Thursday, June 11, 2009

Colorado U. to Judge: Give Ward Churchill Nothing

Churchill: "I'm going to ask the judge for a million dollars!"
" ... In the university's brief, O'Rourke wrote that the jury's verdict in no way absolved Churchill of academic fraud charges. ... "

School says ousted prof deserves neither reinstatement nor money

By John Aguilar
May 21, 2009

DENVER — Former ethnic studies professor Ward Churchill not only shouldn't get his job back, but doesn't deserves any financial compensation as a result of his termination by the school two years ago, the University of Colorado contends in a legal brief filed in Denver District Court.

In the 31-page document opposing Churchill's motion for reinstatement, which was made available Thursday, CU attorney Patrick O'Rourke argued that a Denver jury's decision last month to award the former professor $1 was a clear indication it felt Churchill had not suffered damages despite its ruling he was removed unlawfully from his teaching post.

"The jury determined that Professor Churchill's constitutional injury was nominal, and a nominal injury should not serve as a basis for reinstatement or any other equitable relief," O'Rourke wrote. "The Court should not contravene the jury's implied finding that Professor Churchill suffered no actual damages."

Churchill, 61, was fired by CU in 2007 after the school found he had repeatedly committed academic fraud. The former professor sued, saying the school illegally terminated him because he had written a controversial essay in 2001 in which he compared victims of the Sept. 11 terrorist attacks to Nazi operatives -- by calling them "little Eichmanns."

A jury of six decided on April 2 that Churchill was wrongly fired for exercising his First Amendment rights but awarded him only $1 in damages.

Chief Denver District Judge Larry Naves will decide whether Churchill gets his job back at CU, receives a monetary settlement, or gets nothing at all.

A date for a reinstatement hearing will likely be announced next week.

David Lane, Churchill's lead lawyer, said Thursday that the university's response "was pathetic."

"I think it's pathetic that they believe they can break the law and fire someone based on that person being controversial and continue to reap the benefits of their unlawful conduct by not letting him come back," he said.

Churchill has 10 days to reply to CU's filing.

In the university's brief, O'Rourke wrote that the jury's verdict in no way absolved Churchill of academic fraud charges.

If it believed that Churchill had not engaged in misconduct, the attorney wrote, the jury would have compensated him for damage to his reputation.

"Instead, the jury did not award Professor Churchill a single penny for reputational injury or emotional distress, which can only be read as the jurors' unanimous conclusion that Professor Churchill destroyed his own reputation through his academic misconduct," O'Rourke said in the brief.

And Churchill's claim that he never asked for money is belied by the fact that his attorney, David Lane, repeatedly told the jury during closing arguments that the best way to send CU a message and provide justice was to award his client monetary damages, O'Rourke wrote.

He warned the court that reinstating Churchill on the Boulder campus would invite future litigation and ill will between both parties, especially given the fact that many of Churchill's former colleagues believe he engaged in academic fraud.

He also wrote that allowing Churchill back into a CU classroom would mean he could operate without fear of being held accountable for his behavior and scholarship.

"Reinstatement under these circumstances places the university in the no-win position of either facing another lawsuit or effectively immunizing Professor Churchill from complying with the standards of professional scholarship," he stated.

But if the judge feels Churchill deserves some kind of financial award, O'Rourke wrote, it should not be a "windfall."

He further contends the former professor has not "seriously pursued any efforts to gain comparable employment" since his July 2007 termination and thus does not deserve "front pay," which is designed to compensate for lost income.

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