Opening Statement Chart (1 of 3)
A Combative Trial in Colorado as a Controversial Ex-Professor Seeks to Win Back His Job
By DAN FROSCH
Published: March 21, 2009
DENVER — A wrongful termination lawsuit filed by a former professor against the University of Colorado has been unfolding in exciting fashion in a courtroom here.
The professor, Ward L. Churchill, was dismissed by the university in July 2007 on grounds that he plagiarized and falsified parts of his research on Native Americans. But Mr. Churchill contends that he was fired in retaliation for an essay in which he described office workers killed in the World Trade Center attacks as “little Eichmanns.”
Mr. Churchill, seeking to be reinstated to his tenured position, is expected to testify on Monday.
The civil trial, which has finished its second week in district court, has been as combative and colorful as Mr. Churchill.
His lawyer, David Lane, has sought to portray him as the victim of a “howling mob” of university administrators, conservative media and politicians who were “falling over themselves” to have him fired.
But Patrick O’Rourke, a lawyer for the university, said in his opening statement, “Ward Churchill was fired for one reason and one reason only: he engaged in the worst kind of academic fraud that you can.”
Much of the testimony has focused on Mr. Churchill’s extensive scholarship, including his theory that Capt. John Smith purposefully introduced smallpox among the Wampanoag Indians in the 17th century.
It was after the outrage over Mr. Churchill’s “Eichmann” essay that other scholars came forward with claims of plagiarism. In May 2006, a faculty committee found that his academic work was seriously flawed. The committee further concluded that he had no factual basis for his smallpox theory.
Marianne Wesson, a University of Colorado law professor who led the committee, testified last week that Mr. Churchill had, in some of his work, cited writings of other scholars that he had actually ghostwritten, creating the illusion that there was a body of work supporting his theories.
Mr. Lane accused Ms. Wesson of bias, pointing to e-mail messages she wrote comparing backers of Mr. Churchill to the public support for O. J. Simpson, Bill Clinton and Michael Jackson.
“I really don’t doubt that Professor Churchill was, to many students, a very inspiring teacher,” Ms. Wesson testified. “I think he is a tragic figure, and it makes me sad that so much talent, so much promise has been wasted.”
November twenty-third, 2010.
In the News-David Lane and Ward Churchill Comment on the ruling and point out the defects in the appellate ruling:
Court of Appeals: CU, Regents Cannot Be Sued for Violating U.S. Constitution The Colorado Court of Appeals ruled that the University of Colorado and its Regents have absolute immunity when firing a tenured professor in violation of the First Amendment.
Attorney David Lane responds:
It is truly unfortunate that our most cherished freedoms are left in the hands of politicians and bureaucrats in black robes to protect. We are less free today because the Colorado Court of Appeals has given the go-ahead to the Regents to fire any professors they wish after running them through a sham “due process” procedure. A jury of Professor Churchill’s peers found that the Regents violated the First Amendment to the United States Constitution and the Colorado Court of Appeals is letting them get away with it. Their made-up justifications ring hollow in light of the freedom lost by their actions.
Ward Churchill summarizes the ruling:
- The Center for Constitutional Rights (CCR) is wrong
- The American Association of University Professors (AAUP) is wrong
- The American Civil Liberties Union (ACLU) is wrong
- The ACLU of Colorado is wrong
- The Society of American Law Teachers (SALT) is wrong
- The National Lawyers Guild (NLG) is wrong
- The National Coalition Against Censorship is wrong
- Latina/o Critical Legal Theory is wrong
- And Federal law doesn’t apply in Colorado.
COLORADO COURT OF APPEALS
Court of Appeals No. 09CA1713 City and County of Denver District Court No. 06CV11473 Honorable Larry J. Naves, Judge
The University of Colorado at Boulder and Regents of the University of Colorado, a body corporate,
Division V Opinion by JUDGE GRAHAM Terry and Booras, JJ., concur
Announced November 24, 2010 ______________________________________________________________________________
Killmer, Lane & Newman, LLP, David A. Lane, Denver, Colorado; Thomas K. Carberry, Denver, Colorado; The Noble Law Firm, LLC, Antony M. Noble, Denver, Colorado, for Plaintiff-Appellant
Patrick T. O’Rourke, Denver, Colorado; Hershey Skinner, LLC, Kari M. Hershey, Denver, Colorado, for Defendants-Appellees
Mark Silverstein, Denver, Colorado, for Amicus Curiae ACLU Foundation of Colorado
Aden Fine, Mariko Hirose, New York, New York, for Amicus Curiae ACLU Foundation
Martha West, Rachel Levinson, Kathi Westcott, Washington, D.C., for Amicus Curiae American Association of University Professors Joan Bertin, New York, New York, for Amicus Curiae National Coalition Against Censorship, Deatsch Law Office, Cheri J. Deatsch, Denver, Colorado; Heidi Elizabeth Boghosian, New York, New York, for Amici Curiae Center for Constitutional Rights, Latina/o Critical Legal Theory, Inc., National Lawyers Guild, and Society of American Law Teachers, Hall & Evans, L.L.C., Beth A. Dickhaus, Denver, Colorado, for Amicus Curiae Colorado Counties, Inc.
John W. Suthers, Attorney General, Daniel D. Domenico, Solicitor General, Douglas J. Cox, Senior Assistant Attorney General, Denver, Colorado, for Amicus Curiae State of Colorado
We are called upon to resolve questions concerning whether a university and its regents should be immune from a civil suit. Professor Ward Churchill appeals the trial court’s judgment (1) directing a verdict in favor of the University of Colorado and its Board of Regents and dismissing his 42 U.S.C. § 1983 claim that the University’s investigation of his academic works constituted an adverse employment action; (2) holding as a matter of law that the University was entitled to quasi-judicial immunity, vacating the jury’s verdict, and entering judgment in favor of the University on his section 1983 claim that the University violated his First Amendment rights when it dismissed him; and (3) denying his motion for reinstatement, or alternatively, money damages.
I. Factual Background Churchill was a tenured professor in the University’s
Department of Ethnic Studies. In early 2005, in anticipation of Churchill’s speaking engagement at Hamilton College, that school’s student newspaper ran a story about a Churchill essay in which he compared the victims of the 9/11 World Trade Center terrorist attack to Nazi war criminals. Subsequently, there was a great deal of public and media attention surrounding Churchill and his essay.
On February 3, 2005, the University of Colorado Board of Regents held a special meeting to consider Churchill’s essay and the resulting publicity. At the meeting, Interim Chancellor Phillip DiStefano announced that his office would “launch and oversee a thorough examination of Professor Churchill’s writings, speeches, tape recordings and other works.” In doing so, his office would attempt to answer two primary questions: (1) “[D]oes Professor Churchill’s conduct including his speech, provide any grounds for dismissal for cause as described in the Regents’ Laws?” and (2) “[I]f so is this conduct or speech protected by the First Amendment against University action?” The Regents unanimously approved a resolution supporting the investigation.
Chancellor DiStefano conducted the initial investigation together with the Dean of the School of Law, David Getches, and the Dean of the College of Arts and Sciences, Todd Gleeson. Their review concluded that five of Churchill’s controversial statements, including his 9/11 essay, were protected by the First Amendment.
However, in the course of their investigation, numerous allegations surfaced that Churchill had engaged in research misconduct. On March 29, 2005, Chancellor DiStefano issued a report, requesting the nine-member Standing Committee on Research Misconduct (SCRM) to convene and address these allegations.
The SCRM then impaneled an Inquiry Committee to address nine allegations of Churchill’s research misconduct. The Inquiry Committee received written submissions from Churchill and interviewed him. On August 19, 2005, the Inquiry Committee issued a report in which it unanimously agreed to forward seven of the nine allegations to an investigative committee.
Based on this recommendation, the SCRM formed an Investigative Committee in January 2006, which by rule included five professors who were not seated on the SCRM and who had established reputations for academic integrity, fairness, and open- mindedness. As part of the selection process, the SCRM inquired into potential biases and conflicts of interests and sought Churchill’s input regarding potential members of the committee. Professor Churchill objected to Professor Wesson’s serving on the Investigative Committee, suggested Professor Radalet as a member, and approved of Professor Clinton. Two members of the Investigative Committee, including Professor Clinton, were tenured professors from other universities.
