I guess we can look forward to an avalanche of "legislating from the bench," with Scalia and his Conservative mob having laid out their Political Activist Precedence in Gore v Bush & Ricci.

We're in Big trouble.

 In the academy, there are few more serious charges one can bring against a scholar, and all of Churchill's protestations that he was fired because of his comments could not hide an investigation that was widely followed by Professors and adjuncts across the nation.

I'm not saying that this case is without controversy in the academy, but for myself and some that I've talked to, the judges ruling, placing emphasis as it does on the evidence of academic misconduct, jibes with our unease with the jury's verdict

I'm not a lawyer-I'm an academic who has tracked several cases and issues related to academic freedom and tenure for some time, and had some practical experience in internal University investigations.

There is nothing about this ruling at all that surprises me. Past precedents from the Reagan-Bush-Bush appointees have significantly weakened both the right to sue states, the rights to sue employers in general, and the rights of public employees to Constitutional protection in the workplace. The Courts have been particularly hostile to the concept of free speech in one's capacity as a public employee.

I find the ruling to be frightening in its implications. In essence, it sanctions the ability of internal investigations to be the sole, final word. But these investigations are not, and by their nature cannot be, carried out with full knowledge and attention to court room procedures and rules of evidence. Nor for that matter can I see how Boards of Regents, or local Boards of Education in K-12 can be objective judges of their own decisions (though multiple precedents affirm they should be trusted to be).

Suppose matters had gone differently-suppose that the internal committees had exonerated Churchill? The Board was under no legal obligation to accept that outcome. Suppose the committees themselves had violated due process? So in effect, an internal Kangaroo Court process can be sanctioned, leaving one with no final right to appeal.

So, maybe the lawyers can explain to me what is left of tenure. Has not tenure now been effectively converted into a "will to employ" situation, except that the employer has to make a stab-not even in good faith-at having some kind of internal process for tenured faculty?

I have more to say about my views on what Churchill's sins are and are not. But perhaps I'll leave that for another post.

But needless to say, I think I'll mark this day on my calendar as the day the First Amendment in academia died.

As I read the opinion, Churchill never gets to the remedy of reinstatement unless the court of appeals first reverses the ruling on quasi-judicial immunity.  The opinion concerns a single section 1983 claim.  If as the judge held quasi-judicial immunity bars the claim, the case is over.  With the university having won, the court has no power to grant any relief; game set and match to the university.

If, however, the court of appeals finds that the Regents are not a quasi-judicial body, then the jury's nominal damage verdict must be reinstated, and with that, the question of further relief -- reinstatement or front pay -- becomes ripe for decision.

The trial judge correctly notes that reinstatement and front pay are both equitable remedies.  In employment discrimination and retaliatory discharge cases, courts do deny reinstatement to prevailing plaintiffs, particularly in higher level positions, with some frequency for the reasons the judge relied on -- the poisoned atmosphere makes it unlikely the employer and the employee can work effectively together, and the finding of research misconduct brings into play deference to academic judgments (e.g., SCOTUS opinion in Grutter v. Bollinger upholding the University of Michigan's race based affirmative action admission policy).  Were this a federal lawsuit, the scope of appellate review on that question would be abuse of discretion, and I think on the record recited by the trial judge, Churchill would have a tough time winning.

Front pay is also equitable, and is customary relief when reinstatement is denied.  But Churchill has two other problems that may undermine his front pay appeal -- the jury award of only nominal damages, and his failure to seek alternative employment.  Whether the latter is sufficient to sustain the trial court's ruling is harder to judge without knowing much more about the record than I do, but given the findings on research misconduct and the refusal of the jury to award actual damages, the going may be tough.

I disagree with the ruling on quasi judicial immunity, but do think it's a close question.  I can't tell from the opinion what became of the other claims in this litigation; presumably Churchill also sued under state law, and the opinion makes clear that it is ruling only on his second claim for relief, the first amendment claim under section 1983.

I understand the rationale for suing in state rather than federal court.  As the federal courts have become ever more conservative, state courts have become a more hospitable forum for employment claims.  I'm surprised the university didn't remove; that's standard defense practice in Florida when plaintiffs file claims in state court based on section 1983 or modern federal civil rights statutes.  

has the potential to chill the right to redress of others who are improperly terminated or treated unfairly by universities.

That is a huge problem, but I'm equally concerned about the oppressive effect on academic freedom as it pertains to oppositional political speech.

As with Bush/Gore, where the majority just didn't like Gore, and twisted themselves like rubber contortionists to invent a cockamamie (one time only) law, this judge just didn't like Churchill, and used Scalia's template for his "reasoning."

  the stipulations of the party with the university waiving 11th amendment immunity allowing it to be sued directly in exchange for Churchill agreeing that the University would assume the right to assert any defenses the individual Regents could have asserted does not explain to me why the parties agreed to have the quasi-judicial immunity decided after a trial rather than before. the order just says they agreed because it is a matter of law for the judge to decide but that doesn;'t explain why they agreed to have it decided after the trial ratgher than before.

And CU said today it will seek $10k in expenses from Churchill. No legal fees though:

Churchill brought suit under the Civil Rights Act, which would allow his legal team to collect attorney's fees had he won the suit.

But the law doesn't allow a successful defendant - in this case CU - to collect attorney's fees.

So says the opinion.