ACLU Files Brief for Ward Churchill in Appeal Over Reinstatement

By Jeralyn, Section Civil Liberties
Posted on Thu Feb 18, 2010 at 07:58:12 PM EST
Tags: Ward Churchill (all tags)

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Fired C.U. professor Ward Churchill is appealing the trial court's decision (available here)not to order his reinstatement after a jury ruled in his favor that he was terminated in retaliation for unpopular remarks about 9/11. The judge vacated the jury verdict, finding university officials had absolute immunity because they were acting as quasi-judicial officers in firing him. The jury had awarded Churchill $1.00 in damages,

The ACLU, American Association of University Professors and National Coalition Against Censorship today filed an amicus brief on behalf of Churchill. The brief argues the trial court was wrong to grant CU Regents absolute immunity, and given that there was a proven First Amendment violation, the presumed equitable remedy is reinstatement.

The brief is here. Background is here and here.

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ACLU Files Brief for Ward Churchill in Appeal Over Reinstatement | 90 comments (90 topical)

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If this were really a First Amendment issue (5.00 / 1) (#1)
by Honyocker on Thu Feb 18, 2010 at 08:31:42 PM EST

rather than a clear-cut case of academic fraud, then the ACLU might have something here, but as it is, what a waste of time and resources. Glad I don't give money to the ACLU anymore. I dug it when they were about protecting and defending the Bill of Rights (except of course, for the Second Amendment, on which which the ACLU has always been deafeningly silent) rather than just another advocacy arm of the progressive wing of the Democratic Party...shame that.

This is absolutely (5.00 / 4) (#2)
by kenosharick on Thu Feb 18, 2010 at 08:49:39 PM EST

a first amendment issue and I aplaud the ACLU. As both a student and instructor I find the damper that those on the right are trying to place on academic freedom frightening and disgusting.


: Academic fraud is not equal to academic freedom (none / 0) (#14)
by Buckeye on Fri Feb 19, 2010 at 10:15:24 AM EST

Not only is the ACLU correct in this case (5.00 / 0) (#18)
by Peter G on Fri Feb 19, 2010 at 11:11:25 AM EST

but your knock on the ACLU, Hon, is totally incorrect. Assuming for purposes of discussion that the Democratic Party actually does have a "progressive wing," the ACLU is not part of it. The ACLU (which I proudly serve as a member of the Board of its Pennsylvania affiliate) is relentless non-partisan. We support free speech, due process (and religious freedom) rights impartially, across the political and artistic spectrum, opposing all content-based distinctions and restrictions. The ACLU opposes every administration's attacks on civil liberties, as it has from its founding 90 years ago, right down to the present. Just look at the website for numerous illustrations. (And the ACLU is not "silent" on the Second Amendment. Although there is a fair amount of internal disagreement on this, the official position is that the Second Amendment does not guarantee an individual right to possess weapons but rather ensures that each states can maintain a "well-regulated militia" that the federal government cannot ban.)


Actually, my knock on the ACLU is correct, (none / 0) (#84)
by Honyocker on Fri Feb 19, 2010 at 11:16:33 PM EST

and, by the way, offered not as an attack on what was once a fine organization, but rather as an objective observation of the ACLU's obvious move in recent years from defender of the bill of rights to an advocacy organization for an expanded public sector at any cost, whether financial, in the form of higher taxes and spending, or constitutional in the form of lost liberties, or both. The fact is, these things happen. Organizations change over the years. As an example, Mothers Against Drunk Driving started as a group that advocated only for tougher DUI laws. Today, MADD is just another lobbying outfit with a broad prohibitionist agenda, of which DUI laws are just one part. Call it mission creep, or losing sight of what you once believed in, or just plain selling out. But I do understand that the bunker mentality (or group think) that often develops in an organizational structure might make it all too easy to fool yourself into believing the ACLU is still "non-partisan" or "impartial," but maybe that just means it is time to step outside of the internal echo chamber and take a hard and honest look at things. And I must say, to pretend to be unaware that there exists a progressive wing of the Democratic party is pretty disingenuous for someone who claims to be on the board of an ACLU affiliate. Which party then does the progressive left in America align itself with? The Republicans? Never heard of Organizing For America, or Progress Now, or Media Matters, or CODA? Here in Colorado, these organizations exist (or in some cases, existed) for the purpose of electing Democrats, preferably, but not always, as hard left Democrats as possible. And it worked, for now. And the Colorado chapter of the ACLU has been a loyal supporter of the cause, even when it has meant selling itself out. Do you really think if a radically conservative professor at CU Boulder had been caught re-handed in plagiarism and academic fraud that the ACLU would have mounted a faux First Amendment case on his behalf? Please.