The Investigative Committee heard testimony on four occasions between February 2006 and April 2006, at which time it conducted interviews of witnesses and Churchill. On May 9, 2006, it issued its report in which it found by a preponderance of the evidence that Churchill had committed research misconduct in five areas: (1) falsification, (2) fabrication, (3) plagiarism, (4) failure to comply with established standards regarding author names on publications, and (5) serious deviation from accepted practices in reporting research results. Three members of the Committee believed that the research misconduct was so serious that it satisfied the criteria for revocation of tenure and dismissal. Two members felt that Churchill’s conduct warranted suspension without pay for two years.
The SCRM then reviewed the Investigative Committee’s report and Churchill’s written response. On June 13, 2006, it issued its own report in which six voting members recommended Churchill’s dismissal. Three voting members recommended suspension without pay – two recommended a five-year suspension and one recommended a two-year suspension.
Citing the reports by the SCRM and its Investigative Committee, on June 26, 2006, DiStefano issued a notice of intent to seek dismissal of Churchill for conduct that falls below minimum standards of professional integrity. Pursuant to the University’s dismissal for cause and grievance process set forth in the Laws of the Regents (Laws), Churchill appealed this proposed dismissal, requesting a hearing before the Faculty Senate Committee on Privilege and Tenure (P&T Committee). He alleged that the University engaged in selective enforcement of research misconduct policies in retaliation for his exercise of free speech.
The five-member P&T Committee held a seven-day hearing. A complete record of these proceedings was transcribed and filmed by a court reporter and a videographer. At that hearing, Churchill was represented by counsel, who made an opening statement, presented expert witnesses, cross-examined the University’s witnesses, andpresented a written closing argument. On May 3, 2007, the P&T Committee issued its report, unanimously concluding that the University had met its burden of proving the existence of “conduct which falls below minimum standards of professional integrity” by clear and convincing evidence. The P&T Committee found by clear and convincing evidence:
- Three instances of evidentiary fabrication by ghostwriting and self-citation
- Two instances of evidentiary fabrication
- Two instances of plagiarism
- One instance of falsification.
This out of the millions of words he wrote spanning decades. He is by far the most prolific and brilliant American Indian writer there will ever be. In the native way of grasping the Universe as one thing, his comparison to the little Eichmans is culturally correct, especially if you look at what shell has done in some other Native regions. This is ongoing.
The P&T Committee also found that Churchill did not meet hisburden of proving by a preponderance of the evidence that he was denied procedural due process in the SCRM investigation or that he was being subjected to selective enforcement of the University’s rules concerning research misconduct. Two members of the P&T Committee recommended dismissal. Three members of the P&T Committee recommended that Churchill be suspended without pay for one year and that his rank be reduced to Associate Professor.
“First they ignore you, then they laugh at you, then they fight you, then you win.” -Mohandas Gandhi
“We are working towards complete freedom in a lawful, non-violent, non-aggressive way.” – Russell Means
The Lakotah’s 158 Year Long Struggle for Justice
by Russell Means, PhD with a bit of clerical and research assistance by David Adams –
This summary is real, startling, well-researched and definitive.
In December of 2007, the Republic of Lakotah was formed by the formal withdrawal from its Treaties of 1851 and 1868. This was the latest step in the longest running legal battle in the history of the World.
This was not a “cessation” from the United States, but a completely lawful “unilateral withdrawal” from the Treaties as permitted under the 1969 Vienna Convention on the Law of Treaties, of which, the United States is a signatory.
The purpose of the Republic of Lakotah is to follow the Instructions given by the Elders at the first International Indian Treaty Council in 1974. The Council held a “Western Hemisphere” Conference at Wakpala on the Standing Rock Sioux Indian Reservation. Over 5000 delegates of 97 Indigenous Peoples from the Americas gathered. The “manifesto” that was created on that occasion supports the rights of all Indigenous Peoples to live free and take whatever actions are necessary to uphold our sovereignty. This was the largest gathering of Indian People in the 20th Century where Indians paid their own way.
It was here that the Declaration of Continuing Independence was created. The conference was attended by numerous elders, including Chief Frank Fools Crow, pictured left. These were not your ordinary elders; most of them were born in the 1800’s to parents who had been born free, they had never been to schools. The majority spoke no English, and the rest spoke broken English. Russell Means was made a permanent trustee of the International Indian Treaty Council by the elders and the conference.
These Elders Gave the Conference and the Newly Formed International Treaty Council Two Mandates:
- The first mandate was to become recognized by the International Communities. On September 2007, when the United Nations passed the Declaration of Indigenous Rights, that mandate was fulfilled.
- We were to remember the words of Noble Red Man (Matthew King, pictured below), “We must always remember that we were once a free People, if we don’t, we shall cease to be Lakotah.” This second mandate is to return to our original status as free and Independent Nations. On December 17, 2007, the Lakotah Freedom Delegation presented to the Department of State of the United States of America, we are unilaterally withdrawing from all Treaties and Agreements entered into between the United States of America and Lakotah.
Leading up to the 2007 Unilateral Treaty Withdrawal, Russell traveled all over the five state area meeting with key people over a seven month period. Now in his seventieth winter, he is working on achieving better conditions for the Indian people for over forty years.
The 1868 Fort Laramie Treaty was considered by some commentators to have been a complete victory for Red Cloud and the Sioux. In 1904 it was described as “the only instance in the history of the United States where the government has gone to war and afterwards negotiated a peace conceding everything demanded by the enemy and exacting nothing in return.”
As a result of the long running litigation between the Lakotah and the United States, the U.S. has made some telling statements:
“A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history,…” U.S. Court of Claims, 1975
“ It is clear that, based on the representations of the United States negotiators, the Indians cannot have regarded the 1868 Treaty as a treaty of cession. Nowhere in the history leading up to the treaty negotiations themselves is there any indication that the United States was seeking a land cession or that the Sioux were unwilling to consent to one. On the contrary, the evidence is overwhelming that the Sioux would never have signed the treaty had they thought they were ceding any land to the United States.” Sioux Tribe v. United States, 42 Indian Claims Commission, 1978
“Here, there is no doubt that the Black Hills were “taken” from the Sioux in a way that wholly deprived them of their property rights to that land. The question presented is whether Congress was acting under circumstances in which that “taking” implied an obligation to pay just compensation, or whether it was acting pursuant to its unique powers to manage and control tribal property as the guardian of Indian welfare, in which event the Just Compensation Clause would not apply.” U.S. Supreme Court, UNITED STATES v. SIOUX NATION OF INDIANS, 1980
The court also remarked upon President Grant’s duplicity in breaching the Government’s treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills.
“That there was tragedy, deception, barbarity, and virtually every other vice known to man in the 300-year history of the expansion of the original 13 Colonies into a Nation which now embraces more than three million square miles and 50 States cannot be denied. But in a court opinion, as a historical and not a legal matter, both settler and Indian are entitled to the benefit of the Biblical adjuration: ‘Judge not, that ye be not judged.'” Hearing before the committee on Indian affairs, united states senate session on Tribal Sovereign Immunity 9-24, 1996
The Historical Facts that Form the Basis of the Lakotah’s Claim to Sovereignty:
1824 – Indian Service Department (BIA) created in the War Department.
1849 – Indian Service Department (BIA) transferred to the Department of the Interior.
1851 – Treaty of Fort Laramie marks turning point in U.S.-Indian relations on the northern plains creating the Great Lakotah (Sioux) Nation
1853-56 – The United States acquires 174 million acres of Indian lands in a series of 52 treaties, all of which are subsequently broken by the U.S. Government
1854 – U.S. Indian Affairs commissioner calls for end of Indian removal policy – IGNORED
1862-63 – Santee Sioux uprising in Minnesota under Chief Little Crow ends with the hanging of 38 Santees on Dec. 26, 1863, the largest mass execution in U.S. history was ordered by President Lincoln without a hearing just two days after he signed the Emancipation Proclamation.
1864 – Nov. 29, Army Colonel (and United Methodist Reverend) John M. Chivington’s hastily assembled volunteers massacre more than 300 Cheyenne men, women and children peacefully camped at Sand Creek.
