the Race to the Bottom

We have prevailed upon Professor Martin Katz at the University of Denver Sturm College of Law, to provide his thoughts on the claims made by Ward Churchhill in Churchill v. University of Colorado.   Professor Katz specializes in anti discrimination law, both within constitutional law and employment law.

As Professor Katz writes:

There are two claims that will be tried: A wrongful termination claim under the 1^st Amendment and a wrongful investigation claim under the 1^st Amendment.

Wrongful termination. This is a fairly traditional claim. The claim is that Prof. Churchill was fired because of his speech (particularly, his post-9/11 essay). The University does not appear eager to fight a test case over whether state universities can control the speech of their professors. So it will likely rely on the factual argument that it did not fire Prof. Churchill because of his speech. This claim will be analyzed under the familiar framework in Mt. Healthy University Dist. v. Doyle, 429 U.S. 274 (1977).

There are two steps in this framework. First, Prof. Churchill will have to prove that his speech was a “motivating factor” in the University’s decision to fire him. “Motivating factor” essentially means that the University considered his speech as a factor in its firing decision. Prof. Churchill’s complaint claims that he has a lot of evidence to support his motivating factor case. If he can produce this evidence, he will likely be able to show that his speech was a “motivating factor” in the University’s firing decision.

Second, if Prof. Churchill does prove that his speech was a “motivating factor” in the University’s firing decision, then the University will have the opportunity to prove that it would have reached the “same decision” even if it had not considered his speech. In other words, the University can try to prove that it had other reasons for its firing decision that were independently sufficient to reach that decision – and thus, that Prof. Churchill’s speech was not a “but for” cause of its firing decision.

Most likely, the University will point to allegations of plagiarism and substandard scholarship and claim that it would have fired Prof. Churchill for these reasons, even if it had not considered his speech. If the University proves its “same decision” defense, it will win the termination claim (even if Prof. Churchill had proven that his speech was “motivating factor” in the decision to fire him). Given the difficulty the University may have fighting the “motivating factor” portion of this claim, and the efficacy of the “same decision” defense, expect most of the action on this claim to focus on the “same decision” defense.

Wrongful investigation. This claim is essentially a clever variation of the wrongful termination claim. Prof. Churchill could fight the wrongful termination claim by arguing that he would not have been fired but for the investigation and that he would not have been investigated but for his speech. But doing so would require him to take on the burden of proving two levels of but for causation – not an easy task. So instead, he has advanced a fairly novel claim: a wrongful investigation claim. This claim is essentially that the University decided to investigate him because of his speech.

His hope seems to be that he can shift the burden on this claim in the way that Mt. Healthy allows him to shift the burden on his wrongful termination claim. If Mt. Healthy applies to this claim, he would only need to show that his speech was a “motivating factor” in the University’s decision to investigate him. (This should not be too difficult, given the numerous quotes by high ranking officials in the news at the time who said, in essence, that they regretted that they could not fire Churchill outright because of the pesky First Amendment, but instead planned to investigate Churchill to see if they could find grounds to fire him.)

Then, the University would bear the burden of showing that they would have reached the “same decision”; that is, that it would have investigated him even had he not engaged in controversial speech. This may be tricky for the University. But the University will likely try to argue that they received complaints about Prof. Churchill’s work from various third parties and could not reasonably ignore those complaints. The trick will be to argue that such complaints – which were almost certainly fueled by the tipsters’ disagreement with Prof. Churchill’s essay – should be seen as a cause of the investigation that is somehow independent of the essay because the complaints came from private parties. An interesting question.

A second interesting question about the wrongful investigation claim has to do with damages. If Prof. Churchill proves that he was wrongfully investigated, how was he hurt by that investigation? Prof. Churchill will argue that the investigation caused his termination, and attempt to collect damages related to his termination (lost wages, for example). But to do so he will have to show – you guessed it – causation: that, but for the investigation, he would not have been fired.

(By way of disclosure: I am unabashedly a causation nut, and regularly write on issues of causation in anti-discrimination law. See, e.g., Martin Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in Disparate Treatment Law, 94 Georgetown Law Journal 489 (2006). I am currently working on a book on causation issues in constitutional law, including the law of free speech. My website is: http://law.du.edu/index.php/profile/martin-katz.)