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New Court Opinion Addresses Employment Decision in Higher Education

A recent opinion from a Colorado lawsuit demonstrates the deference provided to institutions of higher education in the context of employment decisions.

Ward Churchill was a tenured professor at the University of Colorado. He achieved notoriety following the publication of an article in which he made inflammatory statements about the victims of the September 11 terrorist attacks. Following the public uproar over the statements, the University’s Board of Regents launched an investigation into Churchill’s academic works. The investigation revealed what the Regents believed to be serious academic misconduct. After a series of administrative steps, the Regents decided they had sufficient cause to fire Churchill. Churchill sued the Regents alleging that the real reason for his termination was the 9/11 article and that therefore, both the investigation into his academic works and his termination were violations of his First Amendment right of free speech.

The case ultimately made it to the Colorado Supreme Court which rendered its decision on September 10, 2012. The decision upheld the actions of the Board of Regents and contained significant holdings regarding institutions of higher education. First, the Court determined that when the regents of a public university take action—as here in terminating the employment of a tenured professor—they are acting similar to judges. Judges cannot be sued for the decisions they make in the courtroom, and now it is clear that regents cannot be sued for their quasi-judicial actions. As such, Churchill’s wrongful termination claim was dismissed.

Second, the Court determined that in the realm of conducting investigations, the actions of regents potentially could be the subject of a claim like Churchill’s claim for bad faith investigation, but only if it can be shown that the regents knew or should have known the investigation violated an established constitutional right. If such a showing is not made, the regents are immune from the claim. Churchill could not make such a showing and therefore the Court found that the bad faith investigation claim could not proceed.