Case No. 09-CA-1713, Colorado Court of Appeals
ACLU Case No. 2009-09
In early 2005, controversy erupted over the discovery of an essay that University of Colorado Ethnic Studies Professor Churchill had published in the fall of 2001, after the 9/11 terrorist attacks. The essay is titled “Some People Push Back: On the Justice of Roosting Chickens.” Churchill argued that American foreign policies provoked the attacks, and he referred to workers in the World Trade Center as “little Eichmanns” who were complicit in the evils wrought by “America's global financial empire.”
Several Colorado politicians, including Governor Bill Owens, called on the Board of Regents to fire Churchill. The Board issued an apology to the American people and directed the University administration to investigate Churchill. The investigation led to charges of research misconduct. After university procedures were followed, the Board of Regents fired Churchill. Churchill filed suit in state court, arguing that he was fired for his constitutionally protected expression, in violation of the First Amendment.
After a four-week trial, the jury rejected the Regents’ argument that Churchill was fired because of research misconduct. The jury found that the Regents would not have fired Churchill but for his controversial comments about 9/11. The jury awarded $1 in nominal damages for this violation of the First Amendment.
Churchill filed a post-trial motion asking the judge to order reinstatement, a remedy that is equitable in nature and is therefore a decision for the judge, not the jury.
In a post-trial order, the trial court took away the jury’s verdict, holding that the Regents were entitled to “quasi-judicial immunity.” In a portion of the order that reads as an alternative ruling, the trial court rejected Professor Churchill’s request for an injunction ordering reinstatement. Churchill appealed.
The ACLU First Amendment Working Group filed an amicus brief arguing that awarding immunity in a case like this leaves professors without a remedy for violations of their constitutional rights. The amicus brief, joined by the Colorado ACLU, the National Coalition Against Censorship, and the American Association of University Professors, also argues that reinstatement is properly presumed to be an appropriate remedy in First Amendment cases.
Mark Silverstein , ACLU of Colorado Legal Director
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