: Utter b/s (none / 0) (#85)
by Peter G on Sat Feb 20, 2010 at 04:22:19 PM EST

You do not cite, and could not cite, a single example of the ACLU supporting "an expanded public sector at any cost, whether financial, in the form of higher taxes and spending, or constitutional in the form of lost liberties, or both."
On the completely unrelated subject of the so-called "hard left" or "progressive wing of the Democratic Party," you failed to appreciate the ironic tone of my comment. What I thought I had expressed, but obviously not clearly enough for some people, was that rank and file Democrats are a heck of a lot more "progressive" in the policies they support than anyone with power inside the Party, and that while there are organizations, such as the ones you mention and others, attempting to pressure the Democratic Party to restore progressive values to its agenda, those folks lack sufficient power within the party structure at this time even to be referred to as a "wing" of it. (And those who support progressive values within our political system have almost nothing in common with the minuscule "hard left" that (barely) exists in America.)

Yea, all those campus speech codes, (5.00 / 1) (#3)
by Honyocker on Thu Feb 18, 2010 at 09:06:31 PM EST

so obviously a plot of the vast right wing university administration conspiracy...frightening. Glad the left would never do anything like police speech on campus.

What Colleges are you talking about (5.00 / 1) (#4)
by samtaylor2 on Thu Feb 18, 2010 at 10:10:49 PM EST

I went to one of the most liberal (def- open minded, supportive or minority rights, open to different world perspectives) in the country- Oberlin College, and not once did I hear about any language code.

P.S.

On a side note. Ward Connerly came and spoke at our school. And while I think he was attacked in ways that were not okay, I felt that he was intellectually dishonest.


Churchill has the right to say (none / 0) (#5)
by jimakaPPJ on Fri Feb 19, 2010 at 09:15:02 AM EST

what he wants. His employer, just as MacDonald's can fire an employee who bad mouths Big Mac, should have the right to fire him.

And yes, I understand tenure and maintain that it is an idea that was become bad over time.

Plus Churchill had other problems besides his ...Little Eichmanns....in the WTC towers

CU began investigating Churchill after an essay surfaced in which he had called some victims of the 2001 terrorist attacks "little Eichmanns."
The statement triggered outrage and led to calls for his dismissal.
Subsequently, the university launched an investigation of his scholarly writing and found that he engaged in repeated acts of plagiarism over a period of years.

BTW - If you want to discuss speech codes bring the subject up in an Open thread and I will be happy to provide some information.

In the meantime I recommend Google.


Churchill's employer is a state agency, (none / 0) (#6)
by Peter G on Fri Feb 19, 2010 at 09:31:08 AM EST

the University of Colorado, Jim, not a private corporation, like McDonald's. Under the First and Fourteenth Amendments, that makes all the difference.


What about the plagarism? (none / 0) (#7)
by jbindc on Fri Feb 19, 2010 at 09:33:19 AM EST

That is not covered by either the First or Fourteenth Amendment.


Don't change the subject (5.00 / 0) (#9)
by Peter G on Fri Feb 19, 2010 at 09:40:47 AM EST

Your comment was about the content of the McDonald's employee's speech, and I pointed out the constitutional difference, and thus the fallacy in your analogy. Neither your comment nor my clarification had anything to do with plagiarism. As for that point, however, in the Churchill case there was a jury trial. The jury heard all the evidence from both sides. The jury concluded that Churchill was not actually fired for academic plagiarism but rather because of disagreement with the substance of his political comments. That's what the ACLU says violates the First Amendment. If the jury concluded that the University had been truthful in stating their reason for firing Churchill, there would be no civil liberties issue.


