the Race to the Bottom

Many issues remain in the Churchill trial and Judge Naves gave the parties 30 days to file briefs on these remaining issues which appear to be: (1) should Churchill be reinstated to his position as a tenured faculty member at CU; (2) if not, should the court grant “front pay” for compensation Churchill would have earned had he continued to work for CU, and (3) is Churchill entitled to court costs and award of attorney fees and, if so, how much.

This post focuses on the factors that Judge Naves will use to determine if Churchill should be reinstated to his position as a tenured faculty member at CU.  The next post covers the issue if he does not reinstate Churchill--should he award “front pay” to Churchill and how much? 

Both Churchill and CU have been very public in their position on reinstatement. In the Denver Post article “Churchill wants $1 million if he doesn't get CU job back,” Churchill has stated he wants front pay of $1,000,000 if Judge Naves rules he cannot get his job back. Last Thursday, the Denver Post’s article “CU Vows to Challenge Churchill Reinstatement” reported that CU will “vigorously challenge” his reinstatement and stated as follows:

Ken McConnellogue, spokesman for the CU system, said the university is relying on its findings that Churchill engaged in repeated and flagrant academic misconduct to support its stance that having the controversial former professor back on campus is a "bad idea."

Undoubtedly, Churchill will press for reinstatement since it is the preferred remedy for future wages in his situation. And undoubtedly, CU will press Judge Naves to find “exceptional circumstances” are present to not reinstate Churchill and ask Judge Naves to award reasonable “front pay.” On balance, CU has “the tougher hill to climb” as explained more fully in this post.

Reinstatement as the Preferred Remedy

The key case on this issue is Squires v. Middle Smithfield Township, 54 F.3d 168 (3^rd Cir. 1994) which also addressed a first amendment judgment under a similar 42 USC 1983 claim. The court first cited with approval the Eleventh Circuit in Allen v. Autauga County Board of Education, 685 F.2d 1302, 1306 (11th Cir. 1982):

When a person loses his job, it is at best disingenuous to say that money damages can suffice to make that person whole. The psychological benefits of work are intangible, yet they are real and cannot be ignored. . . . We also note that reinstatement is an effective deterrent in preventing employer retaliation against employees who exercise their constitutional rights. If an employer's best efforts to remove an employee for unconstitutional reasons are presumptively unlikely to succeed, there is, of course, less incentive to use employment decisions to chill the exercise of constitutional rights.

Then, after the Third Circuit in Squires cited numerous cases that the preferred remedy for this kind of case is reinstatement, it concluded as follows:

In sum, we think the First Circuit had it right in its well-reasoned en banc opinion in Rosario-Torres:

Whenever an ex-employee sues alleging wrongful dismissal by a government agency, job restoration may be a material aspect of meaningful relief. Yet in the real world, reinstatement in unlawful-discharge cases often will place some burden on the agency: there will likely be tension (or even hostility) between the parties when forcibly reunited; employees who have assumed duties previously performed by the fired worker will have to be displaced when he or she returns; and, as a result, the public's business may be conducted somewhat less efficaciously. Be that as it may, we agree with those courts which have ruled that such routinely "incidental" burdens, in their accustomed manifestations, are foreseeable sequelae of defendant's wrongdoing, and usually insufficient, without more, to tip the scales against reinstatement when first amendment rights are at stake in a section 1983 action.

We do not perceive such a positioning of the weighbeam as a departure from general equitable principles. It is, rather, merely a way of setting a starting-point for the district court's consideration. Once this is understood, the "presumption" of reinstatement becomes just the dress of thought, a shorthand manner of saying that equitable considerations different in kind or degree from those regularly accompanying reinstatement must be present if reinstatement is to be withheld from the victim of a first amendment infraction. 889 F.2d at 322-23.  (Emphasis added).

CU's Defense to Reinstatement for Exceptional Circumstances

The 3^rd Circuit in Squires cited several cases that “the court should deny reinstatement in a first amendment case on the basis of equity only in exceptional circumstances.” Consequently, the issue is simple:

Does CU’s claim that twenty scholars working in multiple investigation committees found that Churchill had engaged in “repeated and flagrant academic misconduct,” and thus, “having the controversial former professor back on campus is a ‘bad idea’” constitute exceptional circumstances warranting Judge Naves to reject reinstatement in favor of money damages in the form of “front pay.”

