The skewed perspective of a conservative Catholic employee-side employment lawyer living in the most exciting city in the Milky Way, Las Vegas, Nevada USA, who listens to a lot of really strange music and who, for some reason, lives and dies St. Louis Cardinal baseball


Should Ward Churchill be fired?

From the perspective of a plaintiff-side employment lawyer ...

University of Colorado professor Ward Churchill is
under fire for some despicable remarks he made calling the victims of 9-11 to "little Eichmanns" who deserved to die. Pleasant fellow. Churchill is a despicable leftie-fascist who should be shunned by human society. But should he be fired?

Not for the 9-11 remarks. These were made over three years ago. The University of Colorado is a public institution. It cannot retaliate against anyone -- faculty or student -- for exercising first amendment rights. And, as we all know, the first amendment is specifically meant to protect offensive and disgusting speech. Happy talk, inoffensive speech, and pleasant chatter need no protection. If the University were to fire Churchill for these three and a half year old comments, he would most certainly file a lawsuit allegedly deprivation of civil rights under 42 U.S.C. § 1983. And he would win. Big.

Well, you ask, couldn't he be fired because his remarks could be characterized as "hate speech"? Assuming that there is something legally cognizable as "hate speech," hateful speech would not ncessarily equate to hate speech.

Quite ironic that Churchill's free speech is worthy of protection given that, like all people living on the frontier between fascism and communism, he is so militantly
anti-free speech. According to Rocky Mountain News columnist Paul Campos (which I found via the always essential RealClearPolitics site), Churchill once led a march to shut down a Columbus Day parade. Free speech for me, not for thee, indeed!

NOTE: Interesting side issue. As a department chairman at a public university, did Churchill engage in state action when he shut down the Columbus Day parade and infringed on the free speech rights of the Columbus Day celebrants, who were probably disproportionally Italian-American and, as we all know, there is a Supreme Court decision (citation to be inserted) finding Italian heritage to be a racial classification. State action to unfairly deny a racial group free speech rights? Sounds like someone may have had a 42 U.S.C. § 1983 lawsuit against Churchill too.

So can the University of Colorado fire Churchill? Not for his speech, but perhaps for
faking his Native American creds. Resume fraud? And, if not resume fraud, them how about plain old fraud? He apparently lied about being a member of a certain ethnic group when he was chairman of the Ethnic Studies department in Boulder. (The website still lists him as chair.) That goes to his credibility to continue as a faculty member at a decently respected flagship university.

Given the whole ethnicity issue, and the fact that race is a protected class, which means that not being in the racial group is also a protected class, it is still dicey to fire him over his lie about being Native American. Dicey, but much stronger grounds than having a state actor fire him for exercising constitutionally-protected free speech rights.

(And I haven't even considered whether the Colorado state constitution would give even greater protections to free speech rights, as some state constitutions do. That's another post.)

Addendum: According to Belmont Club, the University of Colorado is contemplating canning Churchill only for the 9-11 speech. In that case, he'll walk. And if they fire him over speech, he'll sue. And win.
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