Thursday, July 26, 2007

The Churchill Saga and Pickering Rights

Churchillward How's this for a brilliant Title VII fact pattern for an Employment Discrimination Law exam? (Stop salivating my summer employment discrimination students, this won't be on the exam (but at least I know you read the blog like I told you to!)).  In any event, it actually will be a First Amendment retaliation question, but a similar analysis to mixed motive cases under Title VII.

In any event, here's the update on the Ward Churchill saga from the Chronicle of Higher Education (subscription required):

Nearly six years after Ward Churchill compared some American victims of terrorism to Nazi bureaucrats, the Board of Regents of the University of Colorado voted Tuesday night to fire him. But the controversial ethnic-studies professor said he was "ready to roll" into the next stage of his struggle with the university: a court of law.

According to university administrators, it was findings that Mr. Churchill had committed research misconduct -- and not the notoriety of Mr. Churchill's opinions -- that fueled the decision.

So Churchill must jump through the following hoops to succeed on a First Amendment Pickering claim: (1) that he was not speaking pursuant to official duties (easy); (2) that he was speaking on a matter of public concern (pretty obvious); (3) that his rights to free speech outweigh the University's right to run an efficient workplace (not so obvious); (4) that his speech was the motivating and substantial reason for his termination (will depend on all the evidence); and (5) Colorado would not have made the same decision even in the absence of the protected speech (only if Churchill can show that he did not engage in research misconduct that amounted to cause for his termination).

In talking about this case with Brian Leiter (Texas), he points out that Colorado has always claimed that this case is about academic misconduct and not speech.  Does that mean step 5 will be the only issue in question?

First, I don’t think legally it would matter what prior position Colorado has been taking publicly (I mean they didn’t waive the argument since they haven’t filed an Answer), but maybe it would not be a good prudential strategy from the standpoint of public relations and because it might undermine their main argument that they agree that the speech was protected, but the firing had nothing to do with speech.

In any event, I would expect the university to use every argument at their disposal, including that Garcetti  v. Ceballos means that since this was speech pursuant to official duties there is no First Amendment protection and, even if there is a First Amendment right, that that right under the Pickering balance (Step 3 above) is substantially outweighed by the university’s interest in maintaining an efficient public service without disruption of working relationships, the university's image, and the values it seeks to embrace.

In short, litigation strategy is often different than public relations strategy. Overall, though, my point is that public employees have a steep hill to climb in these First Amendment public employee cases because of all the hoops that need to be jumped through.  Those not familiar with public employee terrain might be surprised how much different this framework is than for citizen claims under the First Amendment.


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On the fifth point, I presume you meant that Colorado would NOT have made the same decision absent the protected speech. That seems to me to be the biggest issue but also (if the official reports of his plagiarism are accurate) pretty easy. If anything, Colorado would have been MORE likely to fire a similar plagiarist who had not made such statements.

The third point, disruption of the workplace, has some interesting aspects. If the university somewhere bloviates (as most universities do before they punish students and faculty for expressing unpopular views) about how it fosters debate, challenges presumptions, seeks new answers, etc., then the sort of "disruption" Churchill's speech caused would seem to be expected and even invited.

Posted by: Dennis Nolan | Jul 26, 2007 7:23:48 AM

Since Churchill works at a public university and had tenure he must be entitled to some type of administrative due process hearing. No mention has been made of that in the media, but as I mentioned on my blog, for those interested you need to watch for that administrative decision. Issues of collateral estoppel and res judicata may arise even before you reach the First Amendment issue.
With respect to the First Amendment, I agree that Churchill is going to have difficulty because of the disruption his otherwise protected speech has caused. See, Melzer v. Board of Education, 336 F. 3d 185 (2d Cir. 2003), cert, denied, 540 U.S. 1183 (2004)(Teacher who associated with North American Man Boy Association losses First Amendment protection because of disruption to school. Speech concerned matter of public concern (advocating lowering age of consent laws). By the way, Melzer case is a great case for class and I am surprised more text books do not reproduce it. I use it in labor law as well as Education Law.
Mitch Rubinstein

Posted by: Mitchell Rubinstein | Jul 26, 2007 1:15:33 PM

Regarding Mr. Nolan's first point: the University will be hard-pressed to show that it, or any other university, ordinarily fires tenured faculty for the kinds of offenses that are actually documented in the investigative report. The punishment is also disproportionate to the offenses (even taking the report's claims at face value, which Churchill surely will not), which I imagine creates a particular wedge for the First Amendment argument: not only was he investigated because of his speech, but, even if he was guilty of some research misconduct, he was punished disproportionately for that, again because of his political speech.

Posted by: Brian Leiter | Jul 27, 2007 11:31:31 AM

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