[authors: Ellen Wetmore and Ellen Babbitt]
Recently, the Colorado Supreme Court affirmed the trial and appellate courts’ rulings in favor of the University of Colorado in the case of Churchill v. University of Colorado at Boulder. In so ruling, the Court conducted an in-depth examination of government officials’ immunity from suit, and concluded that plaintiff Ward Churchill was not entitled to any of the remedies that he sought.
Plaintiff Ward Churchill was a tenured professor at the University of Colorado at Boulder. In 2005, the University found itself in turmoil over an article Churchill wrote about the September 11, 2001 terrorist attacks. Churchill’s article contained a number of inflammatory statements, including one in which he likened 9/11 victims to Nazi war criminal Adolf Eichmann.
In response to the ensuing public controversy, the University’s Regents authorized the creation of an ad hoc panel to investigate Churchill’s academic works. The ad hoc panel found that Churchill’s essay constituted protected free speech, and that the University therefore could not dismiss him for it. However, during the course of its investigation, the panel also learned of several allegations of other academic misconduct on Churchill’s part. The University then initiated a formal investigation into the academic misconduct claims. This misconduct investigation concluded that Churchill had committed “serious, repeated, and deliberate research misconduct,” and the University’s Standing Committee on Research Misconduct recommended that Churchill’s employment be terminated.
The University then initiated dismissal proceedings, which involved several levels of review. Ultimately, the Board of Regents terminated Churchill’s employment.
Churchill then filed suit under 42 U.S.C. § 1983, alleging that the misconduct investigation and ensuing termination were retaliatory acts that violated his constitutional right to free speech. Both the trial and appellate courts found that the Regents were immune from suit, and Churchill appealed to the Colorado Supreme Court.
The Colorado Supreme Court’s Ruling
The Court’s ruling addressed three main issues: (i) whether the Regents were entitled to common law absolute immunity from Churchill’s claim seeking monetary damages; (ii) whether the Regents were entitled to statutory immunity from Churchill’s claims seeking equitable relief; and (iii) whether the Regents were entitled to common law qualified immunity from Churchill’s claim alleging bad faith investigation.
With respect to Churchill’s claim for damages, the Court applied the factors set forth in the United States Supreme Court’s decision in Butz v. Economou and ultimately concluded that Churchill’s termination was a quasi-judicial act, and that the Regents were therefore entitled to absolute immunity from the termination claim. To explain, common law absolute immunity applies to both judicial officials and other officials whose actions are “functionally comparable to the role of a judge.” As a preliminary matter, the Colorado Supreme Court found that the “foundational purpose” of absolute immunity – the ability for officials to make potentially unpopular decisions free from fear of harassment or intimidation – was “especially important in the university setting.” The Court reasoned that universities “need a certain degree of autonomy in their employment decisions,” and “[t]o hold otherwise could compromise the University’s institutional mission and integrity.” Proceeding to analyze the issue of absolute immunity, the Court found that the Butz factors favored the Regents, primarily because the termination process involved many procedural safeguards. Among other things, Churchill was permitted to present witnesses, oral argument, and evidence; to cross-examine witnesses; and to be represented by an attorney. The internal process involved a two-year investigation and consideration by five University bodies. Churchill also was afforded the opportunity to challenge the Board’s decision through an administrative review statute, but chose not to pursue that option. The Court ultimately found that absolute immunity applied consistent with Butz.
With respect to Churchill’s claims for equitable relief (through which he sought reinstatement and front pay), the Court also ruled in favor of the University. While common law immunities do not apply to § 1983 actions for equitable relief, Congress created statutory immunity for “judicial officers” against such claims through passage of the Federal Courts Improvement Act of 1996. Rather than address whether the Regents would be considered “judicial officers” under the Act, however, the Court affirmed the lower courts’ rulings on the grounds that the equitable remedies sought by Churchill were not justified. The Court explained that reinstatement would not be feasible because of the acrimonious relationship between the parties. Moreover, an injunction would improperly force the University to compromise its mission and integrity by re-hiring someone who had been found responsible for numerous instances of plagiarism and other academic misconduct. The Court held that front pay was also inappropriate in light of the fact that Churchill had made no attempt to mitigate his lost salary.
Finally, with respect to Churchill’s bad faith claim, the Court noted that the law was unsettled but nevertheless held that a reasonable public official would not know that the initiation of an employment investigation in response to protected speech would be unlawful. Therefore, the Regents were entitled to qualified immunity from suit.
Clearly, this decision stands as a strong statement in favor of immunity for state university officials investigating difficult or controversial issues; indeed, the Court even affirmed the application of immunity in the face of Churchill’s argument – and a jury finding – that the University “used [Churchill’s] protected speech as a substantial or motivating factor in the decision to discharge [him] from employment.” The Court’s opinion also confirms, yet again, the deference afforded academic institutions in determining who is fit to teach (and the corresponding reluctance, on the part of courts, to grant injunctions compelling reinstatement of faculty dismissed for cause). However, while the Colorado Supreme Court’s ruling represents a resounding victory for the University of Colorado, this case may continue with a petition for certiorari to the United States Supreme Court. We will continue to monitor this matter closely, and will report on any further developments.