1866 – U.S. Congress appropriates Indian lands (without consultation or consent as required by the Treaty of 1851) as right-of-way for construction of transcontinental railroad
1866-68 – U.S. TREATY VIOLATION: In direct violation of the Treaty of 1851, the U.S. government allowed the Bozeman trail to go through the Heart of the Lakotah Nation as a short-cut to the gold fields in Montana. Soon, the Army began, in another gross violation of the 1851 Treaty, to construct and man a string of forts along the Bozeman Trail. Cheyenne, Lakotah and Arapaho forces led by Chief Red Cloud soundly defeat the U.S. Army on the field of battle. The war ended when the U.S. sued for peace and made the promises documented in the Treaty of 1868. This will remain the only full-scale “Indian War” won by the Indians, a victory formalized in the 1868 Fort Laramie Treaty
1868 – The United States pledged that the Great Sioux Reservation, including the Black Hills, would be “set apart for the absolute and undisturbed use and occupation of the Indians herein named.”
The Fort Laramie Treaty included several agreements central to the issues presented in this case. First, it established the Great Sioux Reservation. The United States “solemnly agree[d]” that no unauthorized persons “shall ever be permitted to pass over, settle upon, or reside in [this] territory.”
Second, the United States permitted members of the Sioux tribes to select lands within the reservation for cultivation. Id., at 637. In order to assist the Sioux in becoming civilized farmers, the Government promised to provide them with the necessary services and materials, and with subsistence rations for four years.
Third, the U.S. Government fraudulently claims, that in exchange for the benefits conferred by the treaty, the Sioux agreed to relinquish their rights under the Treaty of September 17, 1851, to occupy territories outside the reservation, while reserving their “right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill river, so long as the buffalo may range thereon in such numbers as to justify the chase.” The Indians also, allegedly, expressly agreed to withdraw all opposition to the building of railroads that did not pass over their reservation lands, not to engage in attacks on settlers, and to withdraw their opposition to the military posts and roads that had been established south of the North Platte River.
Fourth, Art. XII of the treaty provided: “No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said Indians, unless executed and signed by at least three fourths of all the adult male Indians, occupying or interested in the same.”
1868 – The U.S.A. Treaty Commission, upon returning to Washington, D.C., stopped in Chicago and altered the text of the Treaty to eliminate all land now used by the State of Nebraska.
1869 – Transcontinental railroad completed. Among other uses, this transported large numbers of hunters to kill off the Buffalo herds.
1871 – Congress ratifies last of 372 treaties made with Indian tribes since 1778; later accords will not have treaty status, which recognizes tribes as sovereign nations – General Sheridan issues orders forbidding western Indians to leave reservations without permission – White hunters in Unites States begin wholesale killing of buffalo
1874 – U.S. TREATY VIOLATION: Lieutenant Colonel George Armstrong Custer led the expedition of close to 1,000 soldiers and teamsters, and a substantial number of military and civilian aides. By the end of JULY, they had reached the Black Hills, and by mid-August had confirmed the presence of gold fields in that region. The discovery of gold was widely reported in newspapers across the country. Custer’s florid descriptions of the mineral and timber resources of the Black Hills, and the land’s suitability for grazing and cultivation, also received wide circulation, and had the effect of creating an intense popular demand for the “opening” of the Hills for settlement. The only obstacle to “progress” was the Fort Laramie Treaty that reserved occupancy of the Hills to the Sioux.
In an interview with a correspondent from the Bismarck Tribune, published September 2, 1874, Custer recognized the military’s obligation to keep all trespassers off the reservation lands, but stated that he would recommend to Congress “the extinguishment of the Indian title at the earliest moment practicable for military reasons.”
Quoting the 1874 annual report of Lieutenant General Philip H. Sheridan, as Commander of the Military Division of the Missouri, to the Secretary of War: “Having promised the Sioux that the Black Hills were reserved to them, the United States Army was placed in the position of having to threaten military force, and occasionally to use it, to prevent prospectors and settlers from trespassing on lands reserved to the Indians.”
For example, in September 1874, General Sheridan sent instructions to Brigadier General Alfred H. Terry, Commander of the Department of Dakota, at Saint Paul, directing him to use force to prevent companies of prospectors from trespassing on the Sioux Reservation. At the same time, Sheridan let it be known that he would “give a cordial support to the settlement of the Black Hills,” should Congress decide to “open up the country for settlement, by extinguishing the treaty rights of the Indians.”
Sheridan’s instructions were published in local newspapers. Eventually, however, the Executive Branch of the Government decided to abandon the Nation’s treaty obligation to preserve the integrity of the Sioux territory. In a letter dated November 9, 1875, to Terry, Sheridan reported that he had met with President Grant, the Secretary of the Interior, and the Secretary of War, and that the President had decided that the military should make no further resistance to the occupation of the Black Hills by miners, “it being his belief that such resistance only increased their desire and complicated the troubles.”
These orders were to be enforced “quietly,” , and the President’s decision was to remain “confidential.” (letter from Sheridan to Sherman). With the Army’s withdrawal from its role as enforcer of the Fort Laramie Treaty, the influx of settlers into the Black Hills increased. The Government concluded that the only practical course was to secure to the citizens of the United States the right to mine the Black Hills for gold. Toward that end, the Secretary of the Interior, in the spring of 1875, appointed a commission to negotiate with the Sioux. The commission was headed by William B. Allison. The tribal leaders of the Sioux were aware of the mineral value of the Black Hills and refused to sell the land for a price less than $70 million. The commission offered the Indians an annual rental of $400,000, or payment of $6 million for absolute relinquishment of the Black Hills. The negotiations broke down.
Winter of 1875-1876 – Many of the Sioux were hunting in the unceded territory north of the North Platte River, reserved to them for that purpose in the Fort Laramie Treaty. On December 6, 1875, with blatantly hostile intentions, the Commissioner of Indian Affairs sent instructions to the Indian agents on the reservation to notify those hunters that if they did not return to the reservation agencies by January 31, 1876, they would be treated as “hostiles.”
Given the severity of the winter, compliance with these instructions was impossible. On February 1, the Secretary of the Interior nonetheless relinquished jurisdiction over all hostile Sioux, including those Indians exercising their treaty-protected hunting rights, to the War Department.
1876 – Sioux War for the Black Hills waged by Sioux, Cheyenne, and Arapaho forces under Sitting Bull and Crazy Horse. On June 25, 1876, Custer’s 7th Cavalry is crushed at Battle of the Little Bighorn while on the way to ambush a Lakotah village. That victory, of course, was short-lived, and those Indians who surrendered to the Army were returned to the reservation, and deprived of their weapons and horses, leaving them completely dependent for survival on rations provided them by the Government. Sitting Bull and followers seek refuge in Canada.
1876 – U.S. TREATY VIOLATION: “GIVE UP THE LAND OR STARVE CAMPAIGN”: August, Congress enacted an appropriations bill providing that “hereafter there shall be no appropriation made for the subsistence” of the Sioux, unless they first relinquished their rights to the hunting grounds outside the reservation, ceded the Black Hills to the United States.
A commission, headed by George Manypenny, arrived in the Sioux country in early September and commenced meetings with the head men of the various tribes. The members of the commission impressed upon the Indians that the United States no longer had any obligation to provide them with subsistence rations. The commissioners brought with them the text of a treaty that had been prepared in advance. The principal provisions of this treaty were that the Sioux would relinquish their rights to the Black Hills and other lands west of the one hundred and third meridian, and their rights to hunt in the unceded territories to the north, in exchange for subsistence rations for as long as they would be needed to ensure the Sioux’ survival.
