Suit futile, experts say

Prevailing feeling on Churchill: 'If they fire him, he'll stay fired'

Berny Morson, Rocky Mountain News

Published June 27, 2006 at midnight

Text size

More Education

University of Colorado professor Ward Churchill has little chance of prevailing in court if he contests his impending dismissal, legal experts say.

Churchill's lawyer, David Lane, said Monday he will "absolutely" sue if the tenured ethnic studies professor is fired for academic misconduct, as recommended by Interim chancellor Phil DiStefano.

Lane's argument is that the misconduct charges are a pretext to punish Churchill for his comments comparing victims of the Sept. 11, 2001, terrorist attack to Nazi bureaucrat Adolf Eichmann.

"It's inconceivable that any of this would have happened but for his 9/11 comments," Lane said.

Attorneys who specialize in higher education law said CU can win a suit as long as the university followed due process in moving against Churchill.

And, they say, a powerful report by a CU investigative committee, detailing the evidence of misconduct, will be tough for Churchill to overcome.

"If they fire him, he'll stay fired," said Harvey Silverglate, a Massachusetts civil liberties attorney who specializes in representing faculty members in academic freedom cases.

But Michael Olivas of the University of Houston Law Center said Churchill has "a better-than-average chance" of showing that the investigation of his scholarship was launched in retaliation for his expression of unpopular opinions.

"They wouldn't be caring about Ward Churchill if it hadn't been for his 'little Eichmanns' remark, which may be inelegant, but he's entitled to it," said Olivas, the author of a widely used book on higher education law.

A committee that included DiStefano and the law school dean ruled last year that Churchill could not be fired for his political beliefs. But the panel authorized an investigation of the academic-misconduct charges, which were leveled by scholars at other universities and preceded the uproar over the Sept. 11 comments.

The investigative report, released May 16, upheld all seven charges against Churchill, calling them "serious."

But the panel also voiced concern that the inquiry may have been motivated by Churchill's political views.

Olivas noted that the academic charges have been circulating against Churchill since the mid-1990s in scholarly journals. But CU waited to act until the uproar over Churchill's political views, he said.

"If he is removed for this, I believe he has a strong case that his academic freedom is being violated," Olivas said.

Olivas was the only attorney among six contacted by the Rocky Mountain News who believes those arguments will prevail. The others said Churchill will have a hard time countering the evidence of misconduct in the investigative committee's 124-page, closely reasoned report.

Courts accord "a very high level of deference" to internal decisions of universities, said Robert O'Neil, director of the Thomas Jefferson Center for Free Expression in Charlottesville, Va.

Churchill would be on firmer ground if the university had fired him summarily instead of following due process, said O'Neil, a former general counsel to the American Association of University Professors who is completing a book on academic freedom. That would violate the First Amendment, he said.

But charges such as plagiarism and misrepresentation are hard to counter, he said.

"The consensus of the academic community is so hostile to plagiarism that a faculty committee basing a recommendation for dismissal on proof of plagiarism - that's a judgement that I think would almost certainly survive in court," O'Neil said.

Bill Kaplin, a law professor at Catholic University in Washington, D.C., and visiting professor at Stetson University in Gulfport, Fla., said a judge would be reluctant to reopen the factual arguments already decided by CU's investigative committee.

"What's more likely is that the court would be wanting to find ways to defer to the judgments of the institution rather than redoing the whole thing. That, I think, is the basic inclination a court would have," Kaplin said.

Churchill would have the tough burden of finding evidence that the investigation was motivated by his political views, Kaplin said.

Most faculty members in Churchill's position would resign rather than prolong a process that keeps the charges in the public eye, Kaplin said.

"It's pretty much always somewhat of a long shot for a faculty member in that situation," Kaplin said.

Silverglate, the Massachusetts attorney, said pretext cases are "extraordinarily difficult to win."

"The reason it's so hard to win a pretext case is because, in a pretext case, the academic dishonesty is already proven (by the faculty investigation)," Silverglate said.

"And so a court would have to swallow very hard to say, 'Even though they have proven the case of academic dishonesty, we're not going to let him be fired because it's really a cover or a pretext for a political witch hunt,' " said Silverglate, who is on the board of the Massachusetts chapter of the American Civil Liberties Union and a founder of the Foundation for Individual Rights in Education, a group that defends faculty members in academic-freedom cases.

morsonb@RockyMountainNews.com or 303-892-5209

Subscribe to the Rocky Mountain News