Ward Churchill and the Future of Public Employee Speech Retaliation Litigation

The Colorado Court of Appeals released its decision in Ward Churchill’s appeal in his First Amendment retaliation case against the University of Colorado last Wednesday (which must be one of the slowest news days of the year). A few years ago, the University terminated Churchill, a tenured professor in the University’s Department of Ethnic Studies, after concluding that he had engaged in several incidents of research misconduct, including evidentiary fabrication, plagiarism, and falsification. These conclusions were reached after several years of internal investigative and adjudicative proceedings to examine allegations of Churchill’s research misconduct. As most everyone is aware, the University did not launch its investigation until after a public outcry arose from controversial statements in an essay that Churchill wrote comparing the victims of the 9/11 terrorist attacks to “little Eichmanns,” in reference to the notorious Nazi war criminal. The perhaps forgotten larger point of the essay was an argument that the 9/11 attacks were provoked by American foreign policy actions.

Churchill sued the University, arguing that both the investigation and the termination violated his free speech rights under the First Amendment because they were undertaken in retaliation for his protected expression on matters of public concern. At trial, after the evidence was submitted, the University moved for a directed verdict on the claim that the investigation (as distinguished from the termination) was an adverse employment action that constituted unconstitutional retaliation, and the trial court agreed. The termination claim went to the jury, which held for Churchill, concluding that the University’s decision to fire him was substantially motivated by his protected speech. The jury also rejected the University’s defense under Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274 (1977), finding that the University had not shown by a preponderance of the evidence that it would have fired Churchill for reasons other than his speech. The jury then awarded Churchill only $1 for his economic loss.

In an unusual move, the parties had agreed prior to trial that the University would waive its sovereign immunity defense in exchange for Churchill’s agreement that the University could assert any defenses that its officials or employees could have raised and that those defenses could be presented after the jury’s verdict. Pursuant to this agreement, the University submitted post-verdict motions asserting that despite the jury’s ruling, the University was entitled to quasi-judicial immunity for its officials’ actions. Churchill filed a motion asking that he be reinstated to his faculty position based on the jury’s finding of unconstitutional termination. The trial court ruled in favor of the University on both claims and entered judgment for the defense, from which Churchill appealed.

The state court of appeals affirmed the trial court’s verdict. The court first held that the University was entitled to quasi-judicial immunity from both the damages award and prospective injunctive relief on the retaliatory termination claim. It applied the functional approach to judicial immunity prescribed by the U.S. Supreme Court and determined that the nature and process of the University’s research misconduct investigation and appeal were sufficiently analogous to the traditional judicial function that the process should be protected by absolute immunity. The court next held that the investigation into Churchill’s misconduct was not an adverse employment action actionable under the First Amendment. While conceding that the U.S. Supreme Court has not directly addressed the question of whether and when investigatory actions may rise to the level of First Amendment retaliation, it held that an investigation itself was not adverse action sufficient to violate the Constitution.

A number of troubling implications for public employee litigation emerge from the state appellate court’s decision. First, though the parties agreed to substitute the University for individual defendants, the court’s extension of official immunity to the State seems out of place given that the rationales for individual immunity are substantially different from the justifications for sovereign immunity. One might make a “greater includes the lesser” argument that the University need not have given up its sovereign immunity, so the application of individual immunity still put Churchill in a better position than he would have been in had they not agreed to this trade off. But that would not be true. Had the parties not agreed to this exchange, Churchill could have sued the individual decision makers in their personal capacity, and the court would likely have granted them judicial immunity just it did for the University. But Churchill would have been able to avoid sovereign immunity on his reinstatement claim under Ex Parte Young by suing the officials responsible for his termination for prospective injunctive relief. As the case played out, the court extended the official immunity ruling to Churchill’s claim for injunctive relief as well as damages, thus making him worse off.

Second, the functional approach is employed precisely because the judicial immunity doctrine is driven not as much by concerns for individuals, but by the policy of protecting the integrity of the judicial process. As the Court stated in Butz v. Economou, 438 U.S. 478 (1978):

“[T]he safeguards built into the judicial process tend to reduce the need for private damages actions as a means of controlling unconstitutional conduct. The insulation of the judge from political influence, the importance of precedent in resolving controversies, the adversary nature of the process, and the correctability of error on appeal are just a few of the many checks on malicious action by judges. Advocates are restrained not only by their professional obligations, but by the knowledge that their assertions will be contested by their adversaries in open court. Jurors are carefully screened to remove all possibility of bias. Witnesses are, of course, subject to the rigors of cross-examination and the penalty of perjury. Because these features of the judicial process tend to enhance the reliability of information and the impartiality of the decisionmaking process, there is a less pressing need for individual suits to correct constitutional error.”

Most of these features are not present in internal adjudications of employment decisions. Indeed, mechanisms for termination of public employees typically are a far cry from the traditional types of judicial proceedings that the Supreme Court’s immunity cases are concerned with protecting.

In addition, if public employers can evade liability for unconstitutional employment decisions (whether based on race, gender, religion, speech, or other protected categories) by allocating the decision making to quasi-judicial bodies, the law will create compelling institutional incentives to restructure employment decisions in just that way. If courts extend that immunity to injunctive relief as well as damages claims, relief will be difficult to obtain. To be sure, this raises a distinct constitutional concern, as there may be a tension between the barrier presented by quasi-judicial immunity and the requirement that public employers comply with procedural due process, which requires some sort of opportunity for employees to contest actions taken against them. Those procedures are often provided in the form of quasi-judicial bodies.

The adverse employment action holding is equally troubling. Pretext is commonly an issue in public employee retaliation cases. Employers routinely assert in the face of evidence of unconstitutional motive that the adverse employment action was the result of legitimate employment considerations. If an employer wants to terminate an employee for illegitimate reasons, it can launch a full throttle investigation until it finds a justification to terminate or take other adverse action against that employee. Mt. Healthy already provides a defense to employers who can show that they would have taken the same course of action even in the absence of the unconstitutional motive. But how does the law sort out causation issues when the investigation itself is the adverse action, and ultimately uncovers some previously undiscovered fact that leads to a post-hoc justification for termination? Even in the absence of a finding of cause for termination, there may be circumstances in which the act of investigation itself could impose as negative consequences to the terms and conditions of employment as informal reprimands and transfers, which have been held to be sufficiently adverse to be actionable under the First Amendment.

This may well not be the last chapter of the Churchill litigation (though the next two stages of review are both discretionary appeals). But it would certainly not be surprising to see public employers overhaul their employment decision making structures in response to this most recent decision.

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