Hagan, The Reservation Policy: Too Little and Too Late, in Indian-White Relations: A Persistent Paradox 157-169 (J. Smith & R. Kvasnicka, eds., 1976). In words applicable to conditions on the Sioux Reservation during the years in question, Professor Hagan stated: “The idea had been to supplement the food the Indians obtained by hunting until they could subsist completely by farming. Clauses in the treaties permitted hunting outside the strict boundaries of the reservations, but the inevitable clashes between off-reservation hunting parties and whites led this privilege to be first restricted and then eliminated. The Indians became dependent upon government rations more quickly than had been anticipated, while their conversion to agriculture lagged behind schedule. The quantity of food supplied by the government was never sufficient for a full ration, and the quality was frequently poor. But in view of the fact that most treaties carried no provision for rations at all, and for others they were limited to four years, the members of Congress tended to look upon rations as a gratuity that should be terminated as quickly as possible. The Indian Service and military personnel generally agreed that it was better to feed than to fight, but to the typical late nineteenth-century member of Congress, not yet exposed to doctrines of social welfare, there was something obscene about grown men and women drawing free rations. Appropriations for subsistence consequently fell below the levels requested by the secretary of the interior….That starvation and near-starvation conditions were present on some of the sixty-odd reservations every year for the quarter century after the Civil War is manifest.” The Government’s “sell or starve policy” was not effective.
According to the terms of the one-sided Manypenny arrangement, the Sioux were to surrender claims to the Black Hills region, which stretched across five states and covered 47 million acres of land stuffed with gold and other resources that would enrich American industrialists and financiers while impoverish the indigenous people who lived there.
In setting out to obtain the tribes’ agreement to this treaty, the commission ignored the stipulation of the Fort Laramie Treaty that any cession of the lands contained within the Great Sioux Reservation would have to be joined in by three-fourths of the adult males. Instead, the treaty was presented just to Sioux chiefs and their leading men. It was signed by only 10% of the adult male Sioux population.
The provision of rations was to be conditioned, however, on the attendance at school by Indian children, and on the labor of those who resided on lands suitable for farming. The Government also promised to assist the Sioux in finding markets for their crops and in obtaining employment in the performance of Government work on the reservation.
Three years after the agreement that bore his name was ratified, George Manypenny wrote a book entitled Our Indian Wards. There he wrote that:
It can not be denied, that from the period when the first infant settlements were made upon the Atlantic sea-board by European colonies, until the present time, there have been constant, persistent, and unceasing efforts on the part of the white man to drive the Indian from his hunting ground and his home.
1877 – Feb. 28, – Congress “resolves” the “3/4 of adult males” problem by enacting the 1876 “agreement” into law as the Act of(1877 Act), 19 Stat. 254. The Act had the effect of abrogating the earlier Fort Laramie Treaty, and of implementing the terms of the Manypenny Commission’s “agreement” with the Sioux leaders. The passage of the 1877 Act legitimized the settlers’ invasion of the Black Hills, but throughout the years it has been regarded by the Sioux as a breach of this Nation’s solemn obligation to reserve the Hills in perpetuity for occupation by the Indians secured by the Sacred documetn of the white man and the Constitution of the United Sates of America!
1877 – Crazy Horse is killed while in custody after he surrenders.
1881 – Sitting Bull and 187 followers surrender to U.S. officials at Fort Buford, North Dakota
1885 – The last great herd of buffalo in the United States (at one time 60,000,000) is exterminated. In this chapter of history eliminated from the history books, the government took sixty years to accomplish this most damning genocidal policy!
1887 – Congress passes the General Allotment Act (the Dawes Act), which ends communal ownership of reservation lands, distributing 160-acre “allotments” to individual Indians and disposing of the surplus. Tribes lose millions of acres. (Much of this land is now in the hands of white ranchers.)
1888 – Congress begins the outlawing of the entire Indian Way of Life and our Spiritual and Prayer Ceremonies.
1890-1910 – U.S. Indian population reaches low point: less than 250,000. The population of the Indigenous People prior to the invasion in 1492, has been estimated at 14,000,000 in the contiguos 48 states!
1890 – On Dec. 15, 1890, Sitting Bull is killed at the Standing Rock Reservation, South Dakota, increasing tensions there.
1890 – Dec. 28, U.S. troops massacre more than 300 Sioux prisoners of war at what is now known as Wounded Knee who were traveling to to visit Red Cloud. After disarming the Indians, the U.S. Army used for small arms and four of their newest weapons, the Hotchkiss revolving canon which fired 1.25 inch exploding shells. This “battle” as it’s recorded in the U.S. history books resulted in the awarding of twenty Congressional Medals of Honor for Valor which were bestowed on the 7th Calvary. To this day, this day, this is the most Medals of Honor EVER awarded for a battle. More than any of the atrocious battles in the Pacific during World War II.
1891 – Indian Education. A Congressional Act authorized the Commissioner of Indian Affairs “to make and enforce by proper means” rules and regulations to ensure that Indian children attended schools designed and administered by non-Indians. Children were literally ripped from their parents’ arms and sent to federal and missionary boarding schools all over the West. This genocidal campaign continues to this day as children are unlawfully and manipulatively taken from their parents all over the U.S. under the 1978 “Indian Child Welfare Act.”
1891 – 1891 amendment to the Dawes Act. This amendment modified the amount of land to be allotted and set conditions for leasing allotments.
1891 – Congress authorizes the leasing by whites of allotted Indian lands
1893 – Indian Education. This Congressional Act made school attendance for Indian children compulsory and authorized the BIA to withhold rations and government annuities to parents who did not send their children to school.
1898 – Curtis Act. This Congressional Act ended tribal governments practice of refusing allotments and mandated the allotment of tribal lands in Indian Territory – including the lands of the Cherokee, Creek, Choctaw, Chickasaw, and Seminole nations.
1898 – TREATY VIOLATION: Curtis Act seeks to extend allotment policy to “Five Civilized Tribes” by dissolving tribal governments, requiring abolished Indian nations to submit to allotment, and instituting civil government in Indian Territory
1903 – Lone Wolf v. Hickcock Supreme Court decision. The Kiowas and Comanches sued the Secretary of the Interior to stop the transfer of their lands without consent of tribal members which violated the promises made in the 1867 Treaty of Medicine Lodge. The Court ruled that the trust relationship served as a source of power for Congress to take action on tribal land held under the terms of a treaty. Thus, Congress could, by statute, abrogate the provisions of an Indian treaty. Further, Congress had a plenary – or absolute – power over tribal relations.
1906 – Antiquities Act. This Congressional Act declared that Indian bones and objects found on federal land were the property of the United States. This unleashed a flood of of anthropologists and archaeologists as well as ghoulish profiteers to rob our graves with impunity.
1906 – Burke Act. This act amended the Dawes Act to give the secretary of Warthe power to remove allotments from trust before the time set by the Dawes Act, by declaring that the holders had “adopted the habits of civilized life.” This act also changed the point at which the government would award citizenship from the granting of the allotment to the granting of the title.
1908 – TREATY VIOLATION: Supreme Court defines rights of the federal government to reserve water for the use of Indian tribes
1910 – TREATY VIOLATION: Federal government forbids the Sun Dance among the Plains Indians, giving the use of self-torture as the reason.
1923 – The Lakotah, after years of lobbying, succeeded in obtaining from Congress the passage of a special jurisdictional Act which provided them a forum for adjudication of all claims against the United States “under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band or bands thereof.” Pursuant to this statute, the Sioux, in 1923, filed a petition with the Court of Claims alleging that the Government had taken the Black Hills without just compensation, in violation of the Fifth Amendment. This claim was dismissed by that court in 1942. The case was re-filed after the establishment of the Indian Court of Claims in 1946. Subsequently, the case went to the Supreme Court three times, before finally being ruled on in 1980, thus making the “Black Hills Claim” the longest running litigation in U.S. history, 58 years. As the money awarded has still not been accepted by the Lakotah, one could say that the claim is yet unresolved. The Lakotah asked for the return of all lands according to the treaties and the Constitution. However, once the lawyers go to Washington, D.C., they violated the Lakotah’s instructions and and sought not the return of the land, but “just compensation.”
1924 – The Indian Citizenship Act, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America’s indigenous peoples, called “Indians” in this Act. (The Fourteenth Amendment guarantees citizenship to persons born in the U.S., but only if “subject to the jurisdiction thereof”; this latter clause excludes certain indigenous.) The act was signed into law by President Calvin Coolidge on June 2. However, to this day, Indians are not granted the protections granted all other citizens under the Bill of Rights. This was done without the consent of Indians!
1927 Grand Council of American Indians:
The white people, who are trying to make us over into their image, they want us to be what they call “assimilated,” bringing the Indians into the mainstream and destroying our own way of life and our own cultural patterns. They believe we should be contented like those whose concept of happiness is materialistic and greedy, which is very different from our way.
