Update below: Earlier this week, we wrote about the Colorado Supreme Court's ruling against Ward Churchill, despite an earlier verdict in which a jury agreed CU-Boulder had violated the controversial ex-professor's rights by firing him.
Of course, the jury only awarded Churchill a dollar, but his lawyer said that's all the controversial former professor requested -- a claim that draws a sharp rebuke from CU's attorney in the case.
As you'll recall, Churchill was drawn into the spotlight after an essay in which he'd likened 9/11 victims to "little Eichmanns" came to light. Afterward, an investigation into Churchill was conducted and is said to have unearthed evidence of academic misconduct -- the reasons given by the university for his firing. In response, Churchill sued, claiming that charges of plagiarism and the like were being used as a pretext to punish him for the essay -- actions that thereby violated his right to free speech.
Churchill asked for reinstatement to CU, but despite the 2009 jury's verdict, his request wasn't granted. In response, his attorney, David Lane, demanded in a lawsuit that the university take him back. But Judge Larry Naves rejected his request, ruling that the CU Board of Regents, which had done the sacking, acted as a quasi-judicial body and was therefore immune from lawsuits.
After the Colorado Supreme Court agreed, Lane decried the justices' reasoning, particularly in comparison to the jury's findings.
"We had a jury that listened to chapter and verse of this case for a month -- and a jury of citizens said Ward Churchill got fired in retaliation for his free speech," he told Westword. "We only asked them for a dollar, and they gave us a dollar. But we wanted reinstatement from the court, and even though you had a jury saying, 'Ward Churchill is a victim of First Amendment discrimination,' a group of judges responded by saying, 'We're going to rig it so he loses. We are taking the jury's well-thought-out verdict after a month-long trial and we're throwing it in the trash -- and we're simply saying the regents are above the law."
But did Lane only ask for a dollar? Patrick O'Rourke says no, and presents documentation from the case to back up his assertion.
Continue to read the dollar debate, as well as David Lane's rebuttal and documents pertaining to the Ward Churchill case. In O'Rourke's argument before Judge Naves, he cites public statements Lane made regarding damages, including this line from a 2005 Denver Post article: "If you want me gone, it will be seven digits instead of six." He also shares a passage from Lane's own closing address to the jury, in which he says Churchill didn't ask for any money, but hints strongly that he deserves plenty of it:
But what -- what are damages in this case? Damages are justice, okay? You know the easy ones. He's out 110,000 a year on salary. That's easy.
But what is -- what is a man's reputation worth, to have been paraded through the national media, having been a distinguished scholar and an outstanding professor for 30 years, worked your way up to give a voice to people like dead Arabic kids in Iraq who don't have a voice in this country, like kids on the reservation, to inspire them to go to CU. What is a destroyed reputation worth? I don't know. It's worth of a hell of a lot more than a little bit of money.
But that's justice. And the Judge says, That's your job. Your job is to figure out the justice of that. I don't know. Is that $1.50? Is that $25 million? I don't know what that is. That's your call. 'Cause Ward Churchill did not get on the witness stand and ask you for a penny. But the jury instructions say, All you can do is give money, all right?
O'Rourke also points to jury instructions cited by Judge Naves in his final order. The relevant passage reads:
The jury was instructed that it could award damages for "any noneconomic losses or injuries that Plaintiff Churchill has had to the present time, including physical and mental pain and suffering, inconvenience, emotional distress, loss of reputation, and impairment of quality of life," as well as "any economic losses or injuries which plaintiff has had to the present time".... I gave this jury instruction because it was clear from the nature of the testimony that Professor Churchill (and other witnesses) provided, as well as the argument of his counsel and his pre-trial pleadings, that Professor Churchill was seeking compensation for lost wages, loss of reputation, and emotional distress. I further instructed the jury that "difficulty or uncertainty in the precise amount of any damages does not prevent you from deciding an amount.
O'Rourke points out that Lane didn't object to this jury instruction.
Do these documents prove that Lane is rewriting the case's history in advance of a possible appeal to the U.S. Supreme Court? People on both sides of the issue are likely to interpret them differently -- an indication that this case, which has been dragging on for years, is still capable of inflaming passions.
Update: To say that David Lane disagrees with Patrick O'Rourke's contentions, related above, would be to understate the case dramatically.
Here's an excerpt from Churchill's testimony shared by Lane:
Q. Okay. Are you sitting here asking this jury to give you money?
Q. What are you asking for?
A . Well, my job. I want restitution, basically, acknowledgment that the entire process by which I was terminated from the university was fraudulent.
A. While a number of these points can be debatable, the assertion that they are conclusive findings that I did engage in research misconduct on any of these points is itself false. And if it were not false, they would open it up to scholarly scrutiny. It can either be defended or not. It cannot be defended is the position that the university has taken, but they've acted on it anyway.
Lane also cites the judge during jury instructions:
The law further provides that a person may sue in this court for an award of money damages against anyone who, under color of any state law or custom, intentionally violates the plaintiff's rights under the Constitution of the United States.
"Obviously I was required to talk to the jury about money damages as that is the only thing the jury has the ability to give Churchill," Lane writes via e-mail in reference to the passage quoted above. However, he notes that his argument ended with the following:
And in the great American justice system, where all pain and all human misery translates into money, I'm still not going to give you a number, because that is justice, okay? What do you believe fairly compensates a man for the crushing of his identity? What fairly compensates somebody for destroying his reputation, absolutely dragging it through the mud on a national level, on an international level? They are all about sending messages. They want to send a message to students. They want to send a message to faculty. You need to tell students, you need to tell faculty, not only at the University of Colorado; you need to tell faculty from one end of this country to the other, and you need to do it in a big way. So there will be no mistake that they walk away from here saying, Well, we had to write Churchill a check for $5.72, so it's really a win for CU, you need to send a message to everyone that is listening, which is everyone, what the First Amendment means, what the First Amendment is worth, in terms of this man's reputation. And when somebody intentionally sets out to destroy it and 30 years of scholarship and inspiration and a voice for people who don't have a voice, send, send the world your comments about what the First Amendment is worth. Thank you.
He follows these quotes with the following statement, printed in bold: "At no time did I ask the jury for any dollar figure. Indeed, my prediction came true that the award of nominal damages has allowed CU to turn a Churchill win into a CU win."
Look below to read a document related to damages citations, as well as Judge Naves's order; the passage quoted above can be found in paragraph 73.
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More from our News archive: "Ward Churchill's Colorado Supreme Court loss shows judges protect the powerful, lawyer says."