That seems to be the upshot of this extraordinary opinion by district judge Larry Naves in the Ward Churchill case, about which more in a moment.

To recap:  Bill O'Reilly and other far right pundits called attention several years ago to Churchill's offensive comparison of the 9/11 victims to Adolf Eichmann, made in the context of an article that was obviously protected by the First Amendment and by any morally sound principle of academic freedom.  Political leaders and even one Colorado law professor called for him to be fired for his political speech, but university leaders took the prudent position that this would be illegal.  Instead, the University of Colorado commenced an investigation of allegations of academic misconduct against Professor Churchill, which resulted in a lengthy, but rather underwhelming, report that found one actual instance of plagiarism and found that he had cited to articles he had ghost-written, and went on at some length disputing his footnoting practices in other articles.  (The one plagiarism charge against Churchill that actually stuck would hardly have distinguished him among Harvard Law School plagiarists, none of whom were fired [or should have been fired for their offenses].)  Various university committees were divided on the appropriate punishment for his academic misconduct (termination was the minority view), but in the end, the university regents (with one dissenter) voted to terminate his employment.

Since Churchill's work, scholarly and pedagogical, had been reviewed many times during his tenure at Colorado, and he had received promotions, salary increases, and even awards from the university, Churchill took the prima facie plausible position that he was being punished for his constitutinoally protected speech.  At the conclusion of trial, a jury agreed, and found that Churchill was, indeed, fired for his offensive speech, and would not have been fired if it had not been for that speech.  However, the jury gave only one dollar in damages, for reasons that are still opaque.   Churchill asked the court for reinstatement, a possible, but certainly not required, remedy in this context (monetary damages are, I am told by colleagues, the more common remedy in wrongful discharge cases like this).

That brings us to the present, and the decision of Judge Naves.  There is a decent summary account of the Naves decision here and an even better one here (though the latter appears not to realize the possibly catastrophic implications of the decision).  Judge Naves vacates (par. 69) the jury decision (so much for the First Amendment violation!) on the grounds that the Regents, in deciding to fire Churchill, enjoy a "quasi-judicial immunity" from suit!  The key paragraphs of the opinion are 22-49.  Although judges, prosecutors, jurors, and administrative hearing officers are the usual beneficiaries of judicial and quasi-judicial immunity, the court is able to identify a handful of cases similar to this one.  The implication seems to be that, as long as the Regents have in place procedural safeguards, they can fire faculty members for their offensive speech, though of course, they can't give that as the reason!  (But remember:  the jury here found that was the real reason, though that finding was vacated.)  And the fired faculty member only has a remedy if they can show an "abuse of discretion" by the Regents given their quasi-judicial function (par. 47).

Wow.

Signed thoughts from readers with knowledge of the legal issues raised by the finding of quasi-judicial immunity are welcome.  Submit your comments only once, they may take awhile to appear.

Details here.  I would be interested to see the letter from the faculty to Judge Wolfson.  One wonders what Judge Wolfson knew before stepping into this morass and also whether he appreciates the profound damage Provost Epp has done to the DePaul College of Law.  His letter suggests he does not.

UPDATE:  A colleague elsewhere has forwarded to me the letter sent by 20 DePaul faculty to Judge Wolfson:

We, the  faculty whose names appear below, are writing to urge you to resign your appointment as interim dean of the College of Law. Our request is not directed at you personally. Most of the faculty has not had the privilege of meeting you. Those who have met you speak positively of you. We are all aware of your sterling reputation as a judge.  More than that, we all appreciate that you have found yourself in a situation that is significantly more difficult than you anticipated, and that is not of your making.

 

Nevertheless, we feel it is our duty to point out that the method by which you were appointed was illegitimate under the ABA standards for law schools and violated DePaul’s longstanding tradition of shared governance, because it deprived the law faculty of any participation in the selection of our interim dean.

The University administration has an ABA-mandated duty to consult with faculty, and it did not do so. As set forth in ABA Accreditation Standards 106(7), 206(d), and Interpretation 206-1, the faculty must have “substantial participation” in the selection of a dean, interim dean, or acting dean.   The “good cause” exception mentioned in Interpretation 206-1 applies only to the additional requirement that no appointment be made “over the stated objection of a substantial majority of the faculty.”  The requirement of initial faculty participation is absolute.  Although the “substantial participation” requirement may be subject to interpretation, it surely cannot be satisfied by no participation at all.

 

We realize you may not have been fully briefed on the ABA standards when you accepted the position. We feel duty-bound, however, to make you aware of them now, and of the widespread dismay at the University’s disregard of both the ABA standards and longstanding law school practices, though all this news has probably reached you already.

 

Like most law faculties, we have historically had some consultative role in the selection of our deans, whether full, interim, or acting. By depriving us of any such role, and ignoring our judgment and voice, the University is sending a wholly uncalled-for message that the faculty is not deserving of its respect or regard. This message harms our reputation, the school’s standing, the value of our students’ degrees, and our ability to recruit promising students and faculty. It will also harm our ability to attract outstanding applicants for our next dean search.

 

We know that you are a person of conscience and integrity. We also know that, as a judge, you appreciate the critical importance of proper governance and adherence to established and required procedures.  We therefore urge you to resign and allow us to pursue our mandated and customary practices in consulting on the appointment of the interim dean of the law school in advance of that appointment.