We want freedom from the white man rather than to be integrated. We don’t want any part of the establishment, we want to be free to raise our children in our religion, in our ways, to be able to hunt and fish and live in peace. We don’t want power, we don’t want to be congressmen, or bankers….we want to be ourselves. We want to have our heritage, because we are the owners of this land and because we belong here.
The white man says, there is freedom and justice for all. We have had ‘freedom and justice,’ and that is why we have been almost exterminated. We shall not forget this.
1930’s – Adolph Hitler patterns his genocidal techniques after the American Indian Policy of the U.S. Government. “Adolf Hitler”, John Toland, Publisher: Doubleday & Company, Inc., Garden City, New York 1976.
“Hitler’s concept of concentration camps as well as the practicality of genocide owed much, so he claimed, to his studies of English and United States history. He admired
the camps for Boer prisoners in South Africa and for the Indians in the wild West;
and often praised to his inner circle the efficiency of America’s extermination-by starvation and uneven combat-of the red savages who could not be tamed by captivity.” Pg 702
1934 – TREATY VIOLATION: U.S. Indian Reorganization Act (IRA) reverses U.S. policy of allotment, providing for tribal self-government and landholding and launching an Indian credit program.
1943 – The U.S. Supreme Court refused to hear the Court of Claims dismissal of the Black Hills claim under the 1920 jurisdictional statute by denying the Sioux bands’ petition for a writ of certiorari (Sioux Tribe v. United States, 318 U.S. 789 ).
1946 – Indian Court of Claims established by the US. creating a new forum to hear and determine all tribal grievances that had arisen previously.
1950 – Counsel for the Sioux resubmit the Black Hills claim to the Indian Claims Commission. The Commission initially ruled that the Sioux had failed to prove their case. The Sioux filed a motion with the Court of Claims to vacate its judgment of affirmance alleging that the Commission’s decision had been based on a record that was inadequate, due to the failings of the Sioux’ former counsel. This motion was granted and the Court of Claims directed the Commission to consider whether the case should be reopened for the presentation of additional evidence.
1954 – Indian Claims Commission dismissed Docket 74, a part of the Black Hills claim.
1958 – Indian Claims Commission entered an order reopening the case and announcing that it would reconsider its prior judgment on the merits of the Sioux claim. Following the Sioux’ filing of an amended petition, claiming again that the 1877 Act constituted a taking of the Black Hills for which just compensation had not been paid, there ensued a lengthy period of procedural sparring between the Indians and the Government.
1960 – Indian Claims Commission agreed to allow the Sioux tribes to amend their original Docket 74 petition by substituting two separate petitions to be designated as Docket 74-A and 74-B.
Docket 74-A involved claims for Sioux property outside of western South Dakota that was, according to the United States, voluntarily “ceded” by the Sioux bands under article 2 of the 1868 Fort Laramie Treaty! Docket 74-A consisted of the following claims:
1. A recognized title claim for 34 million acres of Sioux lands located west of the Missouri River (outside of western South Dakota) in the states of Montana, Wyoming, North Dakota, and Nebraska; and
2. An aboriginal title claim for 14 million acres of Sioux lands located east of the Missouri River (in the states of North Dakota and South Dakota).
Docket 74-B involved claims for Sioux property confiscated by Congress under the 1877 act in violation of the Just Compensation Clause of the Fifth Amendment. Docket 74-B consisted of the following claims:
1. A claim for 7.3 million acres of the Great Sioux Reservation (the Black Hills) confiscated under article 1 of the 1877 act;
2. A claim for article 11 hunting rights confiscated under article 1 of the 1877 act;
3. A claim for placer (surface) gold removed by trespassing gold miners with U.S. government connivance prior to 1877; and
4. A claim for three rights-of-way confiscated under article 2 of the 1877 act.
1962 – After the Sioux tribes succeeded in reopening Docket 74 in 1960, they attempted three times to amend their petition to allege a wrongful taking under the 1868 treaty. All three amendments were denied by the ICC on May 11,1960, February 28, 1962, and October 29,1968.
1964 – South Africa copies the U.S. Reservation Scheme: The Bantu Laws Amendment Act of 1964 gave the government complete authority to banish blacks from any urban area and from white agricultural areas. During the 1970’s, the government stripped thousands of blacks of their South African citizenship when it granted nominal independence to their homelands. Most of the homelands had few natural resources, were not economically viable, and being both small and fragmented, lacked the autonomy of independent states.
1965 – The Indian Claims Commission ruled that the 1851 treaty recognized title in the “Sioux or Dahcotah Nation” to approximately 60 million acres of territory situated east of the Missouri River in what is now the states of North Dakota, South Dakota, Nebraska, Wyoming, and Montana.
1969 – Indian Claims Commission allows the Docket 74 Sioux Tribes to intervene in the suit with the Yankton Sioux (Docket 332-C) and include their claims for aboriginal title lands located east of the Missouri River. It also allowed the Yankton Sioux, for the first time, to assert a recognized title claim west and north of the Missouri River on the basis that it was a party to the 1851 Fort Laramie Treaty.
1969 – American Indian activists occupy Alcatraz Island in San Francisco Bay to call attention to the plight of contemporary Indians. The occupation lasts until 1971.
1969 – Vienna Convention on Treaties:
Scope of the present Convention: The present Convention applies to treaties between States.
Article 49- Fraud
If a State has been induced to conclude a treaty by the fraudulent conduct govern questions not regulated by the provisions of the present Convention, Have agreed as follows:
Use of terms
1. For the purposes of the present Convention:
(a) ‘treaty’ means an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;
(b) ‘ratification’, ‘acceptance’, ‘approval’ and ‘accession’ mean in each case the
international act so named whereby a State establishes on the international plane its consent to be bound by a treaty;
(c) ‘full powers’ means a document emanating from the competent authority of a
State designating a person or persons to represent the State for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State to be bound by a treaty, or for accomplishing any other act with respect to a treaty;
(d) ‘reservation’ means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State;
(e) ‘negotiating State’ means a State which took part in the drawing up and adoption of the text of the treaty;
(f) ‘contracting State’ means a State which has consented to be bound by the
treaty, whether or not the treaty has
entered into force;
(g) ‘party’ means a State which has consented to be bound by the treaty and for which the treaty is in force;
(h) ‘third State’ means a State not a party to the treaty;
(i) ‘international organization’ means an intergovernmental organization.
Termination or suspension of the operation of a treaty as a consequence of its breach:
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as aground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
(a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate it either:
(i) in the relations between themselves and the defaulting State, or
(ii) as between all the parties;
(b) a party specially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the defaulting State;
(c) any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect to itself if the treaty is of such a character that a material breach of its provisions by one party radically changes the position of every party with respect to the further performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in:
(a) a repudiation of the treaty not sanctioned by the present Convention; or
(b) the violation of a provision essential to the accomplishment of the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the event of a breach.
5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of
the human person contained in treaties of a humanitarian character, in particular to provisions prohibiting any form of reprisals against persons protected by such treaties.
1970 – Nixon’s “Special Message on Indian Affairs.” President Nixon delivered a speech to Congress which denounced past federal policies, formally ended the termination policy, and called for a new era of self-determination for Indian peoples.
1972 – Trail of Broken Treaties. Over 500 Indian activists traveled across the United States to Washington, DC where they planned to meet with BIA officials and to deliver a 20-point proposal for revamping the BIA and establishing a government commission to review treaty violations. When guards at the BIA informed the tribal members that Bureau officials would not meet with them and threatened forcible removal from the premises, the activists began a week-long siege of the BIA building. The BIA finally agreed to review the 20 demands and to provide funds to transport the activists back to their home. Shortly thereafter, the FBI classified AIM as “an extremist organization” and added the names of its leaders to the list of “key extremists” in the US.
1972 – White vigilantes beat Raymond Yellow Thunder to death in Gorden, Neb. A ruling of death by suicide causes protests by more than 1,000 Sioux from Pine Ridge Reservation. Officials, forced to perform an autopsy, change their finding to manslaughter; two of the killers are subsequently tried and convicted
1973 – Members of AIM and about 200 armed Oglala Sioux occupy site of the Wounded Knew Massacre on Pine Ridge Reservation in South Dakota for 71 days.
