatement

DENVER – A controversial former professor failed in his bid to regain his tenured faculty position at the University of Colorado despite efforts by his attorneys to focus on Constitutional guarantees of free speech rather than on allegations of academic misconduct.

Ward Churchill’s battle with CU drew national and international attention over the last two years. It ended July 7 in Denver District Court, when Judge Larry J. Naves granted CU legal immunity, vacated the verdict of a jury in Churchill’s civil rights case, and denied him reinstatement or money for future pay foregone.

“I can’t think of any way to improve on Steve Earle’s line from ‘The Hard Way,’ ‘There are some who break and bend. I’m the other kind,’” Churchill said. He will contest the decision, which is expected to go to the Colorado Court of Appeals.

The judge said the jury found Churchill had suffered no actual damages from his firing. The former ethnic studies professor can continue writing books and articles, giving paid lectures, and conducting other scholarly activities, indicating he can continue to exercise his First Amendment rights, Naves ruled.

The judge also upheld immunity from lawsuit for the CU Board of Regents, who fired Churchill for “conduct below the minimum standards of professional integrity,” according to the ruling.

In a 42-page opinion, Naves determined that no action should be taken against the university because, according to CU’s lawyers, the Board of Regents is not a political body, but was acting as a governmental entity in a quasi-judicial capacity.

In deciding against reinstatement, Naves said Churchill had made hostile remarks against CU and might retaliate with further legal action. Reinstatement would also negate faculty control over performance standards and could damage CU’s reputation in the broader academic community as having a department that “tolerates research misconduct,” he said.

Churchill was fired by CU after he wrote a post-9/11 essay in which he implicated World Trade Center financial operations in U.S. foreign policy-related violence. The jury in a subsequent civil trial upheld his position that the university fired him illegally in retaliation for the essay, not for academic wrongdoing. A hearing July 1, from which the current ruling stemmed, was to determine whether he would receive reinstatement or other compensation.

Naves could have exercised various options, including reinstatement, an award of damages, reimbursement of Churchill’s substantial legal fees, or “front pay” for the five to 10 years Churchill would have received had he not been fired, according to legal observers.

The timeline leading up to Churchill’s current filing for reinstatement began in 2005, when the controversial 9/11 essay came to light and furor ensued, with a former Colorado governor and state legislators calling for his removal, radio and television conservative talk shows demanding he be fired, and Native detractors attacking him for airing his views as a Native when they said he had not provided proof of tribal enrollment or American Indian descent.

From 2006 into 2007, when Churchill was fired, CU committees combed his work for any evidence of research misconduct. They concluded that he had misrepresented or misstated the General Allotment Act of 1887, the Indian Arts and Crafts Act, and historical accounts of smallpox outbreaks, and that he had plagiarized or ghost-written other pieces.

Churchill’s case centered on his contention that he had the right to express views that might be unpopular with some people, but that were protected under the Constitution and under the principle of free speech in academia. His attorneys minimized questions about his research integrity by noting they were “three bad footnotes in 30 years.”

Churchill has written at least 10 books on Native issues, including those about the North American genocide, the legacy of colonialism, indigenous resistance, limitations of the legal system, the boarding school era, the implications of blood quantum requirements, struggles for the land, and related topics, including the contemporary repression of Native peoples.

At trial, David Lane, Churchill’s lead attorney, made impassioned pleas for freedom of speech and said that key Churchill detractors had lied under oath. CU’s counsel, Patrick O’Rourke, asserted that Churchill had undermined what CU does “as an institution.”

In his ruling, Naves said he agreed with CU officials who said “any external action to return Churchill to the faculty will inevitably weaken the capacity of University of Colorado faculty to hold errant or dishonest colleagues to account in future cases of academic misconduct” and “make it far more difficult to hold students to high standards of honesty in research and writing.”

Before the current ruling, both sides had given their interpretation of the jury’s award of only $1 in Churchill’s civil case, with CU contending that it signaled some vindication of CU’s position and Churchill asserting that jurors were told he sought justice, not cash. Naves said the jury’s award showed that Churchill had suffered no actual damages and that “reinstatement is not an appropriate remedy.”