Again the Squires case is informative since it was reviewing the judge’s decision not to grant reinstatement giving, among others, these two reasons: (1) "the evidence at trial did not overwhelmingly support Squires' claim of constitutional deprivation"; (2) "there were incidents of poor performance by plaintiff." On the first reason, the Third Circuit found that the district court's assessment that:

the evidence "did not overwhelmingly support Squires' claim of constitutional deprivation" -- is an impermissible factor for the district court to consider.  Once the jury has found in favor of plaintiff on liability, the existence of a constitutional deprivation is an established fact which may not be re-examined in the district court's subsequent determinations -- including determinations of appropriate equitable remedies. (Emphasis added).

This rationale for finding this reason impermissible (namely, the jury's decision preempts the equitable remedy consideration) also applies to the second factor where the court reasoned as follows:

The second factor mentioned by the district court was "incidents of poor performance by plaintiff." Under the Mount Healthy framework applicable to First Amendment unconstitutional discharge cases arising under § 1983, a finding of liability against the employer requires the inference that, absent the unconstitutional conduct, the adverse employment action would not have occurred. Denying reinstatement merely upon a showing of run-of-the-mill incidents of sub-par performance would substantially undercut the goal of providing make-whole relief. Thus, we do not find that such a showing constitutes a special circumstance militating against reinstatement. (Emphasis Added).

The Third Circuit’s reference to “Mount Healthy framework” was also adopted by Judge Naves in the jury instructions:

Question 1: When it terminated Professor Churchill’s employment, did a majority of the Board of Regents of the University of Colorado use Plaintiff’s protected speech activity as a substantial or motivating factor in the decision to discharge the Plaintiff from employment? (If “Yes, go to next question...”

Question 2: Have the Defendants 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.”

The jury decided specifically that CU did not fire Churchill for the permissible reason of research misconduct, but for his protected speech in the 9/11 Essay. Thus, under the Squires case, the jury has already decided the issue relating to research misconduct constituting grounds for dismissal. And ostensibly, Judge Naves cannot reexamine this issue, as CU will certainly request.

If CU grounds for “exceptional circumstances” warranting no reinstatement are simply the findings of the 20 scholars on an issue already decided by the jury, Judge Naves will have a very difficult decision given the Squires case.  This is especially true in light of the fact that the members of Investigative Committee and the Privilege & Tenure Committee decided by a majority vote not to terminate Churchill.  Moreover, the Privilege & Tenure Committee’s specific charge was to make recommendations on dismissal and three out of five voted for suspension rather than dismissal. This particular vote was the basis for Regent Cindy Carlisle’s lone vote not to dismiss Churchill.

Standard of Review in finding Exceptional Circumstances

Finally, case law indicates while Judge Naves’ decision is within his discretion, he needs to articulate the reasons if he departs from the preferred remedy of reinstatement. See Franks v. Bowman Transp. Co., 424 U.S. 747, 771. Again the Third Circuit decision in Squires provides the following guidance:

In reviewing an order denying reinstatement, we do not substitute our judgment for that of the district court. We do, however, have an obligation to examine whether the equitable factors considered by the district court and the weight given to those factors are appropriate in light of the purposes underlying the statutory cause of action. As we stated in Gurmankin v. Costanzo, 626 F.2d 1115 (3d Cir. 1980), cert. denied, 450 U.S. 923, 67 L. Ed. 2d 352, 101 S. Ct. 1375 (1981):

Meaningful appellate review of the exercise of discretion requires consideration of the basis on which the trial court acted. If the factors considered do not accord with those required by the policy underlying the substantive right or if the weight given to those factors is not consistent with that necessary to effectuate that policy, then the reviewing tribunal has an obligation to require the exercise of discretion in accordance with "what is right and equitable under the circumstances and the law."

Conclusion

Based upon the foregoing, Churchill will likely be reinstated at CU, at which point CU might ask Churchill, how much do you want not to be reinstated? However, if Judge Naves finds exceptional circumstances and is ultimately upheld, the question of front pay kicks in and is the subject of the next post answering the question: will Churchill be awarded $1,000,000 in front pay he has publicly stated he wants if not reinstated.