1974 – In Minnesota, the first trial stemming from the occupation of Wounded Knew takes place. In 1975 AIM leaders Dennis Banks and Russell Means are convicted on assault and riot charges. In 1978 Gov. Jerry Brown gives Banks sanctuary in California
1974 – By a 4-to-1 vote, the Commission reached a preliminary decision on the 1968 questions it posed. The Commission first held that the 1942 Court of Claims decision did not bar the Sioux’ Fifth Amendment taking claim through application of the doctrine of res judicata. The Commission concluded that the Court of Claims had dismissed the earlier suit for lack of jurisdiction, and that it had not determined the merits of the Black Hills claim. The Commission then went on to find that Congress, in 1877, had made no effort to give the Sioux full value for the ceded reservation lands. The only new obligation assumed by the Government in exchange for the Black Hills was its promise to provide the Sioux with subsistence rations, an obligation that was subject to several limiting conditions. Under these circumstances, the Commission concluded that the consideration given the Indians in the 1877 Act had no relationship to the value of the property acquired. Moreover, there was no indication in the record that Congress ever attempted to relate the value of the rations to the value of the Black Hills. The Commission concluded that Congress had acted pursuant to its power of eminent domain when it passed the 1877 Act, rather than as a trustee for the Sioux, and that the Government must pay the Indians just compensation for the taking of the Black Hills.
1974 – Indian Claims Commission ruled that the 1877 act constituted an unconstitutional taking of the Black Hills and three rights of way under the Just Compensation Clause of the Fifth Amendment; that the Congress acted pursuant to its power of eminent domain and was required to pay Just Compensation to the Docket 74 Sioux. The ICC then awarded the Docket 74 Sioux $17.1 million for the 7.3 million acres of Black Hills land that the United States confiscated, plus 5 percent simple interest from the time of the taking. The ICC also awarded the Docket 74 Sioux compensation for placer (surface) gold removed by trespassing miners prior to 1877, and for the three rights of way across the reduced Great Sioux Reservation (Sioux Nation v. United States, 33 Ind. Cl. Comm. 151 ). The total award in Docket 74-B was $105 million.
1975 – Shoot-out on Pine Ridge Reservation between AIM members and FBI agents results in the death of two agents. Leonard Peltier is later convicted, a verdict that remains controversial.
1975 – On appeal, the Court of Claims, without deciding the merits, dismissed the Indian Claims Commission’s 1974 final judgment on the basis that the appeal was barred by res judicata since the Black Hills Claim had been previously decided against the Sioux in 1942. The Docket 74 Sioux argued that the earlier dismissal was for lack of jurisdiction, not a dismissal on the merits of their claims.
1975 – The court’s majority recognized that the practical impact of the question presented was limited to a determination of whether or not an award of interest would be available to the Indians. This followed from the Government’s failure to appeal the Commission’s holding that it had acquired the Black Hills through a course of unfair and dishonorable dealing for which the Sioux were entitled to damages, without interest, under §2 of the Indian Claims Commission Act, 60 Stat. 1050, 25 U.S.C. §70a(5). Only if the acquisition of the Black Hills amounted to an unconstitutional taking would the Sioux be entitled to interest. 207 Ct.Cl., at 237, 518 F.2d, at 1299. The court affirmed the Commission’s holding that a want of fair and honorable dealings in this case was evidenced, and held that the Sioux thus would be entitled to an award of at least $17.5 million for the lands surrendered and for the gold taken by trespassing prospectors prior to passage of the 1877 Act.
The court also remarked upon President Grant’s duplicity in breaching the Government’s treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills. The court concluded: “A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe.”
1976 – The Indian Claims Commission determined that, as of February 24, 1869, the fair market value of both the recognized title claim (34 million acres) and the aboriginal title claim (14 million acres) in Docket 74-A was $45,685,000.00. This valuation was broken down as follows:
* East of Missouri West of Missouri
* Agricultural $11,135,000 $ 3,790,000
* Grazing $ 9,760,000 $21,000,000
* Total $20,896,000 $24,790,000
See Sioux Tribe v. United States, 38 Ind. Cl. Comm. 485 (1976).
1977 – Senate Committee on Indian Affairs (SCIA). This Senate resolution re-established the SCIA. The Committee was originally created in the early nineteenth century, but disbanded in 1946 when Indian affairs legislative and oversight jurisdiction was vested in subcommittees of the Interior and Insular Affairs Commission of the House and Senate. The Committee became permanent in 1984. Its jurisdiction includes studying the unique issues related to Indian and Hawaiian peoples and proposing legislation to deal with such issues – issues which include but are not limited to Indian education, economic development, trust responsibilities, land management, health care, and claims against the US. government.
1977 – Report of the American Indian Policy Review Commission. The Commission, established in 1975, issued its report in which it called for a firm rejection of assimilationist policies, increased financial assistance to the tribes, and a reaffirmation of the tribes’ status as permanent, self-governing institutions.
1978 – Indian Claims Commission rendered its final decision on the merits, land valuation, and offsets. The matter came before the ICC on a motion filed by the Sioux Tribes for “an order that no offsets, either payments on the claim or gratuities, be deducted” from the award in Docket 74-A (Sioux Nation v. United States, 42 Ind. Cl. Comm. 214 ).
After examining the history behind the Sioux Claim, the ICC found that:
The Indian Peace Commission presented the proposed treaty to the Sioux Bands in a series of councils held in the spring of 1868…..At these councils, after hearing an explanation of the terms of the treaties, the Sioux generally voiced these sentiments;… 2–they were unwilling to cede any of their lands [emphasis added]….
[I]t is clear that, based on the representations of the United States negotiators, the Indians cannot have regarded the 1868 Treaty as a treaty of cession. Nowhere in the history leading up to the treaty negotiations themselves is there any indication that the United States was seeking a land cession or that the Sioux were unwilling to consent to one. On the contrary, the evidence is overwhelming that the Sioux would never have signed the treaty had they thought they were ceding any land to the United States. (Sioux Tribe v. United States, 42 Ind. Cl. Comm. 214 )
1978 – Indian Child Welfare Act. This Congressional Act addressed the widespread practice of transferring the care and custody of Indian children to non-Indians. It recognized the authority of tribal courts to hear the adoption and guardianship cases of Indian children and established a strict set of statutory guidelines for those cases heard in state court. (As of 2009, coerced and forced adoptions of Indian children are rampent)
1978 – American Indian Religious Freedom Act. This Congressional Act promised to “protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise” traditional religions, “including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonial and traditional rites.” Although the enactment seemed to recognize the importance of traditional Indian religious practices, it contained no enforcement provisions.
1978 – US v. Wheeler, Supreme Court decision. The Court considered the question of whether the power to punish tribal offenders is “part of inherent tribal sovereignty, or an aspect of the sovereignty of the Federal Government which has been delegated to the tribes by Congress.” He concluded: “The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status.” In short, Indian nations were sovereign, but such sovereignty was limited and subject to Congressional whim.
1978 – Congress passesa special jurisdictional statute allowing the Court of Claims to review the Indian Claims Commission’s 1974 judgment de novo (Act of March 13, 1978 [92 Stat. 153]). The Black Hills Claim (Docket 74-B) was refiled in the Court of Claims under the 1978 jurisdictional statute as 148-78. The parties to Docket 148-78 thereafter stipulated that the Indian Claims Commission’s record in Docket 74-B could be used by the Court of Claims to decide the merits of the Black Hills Claim.
1979 – Court of Claims hearsthe merits of the Black Hills Claim de novo, and affirmed the Indian Claims Commission’s 1974 judgment (United States v. Sioux Nation of Indians, 220 Ct. Cl. 442, 601 F2d 1157)-
1980 – Court of Claims remanded Docket 74-A to its trial division (United States Claims Court), since the life of the Indian Claims Commission terminated in 1978 and all pending cases in the ICC were transferred to the Court of Claims. The Claims Court determined on remand that the only issue remaining in the case concerned the amount of offsets to be allowed against the $43,949,700 land valuation award. The United States made an offer to the tribal claims attorneys (Lazarus/Sonosky/Payne) in 1978 to settle the offset issue in docket 74-A for $4,200,000. The attorneys accepted the offer with conditions. The conditions were rejected by the United States, but the original offer was left open. The claims attorneys subsequently recommended acceptance of the offer to the Sioux tribes. See Cheyenne River Sioux Tribe v. United States, 806 F.2d 1046 (Fed. Cir. 1986). The Sioux tribes rejected the offer and demanded (among other things) the return of all federal lands to the 48 million acre area.
