12-03-2009, 01:58 AM
http://chronicle.com/daily/2009/03/13370n.htm
> Wednesday, March 11, 2009
> Ward Churchill's Day in Court Arrives
> By PETER SCHMIDT
>
> Denver
>
> The trial in Ward Churchill?s lawsuit against the
> University of Colorado
> got under way here on Tuesday with lawyers for the opposing
> sides
> painting starkly different pictures of both the
> controversial
> ethnic-studies professor and the circumstances surrounding
> his dismissal
> by the university in 2007.
cut
> Wednesday, March 11, 2009
> Ward Churchill's Day in Court Arrives
> By PETER SCHMIDT
>
> Denver
>
> The trial in Ward Churchill?s lawsuit against the
> University of Colorado
> got under way here on Tuesday with lawyers for the opposing
> sides
> painting starkly different pictures of both the
> controversial
> ethnic-studies professor and the circumstances surrounding
> his dismissal
> by the university in 2007.
cut
> Yes, Mr. O?Rourke said, Philip P. DiStefano, who was then
> the interim
> chancellor at Boulder, launched his initial investigation
> of Mr.
> Churchill to determine if his essay had overstepped the
> bounds of his
> speech rights as a public employee. But Mr. DiStefano had
> fairly quickly
> concluded that the essay was protected speech under the
> First Amendment.
>
> The university started a second investigation of Mr.
> Churchill,
> examining his scholarship, because in the course of the
> first inquiry,
> several scholars in his area of expertise had raised
> concerns about his
> work, Mr. O'Rourke said. The university is obliged to
> investigate such
> allegations, he said, because people in academe build on
> one another?s
> work, and scholarly misconduct ?tears down what
> universities stand for.?
>
> In a brief submitted to the court, the university argues
> that a ruling
> holding the investigation of Mr. Churchill to be a First
> Amendment
> violation ?would deny public employers the ability to
> make informed
> decisions.?
>
> The brief cites a 2006 U.S. District Court decision
> involving one of Mr.
> Churchill?s own supporters, a Colorado public employee
> who had claimed
> he was subject to a workplace investigation after
> expressing support for
> the controversial professor on a radio program. The judge
> in that case
> had reviewed applicable legal precedents and concluded that
> the courts
> had never viewed an investigation of an employee as, in
> itself, an act
> that can be viewed as retaliatory.
>
> In respect to Mr. Churchill?s dismissal, the
> university?s brief argues
> that the law requires him to prove that his
> constitutionally protected
> speech played a substantial role in the university?s
> decision, and not
> simply that the chain of events leading to his dismissal
> was triggered
> by his remarks.
>
> Moreover, the brief argues, Mr. Churchill cannot prove
> retaliation under
> the law by showing that some of the regents acted against
> him out of
> retaliation, but instead must show that a majority of the
> board had such
> an unlawful retaliatory motive. ?Because the Board of
> Regents acts as a
> whole, and no single regent has the ability to act on
> behalf of the
> board, Professor Churchill cannot establish causation,?
> the brief says.
>
> In addition, the brief argues, the courts?out of a desire
> to prevent
> employees from manufacturing constitutional arguments to
> thwart their
> managers?have called for defendants like the university
> to prevail if
> they can show they would have taken a challenged action
> anyway. The
> court, the brief says, must side with the university if it
> can show it
> would have fired Mr. Churchill for alleged scholarly
> misconduct in the
> absence of his controversial remarks about September 11.
cut> the interim
> chancellor at Boulder, launched his initial investigation
> of Mr.
> Churchill to determine if his essay had overstepped the
> bounds of his
> speech rights as a public employee. But Mr. DiStefano had
> fairly quickly
> concluded that the essay was protected speech under the
> First Amendment.
>
> The university started a second investigation of Mr.
> Churchill,
> examining his scholarship, because in the course of the
> first inquiry,
> several scholars in his area of expertise had raised
> concerns about his
> work, Mr. O'Rourke said. The university is obliged to
> investigate such
> allegations, he said, because people in academe build on
> one another?s
> work, and scholarly misconduct ?tears down what
> universities stand for.?
>
> In a brief submitted to the court, the university argues
> that a ruling
> holding the investigation of Mr. Churchill to be a First
> Amendment
> violation ?would deny public employers the ability to
> make informed
> decisions.?
>
> The brief cites a 2006 U.S. District Court decision
> involving one of Mr.
> Churchill?s own supporters, a Colorado public employee
> who had claimed
> he was subject to a workplace investigation after
> expressing support for
> the controversial professor on a radio program. The judge
> in that case
> had reviewed applicable legal precedents and concluded that
> the courts
> had never viewed an investigation of an employee as, in
> itself, an act
> that can be viewed as retaliatory.
>
> In respect to Mr. Churchill?s dismissal, the
> university?s brief argues
> that the law requires him to prove that his
> constitutionally protected
> speech played a substantial role in the university?s
> decision, and not
> simply that the chain of events leading to his dismissal
> was triggered
> by his remarks.
>
> Moreover, the brief argues, Mr. Churchill cannot prove
> retaliation under
> the law by showing that some of the regents acted against
> him out of
> retaliation, but instead must show that a majority of the
> board had such
> an unlawful retaliatory motive. ?Because the Board of
> Regents acts as a
> whole, and no single regent has the ability to act on
> behalf of the
> board, Professor Churchill cannot establish causation,?
> the brief says.
>
> In addition, the brief argues, the courts?out of a desire
> to prevent
> employees from manufacturing constitutional arguments to
> thwart their
> managers?have called for defendants like the university
> to prevail if
> they can show they would have taken a challenged action
> anyway. The
> court, the brief says, must side with the university if it
> can show it
> would have fired Mr. Churchill for alleged scholarly
> misconduct in the
> absence of his controversial remarks about September 11.