Churchill Trial: Concern over a Jury Instruction

After digesting the jury instructions Judge Naves gave to the members of the jury, one sentence in Instruction 7 (related to a finding that a majority of the Board of Regents was substantially or motivated by the protected 9/11 Essay in making their termination decision) raises a concern:

You should be mindful that the law applicable to this case requires only that a public employer refrain from terminating a public employee in retaliation for the employee's exercise of protected First Amendment rights.  So far as you are concerned in this case, a public employer may discharge a public employee for any other reason, good or bad, fair or unfair, and you must not second guess that decision or permit any sympathy for the employee to lead you to substitute you own judgment for that of the Defendants even though you personally may not approve of the action taken and would have acted differently under the circumstances.

What is troubling about this instruction is that it is describing the legal doctrine of employment at will when it says that an employee can be discharged for "any other reason, good or bad, fair or unfair."  This is true in Colorado absent an agreement between the employer and employee.  However, CU and Churchill had altered employment at will when Churchill was awarded tenure by CU.  The terms of the tenure contract generally means that a professor cannot be terminated unless there is "just cause" which CU has defined (related in particular to Churchill's case as seen in the P&T Report) as "conduct which falls below minimum standards for personal integrity."  Consequently, the jury instruction is misleading in that it gives the message that CU has unlimited flexibility in discharging Churchill other than for his protected speech.  This just is not the case in CU/Churchill's situation. 

Moreover, this concern bleeds over to the end of Instruction 7 related to CU's affirmative defense:

If you find in the Plaintiff's favor with respect to each of the facts that the Plaintiff must prove, you must then decide whether the Defendants have shown by a preponderance of the evidence that the Plaintiff would have been dismissed for other reasons even in the absence of the protected speech activity.  If you find that the Plaintiff would have been dismissed for reasons apart from the speech activity, then your verdict should be for the Defendants.

Again, "for other reasons" is misleading given that earlier in the instruction that CU can discharge Churchill for any reason, good or bad, fair or unfair.  No, the reason at issue under the tenure contract between CU and Churchill is whether his conduct "falls below minimum standards for personal integrity" and the instruction should have reflected this reason to enable the jury to focus on the correct "reason in the absence of the protected speech activity."

This analysis then leads to the question on the appropriate burden of proof that CU has in establishing its affirmative defense that Churchill "would have been dismissed for other reasons...."  Again, while case law specifies that it is "preponderance of the evidence," the tenure contract amends the burden of proof (as found and adopted by the P&T Committee in its findings) to the higher standard "clear and convincing evidence."  While this particular point may not have been litigated previously, it certainly seems reasonable that CU might have been subject to this higher burden through its contract with Churchill.   This would have made it easier for Churchill to find one member of the jury to find that CU would not have discharged Churchill for personal integrity issue by "clear and convincing evidence" to vitiate CU's affirmative defense.

Comments

[jason]

this is just poison in the well. looks like the judge and cu have a convergence of interest in this trial turning out badly for churchill. it's not like the judge doesn't know that this instruction is misleading. he's aware of the type of trial he is presiding over, and because of the nature of the case, he knows the tenure rules. ironically, if the the university gets off because of the parameters of the judge's instructions, he will be proving churchill's overall shcolarly and political perspective correct.

[thegeniusfiles]

I really hate to say this, but unfortunately, I think that regardless of the outcome of this trial, on a national level the damage has already been done. The message is out, and I think that academics have heard it loud and clear: you will be thrown under the bus if you speak your mind and cause a controversy. Churchill is an individual of extraordinary fortitude, tenacity and courage. But most academics are, well, let me say more reserved. That is a real shame. It undercuts one of the formerly greatest things about the United States - academic freedom. To quote: "what is popular is not always what is right, and what is right is not always popular."

[HigherEd]

I've had decades of experience in higher ed in Colorado and I'd say 'more reserved' is far too generous a characterization. In my experience, faculty have very little concern for defending academic freedom. It could be that a large number of university faculty teach in disciplines which generate little political controversy. But in my direct experience with academic freedom, most faculty members either don't grasp it's importance to a free society or are unwilling to step out of everyday routine to stand up for it. On the other hand, I have encountered a number of academic administrators seriously enough committed to academic freedom to have the backbone to stand up to political pressure. Kudos to them.