Court of Appeals: CU, Regents Cannot Be Sued for Violating U.S. Constitution
The folowing post was recently submitted to the newsfeed but disapeared in a few days. The content in no way violates the editorial policy, so I am at a loss of how it disapeared. I emailed the COIMC list about it, and I am a member of that list so I know that it was not approved for moderation to be sent out to the list. With no information or idea of what happened to this post, I am re-posting it. COIMC editors may contact me at firstname.lastname@example.org .
From the Ward Churchill Solidarity Network
Nov. 23, 2010. The Colorado Court of Appeals ruled that the University of Colorado and its Regents have absolute immunity when firing a tenured professor in violation of the First Amendment.
Attorney David Lane responds:
It is truly unfortunate that our most cherished freedoms are left in the hands of politicians and bureaucrats in black robes to protect. We are less free today because the Colorado Court of Appeals has given the go-ahead to the Regents to fire any professors they wish after running them through a sham “due process” procedure. A jury of Professor Churchill’s peers found that the Regents violated the First Amendment to the United States Constitution and the Colorado Court of Appeals is letting them get away with it. Their made-up justifications ring hollow in light of the freedom lost by their actions.
Ward Churchill summarizes the ruling:
The Center for Constitutional Rights (CCR) is wrong.
The American Association of University Professors (AAUP) is wrong.
The American Civil Liberties Union (ACLU) is wrong.
The ACLU of Colorado is wrong.
The Society of American Law Teachers (SALT) is wrong.
The National Lawyers Guild (NLG) is wrong.
The National Coalition Against Censorship is wrong.
Latina/o Critical Legal Theory is wrong.
And Federal law doesn’t apply in Colorado.
Read More at WardChurchill . net
Also, the following is an interesting brief summary of the impact of the decision in Colorado.
Law Week Online interviewed University of Denver Sturm College of Law Professor Alan Chen
LAW WEEK COLORADO
DENVER — The Colorado Court of Appeals’ decision last week denying reinstatement of Ward Churchill as a University of Colorado professor could significantly affect employment law in a few ways.
The decision could provide a roadmap for public employers to get quasi-judicial immunity for their employment actions, said University of Denver Sturm College of Law Professor Alan Chen, an employment law expert.
“Judicial immunity is absolute, so where it applies, it doesn’t matter whether the decision makers violated a constitutional right, or how clear that violation might be, the person whose rights are violated simply cannot get judicial relief,” Chen said in response to questions from Law Week.
“This part of the opinion is troubling, because most government employment decisions (or any employment decisions) are not typically made through judicial or quasi-judicial bodies. But the Churchill decision may encourage government executives to set up judicial-like bodies to review constitutionally questionable employment decisions to protect themselves from suits in future cases.”
The ruling that the investigation of Churchill was not an adverse employment action is also troubling, Chen said, as it could allow public employers greater ability to disguise retaliation against protected speech.
“Even if the decision makers found misconduct on his part, the evidence seemed to indicate that the investigation wouldn’t have been initiated but for Churchill’s controversial speech. This part of the decision has troubling free speech implications as well,” he said.
“There are all sorts of manners, some overt and some subtle, in which public employers can retaliate against their employees for engaging in speech on public matters. The more the law allows them to disguise their actions, and the harder it makes it to prove pretext, the greater the jeopardy to public discourse.”