Att: 'Torchlight, pitchfork parade' led to firing

The University of Colorado fired Ward Churchill in 2007 for academic misconduct related to plagiarism charges. He is seeking to win back his job.

DENVER?A Colorado Supreme Court justice took exception to arguments that the University of Colorado was within its right to fire a professor because of the disruption caused by public outcry over an essay comparing some Sept. 11 victims to a Nazi.

University attorney Patrick O'Rourke argued Thursday that the law allowed the school to investigate former ethnic studies professor Ward Churchill's writings and fire him because of the disruption to the school. O'Rourke argued that Churchill's dismissal did not violate his First Amendment rights.

"So a professor burns a flag to protest the Vietnam War and out he goes? What does it depend on? how many people get outraged?" Justice Gregory Hobbs interrupted. "Do you take a head count or what?"

O'Rourke argued that in case involving a public employee: "Does the government interest outweigh the employees' interest? If it does, then it's not a First Amendment violation."

Churchill was at the hearing but declined to comment.

Churchill's attorney David Lane has argued that the investigation that uncovered academic misconduct that was the basis for Churchill's firing was in retaliation for an essay written just after Sept. 11 that came to light in February 2005. His work likened victims of the terrorist attacks to "little Eichmanns." Adolf Eichmann was a Nazi leader who helped orchestrate the Holocaust.

Lane described the public outcry as a "torchlight, pitchfork, parade," mob that included members of the Board of Regents clamoring for Churchill's ouster. The school eventually fired Churchill in 2007.

"Launching an investigation because you're angry at the message is not an excuse," Lane said, later quoting a regent. "'The purpose of this review is to determine whether we could find cause for dismissal.'"

The court is also considering whether the school's Board of Regents has immunity from lawsuits.

O'Rourke argued to skeptical justices that the regents enjoy absolute quasi-judicial immunity from lawsuits because they follow rules, regulations, and conduct hearings using judicial standards. Because of that, he argued that they act in a capacity similar to judges and prosecutors, who have such immunity.

Lane argued that the people, the regents themselves, are immune but the university is not.

The justices did not say when they might rule.

Churchill's essay prompted furious condemnation and calls for his dismissal. The university investigated whether the piece was protected under the First Amendment and found that it was.

But while the investigation was under way, other academics accused Churchill of plagiarism and fraud in scholarly writings, which led to his termination. None of the allegations were about the Sept. 11 essay.

After his termination, Churchill sued the university. A Denver District Court jury ruled that that the school unlawfully fired Churchill but awarded him only $1 in damages.

The decision whether to reinstate Churchill was left to the presiding judge. After a hearing, Denver District Judge Larry Naves ruled that the university did not have to rehire Churchill.

"How can the university take him back?" Hobbs said at Thursday's hearing.

Lane asked that the issue be sent back to a lower court for a trial.

Naves also ruled that the university's regents, who are elected, acted as a "quasi-judicial" panel that had immunity from the lawsuit. The Colorado Court of Appeals upheld Naves' ruling, and Churchill appealed to the state Supreme Court.

After the hearing, CU Chancellor Phil DiStefano said that Churchill had been given due process.

"I have confidence that this decision will be held up."

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