Last November, when the Colorado Court of Appeals rejected ex-CU prof Ward Churchill's bid to get his old job back, attorney David Lane admitted that "the odds of either the Colorado Supreme Court or the U.S. Supreme Court looking at the case are slim." But he and Churchill have beaten those odds like a drum. Not only will the Supremes take on the matter, but they've agreed to consider all of Lane's arguments about why previous rulings were wrong.
As you'll recall, CU looked into Churchill's scholarship following publicity surrounding an essay he wrote post-9/11 in which he compared victims of the terrorist attacks to "little Eichmanns" -- and after finding areas of concern, the university's regents fired him. Churchill responded by suing the school for violating his First Amendment rights in retaliation for his essay, and he won -- the jury awarded him one dollar in damages. But Judge Larry Naves slapped down his request for reinstatement, ruling that CU had the right to give him the heave-ho -- and the Colorado Court of Appeals agreed.
After this defeat, Lane appealed to the Colorado Supreme Court, with his filing focusing on three questions:
1) Can an investigation into his writings and speeches if motivated by retaliation for First Amendment protected speech (Churchill's 9/11 essay) amount to a free-standing First Amendment violation?
2) Should the Regents have been given quasi-judicial immunity from suit?
3) Can equitable relief (Churchill gets his job back) be given even if the Regents got quasi-judicial immunity from suit?
Lane hoped one of these topics would stick -- and he says he's floored that all of them made the cut.
"They're the only issues we asked the court to take a look at, and they've agreed to hear all of them, which is extremely unusual," he maintains. "First of all, granting cert is really unusual. But if they do grant cert, they'll usually do it on one or maybe two issues. Three is really uncommon."
He stresses that the case is about more than Churchill gaining access to CU classrooms again. "If the Supreme Court rules in our favor, then tenured professors will be able to have a remedy when the regents fire them in violation of the First Amendment," he allows. "As it stands now, based on the Court of Appeals' decision, if a tenured professor gets fired, courts will turn a deaf ear to them -- and that's a critical issue in academia. So this is one of the biggest First Amendment cases that academia can possibly face."
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Lane anticipates that oral arguments in the matter will take place around the first of the year, with a decision likely coming in the spring of 2012. As a result, "we're not done by a long shot," he says. "Everybody who has buried Ward Churchill as old news needs to get back in the game. Because the Colorado Supreme Court is hearing this case, and frankly, we should win.
"This has nothing to do with 9/11," he adds. "This has to do with the First Amendment. And the First Amendment is always contemporary."
More from our Follow That Story archive: "Ward Churchill case: CU firing should be nixed in name of academic freedom, says David Lane."