1980 – Supreme Court affirmsthe 1979 judgment of the Court of Claims (United States v. Sioux Nation of Indians, 488 US 371 ). The Docket 74 Sioux were awarded $102 million for Black Hills land ($17.1 million in principle and $85 million in simple interest from 1877 to 1980), and $3 million for the placer gold and three rights of ways. (Note: The Court of Claims subsequently awarded the claims attorneys [Lazarus/Sonosky/Payne] 10 percent of the final $105 million judgment as attorney’s fees.)
The Supreme Court of the United States agreed that the “sale” of the Black Hills had not been conducted legally. It refused, however, to return the land to the Lakota people and ordered them to accept belated financial compensation instead.
The Committee observed: “The facts are, as the Commission found, that the United States disarmed the Sioux and denied them their traditional hunting areas in an effort to force the sale of the Black Hills. Having violated the 1868 Treaty and having reduced the Indians to starvation, the United States should not now be in the position of saying that the rations it furnished constituted payment for the land which it took. In short, the Government committed two wrongs: first, it deprived the Sioux of their livelihood; secondly, it deprived the Sioux of their land. What the United States gave back in rations should not be stretched to cover both wrongs.”
The dissenting opinion suggests, post, at 2750-2751, that the factual findings of the Indian Claims Commission, the Court of Claims, and now this Court, are based upon a “revisionist” view of history. The dissent fails to identify which materials quoted herein or relied upon by the Commission and the Court of Claims fit that description. The dissent’s allusion to historians “writing for the purpose of having their conclusions or observations inserted in the reports of congressional committees,” post, at 2750, is also puzzling because, with respect to this case, we are unaware that any such historian exists.
A further word seems to be in order. The dissenting opinion does not identify a single author, nonrevisionist, neorevisionist, or otherwise, who takes the view of the history of the cession of the Black Hills that the dissent prefers to adopt, largely, one assumes, as an article of faith. Rather, the dissent relies on the historical findings contained in the decision rendered by the Court of Claims in 1942. That decision, and those findings, are not before this Court today. Moreover, the holding of the Court of Claims in 1942, to the extent the decision can be read as reaching the merits of the Sioux’ taking claim, was based largely on the conclusive presumption of good faith toward the Indians which that court afforded to Congress’ actions of 1877.
1980 – Bradley Bill (Senator Bill Bradley, D-NJ). The prime mover behind the Bill was a young Lakota man named Gerald Clifford. Unfortunately, a non-Indian named Phil Stevens (a retired millionaire) claiming to be Sioux from California attempted to introduce a Bill of his own and muddied the waters enough that Bradley withdrew his sponsorship and the Bradley Bill died a quiet death. Under the Bradley Bill the tribes of the Great Sioux Nation would get 1.3 million acres of the 7.5 million acres returned to them. The 1.3 million acres would be strictly U. S. National Forest Service land. No municipalities, no state owned land, no private land or no federal monument lands would have been threatened. Of course, the local media played it to the hilt. “Sioux seek return of the Black Hills” was a common headline. This frightened a lot of non-Indians even though the headline was clearly wrong. Sentiment did turn against the Indians.
In the meantime, South Dakota’s elected officials and the federal government itself believes that all claims to the land were extinguished when the money was awarded. In a way its like telling the Indians, “Here is money for your house and whether you want to sell it or not, here is the money and the house is now ours.”
1982 – Congress abolishes the Indian Court of Claims.
1983 – Dennis Banks, the AIM leader, still under indictment in South Dakota for 1973 Wounded Knee occupation, takes refuge on the Onondaga Reservation in New York State. In 1984 Banks surrenders to officials in South Dakota; he is sentenced to three years in prison
1985 – On February 22, 1985, the Claims Court, without considering the remaining three motions for summary judgment, entered an order implementing the government’s settlement offer of $39,749,000 as its final judgment and terminated Docket 74-A (Sioux Tribe of Indians v. United States, 8 Cl. Ct. 80 ). The court concluded that Docket 74-A had become “an uncontrolled quagmire” and that “[t]he simple fact that four of the reservation tribes are refusing to accept any settlement or award of this court, which does not include the return of their land, is indicative of the plaintiffs [sic] refusal to comprehend, after 35 years of litigation, that this Court can only award money judgments.”
1987 – Senator Bradley reintroduced the “Bradley Bill” as S. 705 in the One Hundredth Congress. A Companion bill H.R. 1506, was introduced in the U.S. House of Representatives by Congressman James Howard of New Jersey. No hearings were held on S. 705 or HR 1506.
1990 – Congressman Matthew Martinez of California introduced the Black Hills Bill (HR 5680) developed by the Grey Eagle Society in the One Hundred and First Congress. The bill was an amended version of the Bradley Bill, S. 705. The bill was referred to the committee on Interior and Insular Affairs. No hearing was held on the bill. Congressman Martinez was also one of the cosponsors of the House version of the Bradley Bill (HR 1506) in 1987.
1994 – President Clinton invites leaders of all 547 federally recognized American Indian and Alaska native tribes to the White House, the first-ever meeting of its kind. Tribal leaders and U.S. officials identify issues for follow-up conferences.
1996 – Congressman Bill Barrett of Nebraska introduced HR 3595 in the US House of Representatives. The bill proposed to pay out the Santee Sioux Tribe of Nebraska’s “proportionate share” of Docket 74-A.
A Hearing was held on HR 3595 on August 1, 1996, before the Resources Subcommittee on Native American and Insular Affairs. Congressman Barrett and Santee Sioux Tribal Chairman Arthur “Butch” Denny submitted written testimony in support of the bill. Deborah J. Maddox, director of the Office of Tribal Services, US Department of the Interior, submitted written testimony indicating that the Interior Department had no position on the bill “because it affected eight other tribes.”
Johnson Holy Rock of the Oglala Sioux Tribe submitted written testimony on behalf of the Oglala Sioux Tribe opposing the bill, and testified against the bill at the hearing. Others testifying at the hearing against the bill were John Yellowbird Steele, President of the Oglala Sioux Tribe, Greg Bourland, Chairman of the Cheyenne River Sioux Tribe; and William Kindle, President of the Rosebud Sioux Tribe. The bill died in Committee.
1998 – Docket 74-A: The larger Sioux tribes continue to reject the cram down of the final $40,245,807.02 judgment in Docket 74-A, demanding instead that the United States return all federal lands to the Sioux tribes in the 48 million acre area.
Docket 74-B: The Anti Indian forces in South Dakota (such as the Open hills Association organized by Senator Tom Daschle) still continue to oppose land restoration proposals to settle Docket 74-B.
As of April 8, 1998, the total award for both the 1868 Treaty claim (Docket 74-A) and the Black Hills Claim (Docket 74-B, aka Docket 148-78), according to the US Department of Interior’s Division of Trust Fund Services, is as follows:
1. Docket 74-A……………. $67,073,267.88
2. Docket 148-78……….. $473,161,163.29
U.S. Code Cong. & Admin. News 1974, p. 6115. See also R. Billington, Introduction, in National Park Service, Soldier and Brave xiv (1963):
The Indians suffered the humiliating defeats that forced them to walk the white man’s road toward civilization. Few conquered people in the history of mankind have paid so dearly for their defense of a way of life that the march of progress had outmoded . . . In three tragic decades, between 1860 and 1890, the Indians suffered the humiliating defeats that forced them to walk the white man’s road toward civilization. Few conquered people in the history of mankind have paid so dearly for their defense of a way of life that the march of progress had outmoded. This epic struggle left its landmarks behind, as monuments to the brave men, Indian and white, who fought and died that their manner of living might endure.