It wasn't my comment - please re-read (none / 0) (#11)
by jbindc on Fri Feb 19, 2010 at 09:44:45 AM EST

But he's still toxic - what university would want him on staff? I certainly wouldn't hire him.


: Oh, sorry (none / 0) (#16)
by Peter G on Fri Feb 19, 2010 at 10:58:30 AM EST

I confused "jimaka.." with "jbindc." My mistake. I did answer you about the "plagiarism," though. I jury heard all the facts and determined that the plagiarism claim was just a pretext for the violation of free speech rights. I do have qualms about the tenure system in many instances, but the Churchill case actually illustrates that its rationale is still viable and perhaps essential to the maintenance of academic freedom.

See my comment #12 (none / 0) (#13)
by jimakaPPJ on Fri Feb 19, 2010 at 10:05:21 AM EST

I understand. (none / 0) (#12)
by jimakaPPJ on Fri Feb 19, 2010 at 10:04:00 AM EST

That is why I wrote:

should have the right to fire him.

So are you (none / 0) (#10)
by JamesTX on Fri Feb 19, 2010 at 09:41:14 AM EST

saying we are duty bound to avoid criticism of all violence victims, regardless of what they do in their lives outside of their victim status? Or are you just saying we should restrict our speech to expression of strong nationalist sentiments whenever there is a large scale attack? Or is it that you simply disagree with his speech being protected by tenure, regardless of what he says? I'm not saying you are wrong. I am just trying to understand what specifically causes so many people to automatically see Churchill's treatment as justified. This is relevant, because if the same standards for charging plagiarism which were used against Churchill were applied to all tenured academics, there would be a lot of empty offices and labs. Plagiarism is the Catch-22 in academics.


I look at his WTC (none / 0) (#15)
by jimakaPPJ on Fri Feb 19, 2010 at 10:21:25 AM EST

comments as providing an alibi for the actions of the terrorists. In short it becomes a means to bring equivalence to their actions and the actions of the US.

Churchill's comments struck millions as so outrageous as to bring disfavor to the University. Plus, the University is paid for by the citizens in a variety of ways. Thus I see him as an employee and felt then, and now, that he should be fired.

And yes, I understand Peter G's comment and do not challenge it from a legal view. I just think the law is wrong. I also think tenure is a tradition that has become wrong over time.

And if applying the same standards result in what you claim, then so be it.

The only person I feel some sympathy for is Churchill's lawyer who, if I understand correctly, won't be paid. That's a shame because we do need lawyers who will do what he did.


It's clearly a brave new world (none / 0) (#17)
by Rojas on Fri Feb 19, 2010 at 11:05:25 AM EST

in which we cower at the thought of freedom of speech.


Nope (none / 0) (#20)
by jimakaPPJ on Fri Feb 19, 2010 at 12:12:42 PM EST

I have no problem with Churchill speaking his mind.

I just also believe that the citizens, through their University, have the right to fire him for his insult to them.

I also think the investigation provided a fine secondary reason to fire him.

And yes, I understand that the law says otherwise.

Doesn't bother me. I remember lots of Jim Crow laws that were wrong. They (finally) got fixed.


It's not just the law (none / 0) (#28)
by MKS on Fri Feb 19, 2010 at 12:58:00 PM EST

It's the First Amendment....And, you can't fire people for exercising a constitutional right....


You sure can get fired (none / 0) (#31)
by jbindc on Fri Feb 19, 2010 at 01:02:36 PM EST

There's many restrictions on the First Amendment - the classic "yelling 'fire' in a crowded theater" comes to mind.

People are fired for things they say all the time. Even government employees are restricted, under the Hatch Act, for example, from saying certain things at work.


Not in California (none / 0) (#33)
by MKS on Fri Feb 19, 2010 at 01:11:40 PM EST

It is called a Tameny claim--getting fired for exercising a constitutional right....

Whistleblowers have protection too....

