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Author: Alan Chen

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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. Read More

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Does the Roberts Court Have a First Amendment Agenda?

Commentators sometimes study the Supreme Court’s certiorari grants over short periods to discern patterns that suggest an agenda. There are different types of agendas. Some Justices may have a substantive agenda to expand, contract, or change the approach to an area of constitutional doctrine or other federal law. A different agenda might be to clarify or further develop an area of law, but not have a particular direction in mind. That is, the goal simply may be clarity.

Sometimes an agenda may be the product of external events, such as the Court’s foray into limits on executive powers growing out of government actions to address terrorist threats after 9/11 (though, as Fred Schauer argues, the Court’s approach to case selection does not always mirror the nation’s governance priorities). At other times, it might occur internally. It would not be wild to suggest that a majority of the Rehnquist Court consciously wanted to alter the landscape of federalism by reviewing several Commerce Clause and state sovereignty cases over the span of just a few terms.

Recently, there is evidence that the Roberts Court has some sort of First Amendment agenda, but it’s not at all clear what that agenda is. Three times in the last two terms, the Supreme Court has granted certiorari to review a First Amendment case in which the government has argued for a new exception to the presumptive rule against government regulation of speech based on its content. Last term, the Court heard United States v. Stevens, 130 S. Ct. 1477 (2010), a challenge to a conviction under a federal law prohibiting the knowing creation, sale, or possession of a depiction of animal cruelty for commercial gain. This term, the Court has already heard argument in Snyder v. Phelps, a case arguing for an exception for emotionally harmful protests outside of funerals, and Schwarzenegger v. Entertainment Merchants Association, a case suggesting a possible exception for regulation of the sale of extremely violent video games to minors.

Though this is an oversimplification, it is generally still valid to describe basic First Amendment analysis as establishing a presumption against government regulation based on the content of the speech (content can include viewpoint, subject matter, and arguably other categories). Exceptions to the general presumption exist for government regulation of “fighting words,” obscenity, child pornography, and threats, as well as altered analytical frameworks for fraud in commercial speech, libel against public figures, and incitement to imminent unlawful conduct. There are continual attempts by government to expand or push the edge on these categories of unprotected or less protected speech, but Courts with vastly different ideological compositions typically resist efforts to carve out exceptions.  As observe in the Third Circuit’s opinion in Stevens, it has been over 25 years since the Court has recognized a new categorical exception to the content discrimination rule.

Given that resistance, the Court’s decisions to review Stevens, Snyder, and Entertainment Merchants in such a short time frame are certainly noteworthy. Read More

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Higher Education Accreditation and Brain Drain

For the past two years, I’ve served on the steering committee and a subcommittee preparing for the University of Denver’s re-accreditation by the Higher Learning Commission, the regional accreditation body for post-secondary education institutions in the North Central region of the United States. The HLC site team is visiting our campus this week, and many of us involved will need to attend numerous meetings during its visit. And, no doubt, our duties are not yet at an end, as surely there will be issues after the initial HLC report to which the university will need to respond. About a month ago, I sat in a meeting to begin planning for my law school’s self-study for its ABA re-accreditation, with our site visit scheduled for spring 2012. Other members of my law school’s administration and staff have recently completed the chore of responding to the annual ABA questionnaire. Feeling a lot like a hamster in a wheel, I have been thinking a lot about the impact that various accreditation processes have on the human capital of higher education faculties.

In my view, the opportunity costs of the collective human resources that are routinely expended by higher education institutions on accreditation compliance border on the unconscionable. The total personnel hours alone are enormous, but the costs are qualitative as well as quantitative. Universities and professional schools have a strong incentive to assign the vast data collection and compilation and report drafting to faculty and staff whom they trust to ensure that their self-studies are done thoroughly and professionally. In my experience, those assigned to accreditation committees are likely to include many of the institution’s more prolific scholars and best teachers. Thus, two of the most important things that we are evaluated for – teaching students and generating scholarship – inevitably suffer because of the time drawn away from those activities to compile the self-study. One can imagine someone like David Lodge parodying the conversation between a site inspector and a university representative about the school’s lack of scholarly production because the faculty has been immersed in the self-study effort.

This brain drain is not indigenous to the school being inspected. The same could be said about those from other institutions who serve on site-inspection teams (also likely to be successful teacher, scholars, and administrators), who are likewise taken from the things they are the best at so they may evaluate others. Of course, there are dozens of other things that detract from teaching and scholarship, not the least of which is committee service in general (and don’t even get me started on that brain drain), but none quite as ironic as the time lost to accreditation.

To be sure, accreditation by outside bodies serves important purposes

Read More

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Questioning the Value of Omnibus Academic Conferences

As part of my current job, I try to track and distribute information about conferences and workshops that will interest my colleagues and provide good opportunities for them to obtain critical feedback on their scholarly work, as well as make connections with other scholars in their fields. Perhaps because I pay more attention to all types of conferences now (or perhaps because there truly are more of them), I sense a proliferation of smaller legal scholarship workshops focusing on particular subject matters or disciplines, bringing together scholars from schools in a specific region, or fostering development of junior faculty (of course, there are also combinations of these). Much of the anecdotal feedback I get from my colleagues suggests that these smaller workshops are extraordinarily helpful to participants because of the type and depth of feedback they get on their papers. The size of these gatherings also allows for richer opportunities to engage in informal discussions with colleagues and learn about each other’s work.

All of this brings me to the larger question I want to pose. What is the purpose of the annual January AALS meeting? Don’t get me wrong. I love New Orleans and San Francisco and catching up with friends and colleagues from other schools as much as anyone. But at this point, the conference itself seems like a bit of a dinosaur. If the principal justification for the meeting is intellectual enrichment, it’s pretty inefficient. Hundreds of papers are presented, the vast majority of them beyond any single professor’s areas of interest or expertise. And personally, with some important exceptions, I often have been disappointed with the papers presented at the annual meeting compared to the papers I have heard at specialized conferences (including specialized AALS conferences). One could make the case for the general meeting as an opportunity to hear work in fields beyond our specialty areas, but how many of us actually attend panels in fields completely unrelated to our work? I’m sure some administrative work gets done at AALS, but probably nothing that couldn’t be accomplished by a conference call.

Some academic disciplines combine their annual meetings with their hiring conferences. For example, the Modern Language Association has a long tradition of facilitating faculty job interviews at its annual meeting. That approach makes a little more sense because faculties from most schools are gathered in one place to interview candidates, anyway. But the AALS separated out its Faculty Recruitment Conference from the general meeting many years ago, so that rationale has disappeared.

I approach my thinking about the AALS meeting from a resources standpoint as well. At this time of year (as the early bird registration deadline approaches), I receive lots of faculty requests for funding to attend the meeting. Our school spends a disproportionate percentage of its travel budget sending faculty to AALS. In tight fiscal times, it seems useful to contemplate whether that is a good use of funds, or whether that money would be better spent sending faculty to the smaller specialty or regional conferences discussed above. Or, might we decide after considering the heretical idea of scrapping the annual meeting that the AALS’s winter fest is just too big to fail?