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ACLU supports reinstatement for Ward Churchill

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DENVER – The American Civil Liberties Union is arguing that former professor Ward Churchill should be reinstated by the University of Colorado because he was wrongly fired for exercising his right to free speech.

The national ACLU, ACLU of Colorado, American Association of University Professors, and National Coalition Against Censorship filed a friend-of-the-court brief Feb. 18 with the Colorado Court of Appeals.

Churchill’s case has been pending in the appeals court since a jury’s verdict supporting his retaliatory firing lawsuit was thrown out in July by a District Court judge who said CU regents had immunity from lawsuit.

“The First Amendment prohibits government officials from suppressing lawful speech or retaliating against those who engage in such speech, no matter how unpopular or offensive the speech may be to some,” the organizations stated in a 53-page filing. “That is especially the case in the university setting, where the Supreme Court has made clear that First Amendment freedoms must be vigilantly protected.”

Churchill, a tenured professor who focused on Native issues, was fired from CU’s ethnic studies department in 2007, more than two years after attention was drawn to an essay he wrote that seemed to blame 9/11 victims for U.S. government policies that preceded the 2001 attack on the World Trade Center. In the ensuing furor, a former Colorado governor, CU regents, talk-show hosts and others called for his dismissal.

“Unless the trial court’s ruling is corrected, university professors will receive the chilling message that silence is smart and voicing unpopular views can be fatal to their careers. The First Amendment right to speak out is meaningful only if it is enforceable in court.” -Mark Silverstein, American Civil Liberties Union of Colorado legal director

An ad hoc investigation was begun by CU after the 9/11 essay to see if Churchill had “crossed the line” of protected speech and, finding he had not, began an investigation into alleged research misconduct, according to another brief in support of Churchill’s case filed by the National Lawyers Guild, Center for Constitutional Rights, Society of American Law Teachers, and others.

“Most allegations did not withstand scrutiny, but based on some findings of misconduct, internal investigative bodies recommended sanctions less than termination,” the brief states, noting CU’s president and Board of Regents overrode the recommendations and fired Churchill.

Although Native and non-Native scholars testified for and against the allegations related to academic misconduct that CU had said prompted Churchill’s firing, the District Court jury considered only whether he was fired in retaliation for the essay in which he used the term “little Eichmanns” to describe financial sector employees he likened to Nazi functionaries in their enabling of U.S. policies.

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The jury found he would not have been fired had he not written the 9/11 essay, but awarded him only $1 in damages because a single juror did not want to award “significant money,” according to the sworn affidavit of another member of the jury panel. “We listened to Churchill’s testimony and hoped that the judge would give him his job back or give him some compensation.”

CU violated Churchill’s rights, and he is “therefore entitled to receive an equitable remedy to make him whole, regardless of whether the jury awarded him significant monetary relief,” and when there is a proven First Amendment violation, “the presumed equitable remedy is reinstatement,” the ACLU brief states.

The judge who vacated the jury’s finding that Churchill was improperly fired said CU’s Board of Regents is a “quasi-judicial” panel that cannot be sued. The ACLU in its brief counters that the CU Regents were “far from neutral or independent” and the Supreme Court has emphasized “the limited availability of absolute immunity and the importance of neutrality and independence in decision makers entitled to this quasi-judicial immunity.”

The ACLU, AAUP and National Coalition argued that “plaintiffs whose constitutional rights have been violated must be provided with a remedy and that in this case, Churchill should be reinstated to the job from which he was wrongly fired.”

“Unless the trial court’s ruling is corrected, university professors will receive the chilling message that silence is smart and voicing unpopular views can be fatal to their careers,” said Mark Silverstein, ACLU of Colorado legal director. “The First Amendment right to speak out is meaningful only if it is enforceable in court.”

Churchill’s opening statement notes that before his firing he was a full professor at CU with the rights and privileges of a tenured faculty member and that he was chair of the Ethnic Studies Department.

“He had been employed by the university for nearly 30 years, during which time he had written or edited more than 20 books and 120 articles,” the brief states.

In his appeal, Churchill noted that the trial court had denied compensation in part because it was said he had not “seriously pursued any efforts to gain comparable employment, but has instead chosen to give lectures and other presentations as a means of supplementing his income.”

“At trial, Professor Churchill specifically testified about the problems he had finding another position after the university had labeled him as ‘a fraud, a plagiarist, a fabricator, whose scholarly work is not worth a bucket of (warm) spit,’” his opening brief states, citing the trial transcript.

CU’s answering brief is to be submitted by March 23 and oral arguments may be requested before the Colorado Court of Appeals.