And a wrongful termination claim based on Tameny claim is one of the few wrongful termination claims that carry punitive damages in California. Here is a blurb from a California treatise:

Political activity: Lab.C. §§ 1101 and 1102 's protection for an employee's political activity, particularly political speech, "inures to the public at large rather than simply to the individual or proprietary interests of the employee or employer." [Ali v. L.A. Focus Publication (2003) 112 CA4th 1477, 1487-1488, 5 CR3d 791, 798-799--newspaper editor who was fired for publicly criticizing public official outside workplace had valid Tameny claim]

That's not absolute (none / 0) (#40)
by jbindc on Fri Feb 19, 2010 at 01:25:19 PM EST

Employees can and do get fired for insubordination, giving away business secrets, and many other things that involve their First Amendment rights all the time.

And according to the case you cited

...newspaper editor who was fired for publicly criticizing public official outside workplace had valid Tameny claim

If the editor had used his First Amendment right to publicly criticize his employers, or give away business secrets, etc., he still could have been fired.

The First Amendment has never been absolute, so your claim that someone can't be fired for exercising that right is not entirely true.


Of course (none / 0) (#43)
by MKS on Fri Feb 19, 2010 at 01:31:08 PM EST

But the context here is a political statement by a University professor that was very unpopular--not giving away trade secrets or advocating immediate violence (your fire in the theater scenario)


That (none / 0) (#45)
by jbindc on Fri Feb 19, 2010 at 01:38:11 PM EST

Plus

In 2005, University of Colorado at Boulder administrators ordered an investigation into seven allegations of research misconduct.[32]
On May 16, 2006 the University released the findings of its Investigative Committee, which agreed unanimously that Churchill had engaged in "serious research misconduct", including falsification, fabrication and plagiarism. The committee was divided on the appropriate level of sanctions.[2] The Standing Committee on Research Misconduct accepted the findings of the Investigative Committee that Churchill had "committed serious, repeated, and deliberate research misconduct", but also disagreed on what sanctions should be imposed.[49] Churchill's appeal against his proposed dismissal was considered by a panel of the University's Privilege and Tenure Committee, which found that two of the seven findings of misconduct did not constitute dismissible offences. Three members recommended that the penalty should be demotion and one year's suspension without pay, while two favored dismissal.[3][50]
On July 24, 2007, the University regents voted seven to two to uphold all seven of the findings of research misconduct, overruling the recommendation of Privilege and Tenure panel that two of them be dismissed. They then fired Churchill by a vote of eight to one

Now, while the jury may not have believed it, the firing obviously took place before the trial, so that's what it was based on. His statements may have been the straw that broke the camel's back, but what keeps getting lost in this debate is the fact that it just wasn't one isolated incident.

And the fact that the jury took his attorney's word that it wasn't about the money speaks to how really harmed they thought he was.


The jury findings control here (none / 0) (#46)
by MKS on Fri Feb 19, 2010 at 01:43:46 PM EST

Everyone knew that the University was desperately searching for an excuse to fire him....And that is what the jury found....

So, Churchill, as found by the jury, was fired for making a politically unpopular comment....

And, yes, the jury only awarded him $1--but that would still entitle his attorney to his fees under federal law--and that could be well over 100k....


But as you said (none / 0) (#47)
by jbindc on Fri Feb 19, 2010 at 01:47:38 PM EST

The judge vacated the verdict.

And my point was, people ranting around here because the University fired him for this isolated incident are not looking at the whole picture. (And IMO - the University was right - too miuch evidence that he was plagarizing and misrepresenting others' work -
I could care less about his 9/11 statements except to say he's a jerk).


: Well, the judge's ruling (none / 0) (#53)
by MKS on Fri Feb 19, 2010 at 02:05:21 PM EST

was not based on the evidence of plagiarism but on his assessment that the Univeristy had complete immunity.....a legal issue subject to de novo review on appeal....
And, the ACLU brief, admittedly only one side of the argument, makes pretty short shrift of the immunity argument.....
The issue cuts both ways....UC Berkeley won't be able to fire Yoo, either....