Phi Beta Cons

The Right take on higher education.

Reading the Ward Churchill Opinion


Ward Churchill’s judicial roller coaster continues. After the dizzying high of a jury verdict in his favor, he’s plunging back down again with news that the judge has vacated the verdict and ruled for the university. And what a strange ruling it is.

The first part of the opinion is nothing more than a straightforward analysis of judicial immunity. Essentially, the judge finds that the regents acted as judicial officers when they considered the charges against Churchill and were consequently immune from all but a declaratory judgment action or action for abuse of discretion under Colorado law. Since Churchill didn’t state a declaratory judgment claim or seek relief under relevant Colorado law, Churchill couldn’t prevail.

That part of the opinion breaks no new ground. Judicial (more precisely, quasi-judicial) immunity is frequently an issue in academic-misconduct cases, and the judge at least appeared to track 10th Circuit case law quite closely in rendering his opinion. The second part of the opinion, however, is puzzling, to say the least.

Even after vacating the jury’s verdict, the judge engages in what seems to be a superfluous discussion of Churchill’s request for reinstatement (after all, if the jury liability finding is vacated, there is no real basis for equitable relief). In this discussion, he misunderstands the role of nominal damages in constitutional cases, conflates damage awards with liability determinations, grants a staggering amount of discretion to university officials who terminate troublesome employees, and essentially uses Churchill’s protected speech as a pretext for justifying the university’s adverse actions. The message the judge sends to faculty is clear: Get along with your colleagues — or else.

Fortunately for faculty everywhere, however, the second half of the judge’s opinion should have no lasting impact. It’s dicta, pure and simple, and dicta from a state trial court at that. Federal courts (where most constitutional battles are fought) tend to follow federal precedent.  

Ward Churchill will no doubt appeal, so the story of this case is far from over. And I predict that the appeal will stand or fall on the immunity issue, not on the trial court’s curious extraneous commentary.


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