2000 – Head of the Bureau of Indian Affairs admits to crimes, “Remarks of Kevin Gover, Assistant Secretary–Indian Affairs, Department of the Interior, at the Ceremony Acknowledging the 175th Anniversary of the Establishment of the Bureau of Indian Affairs.” Full text at Web site: http://www.doi.gov/bia/as-ia/175gover.htm.
“Immediately upon its establishment in 1824, the Office of Indian Affairs was an instrument by which the United States enforced its ambition against the Indian nations. As the nation expanded West, the agency participated in the ethnic cleansing that befell the western tribes. War begets tragedy, but the deliberate spread of disease, the decimation of the bison herds, the use of alcohol to destroy mind and body, and the cowardly killing of women and children made for tragedy on a scale so ghastly that it cannot be dismissed as merely the inevitable consequence of the clash of competing ways of life. After the devastation of tribal economies, the BIA set out to destroy all things Indian by forbidding the speaking of Indian languages, prohibiting traditional religious activities, outlawing traditional government, and making Indians ashamed of who they were. Worst of all, the BIA committed these acts against the children entrusted to its boarding schools. The trauma of shame, fear, and anger has passed from one generation to the next, and manifests itself in the rampant alcoholism, drug abuse, and domestic violence that plague Indian country. The BIA expresses its profound sorrow for these wrongs, extends this formal apology to Indian people for its historical conduct, and makes promises for its future conduct. (TD)
2007 – Unilateral withdrawal of the Lakotah from the Treaties of 1851 and 1868 as permitted under the 1969 Vienna Convention on the Law of Treaties, of which, the United States is a signatory.
Now back to that ridiculous ruling…
University President Hank Brown reviewed the reports of the Investigative Committee, the SCRM, and the P&T Committee. He concurred with the P&T Committee’s observation that Churchill engaged in conduct that fell below the minimum standard of professional integrity. He concurred with two members of the P&T Committee that Churchill should be dismissed because Churchill’s research misconduct had been severe and deliberate, and the misconduct seriously impacted the University’s academic reputation. He then recommended that the Board of Regents dismiss Churchill.
In accordance with Regent Policy 5-I, § IV, Churchill requested a hearing before the Regents. Prior to the hearing, he submitted comprehensive written argument. The Regents conducted a hearing and considered the argument, reports, and recommendations. The Regents dismissed Churchill by a vote of eight to one.
II. Procedural History Churchill brought several claims against the University, the
Board of Regents, and the Regents in their individual and official capacities, alleging, inter alia, that they had violated 42 U.S.C. §
1983 by launching an investigation of his academic works and for terminating him, all in retaliation for his having exercised his right to free speech.
Prior to trial, the parties streamlined the proceedings by stipulating that the University would waive its immunity under the Eleventh Amendment to the United States Constitution, allowing Churchill to maintain direct claims against the University and its Regents. In exchange, Churchill agreed to allow the University and the Regents to assert any defenses that would have been applicable to any of the University’s officials or employees acting in their official capacities. One of those defenses raised by individuals acting in their official capacities was quasi-judicial immunity. Additionally, in the trial management order, the parties agreed that the University and the Regents preserved the defense of quasi- judicial immunity and that argument on this defense would be presented after the jury reached a verdict.
At trial Churchill advanced only two claims: that the investigation and termination (1) were unlawful adverse employment actions in violation of his rights under 42 U.S.C. §
1983 and (2) were in retaliation of his exercise of First Amendment rights. The claims were essentially identical in wording and counsel did not distinguish between them, arguing in opening and closing that the Regents “were always going to fire [Churchill].”
The trial lasted four weeks. At the conclusion of the evidence, the University moved for a directed verdict on Churchill’s unlawful investigation claim, arguing that the investigation was not an adverse employment action under 42 U.S.C. § 1983. Churchill argued that the jury should determine whether the investigation constituted an adverse employment action. The district court granted the University’s motion for a directed verdict.
The jury deliberated on Churchill’s claim that the University unlawfully terminated him for his First Amendment speech. In finding in favor of Churchill, the jury concluded that “the Board of Regents of the University of Colorado use[d] [Churchill’s] protected speech activity as a substantial or motivating factor in the decision to discharge [him] from employment,” and that the termination harmed Churchill.
In addition, the jury found that the University and the Regents had not shown by a preponderance of the evidence that Churchill would have been dismissed for reasons other than his exercise of free speech. However, the jury awarded Churchill $0 in past noneconomic damages and only $1 in past economic loss.
Having preserved the defense of quasi-judicial immunity, the University filed a post-trial motion for judgment as a matter of law claiming that the University and the Board of Regents were immune from Churchill’s second claim. Churchill filed a post-trial motion for reinstatement to his position.
In a thoughtful and well-reasoned written order, the trial court granted the University’s motion, finding that the Board of Regents performed a judicial function and acted in a quasi-judicial capacity when it terminated Churchill’s employment, entitling it and the University to quasi-judicial immunity.
The trial court further ruled that Churchill was not entitled to either reinstatement or front pay.1 It denied his motion for 1 Front pay would consist of pay from the entry of judgment to the date of reinstatement, or, if there was a diminution in earning 10
reinstatement because that remedy would “disregard the jury’s implicit finding that Professor Churchill has suffered no actual damages that an award of reinstatement would prospectively remedy.” Additionally, the trial court determined that reinstatement was inappropriate because it would undermine the University’s ability to define the standards of scholarship. Finally, the trial court concluded that on the basis of the evidence adduced at trial regarding Churchill’s hostility toward the University, reinstatement was not likely to result in a “productive and amicable working relationship” between the University and Churchill.
Churchill now argues on appeal that the trial court erred by (1) granting the University’s motion for a directed verdict because he had presented sufficient evidence from which the jury could determine that the University’s actions were an adverse employment action; (2) granting the University’s motion for judgment as a matter of law because the Regents were not entitled capacity, until Churchill’s earning capacity had fully recovered.
Black v. Waterman, 83 P.3d 1130, 1133 (Colo. App. 2003). 11
to quasi-judicial immunity; and (3) denying his motion for reinstatement.
We affirm the trial court’s judgment.
A. Quasi-Judicial Immunity Churchill advances several arguments to support his
contention that the trial court improvidently granted the University and the Regents quasi-judicial immunity. He contends that the University and the Regents failed to satisfy four specific conditions of immunity: that the Regents were not an independent body of hearing officers; that the Regents evinced bias which barred them from considering his discipline; that there is no adequate means of reviewing the Regents’ decision; and that quasi-judicial immunity was not available as a defense. We reject each contention in turn.
We review a district court’s conclusion regarding immunity de novo. See Peper v. St. Mary’s Hosp. & Med. Ctr., 207 P.3d 881, 888 (Colo. App. 2008); see also Gagan v. Norton, 35 F.3d 1473, 1475 (10th Cir. 1994) (questions of absolute immunity reviewed de novo). Whether the Board of Regents had quasi-judicial immunity (and
therefore, absolute immunity) is a question of law to be determined by the court, not the jury. See Scott v. Hern, 216 F.3d 897, 908 (10th Cir. 2000) (determination of absolute immunity reviewed de novo); see also Miller v. Davis, 521 F.3d 1142, 1145 (9th Cir. 2008) (“Whether a public official is entitled to absolute immunity is a question of law . . . .” (quoting Goldstein v. City of Long Beach, 481 F.3d 1170, 1172 (9th Cir. 2007))); Brewer v. Blackwell, 692 F.2d 387, 390 (5th Cir. 1982) (“whether an official is protected by judicial immunity is a question of law”).
We begin our analysis with a discussion of general precepts concerning quasi-judicial immunity.
Absolute immunity protects officials whose “special functions or constitutional status requires complete protection from suit.” State Bd. of Chiropractic Exam’rs v. Stjernholm, 935 P.2d 959, 968 (Colo. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). Absolute immunity typically provides judges and prosecutors with a complete defense “to preserve their ‘independent decision-making and to prevent undue deflection of attention from public duties.’” Id. (quoting Higgs v. Dist. Court, 713 P.2d 840, 850
(Colo. 1985)). Quasi-judicial activity is defined as “[o]f, relating to, or involving an executive or administrative official’s adjudicative acts.” Hoffler v. Colorado Dep’t of Corr., 27 P.3d 371, 374 (Colo. 2001) (quoting Black’s Law Dictionary 1258 (7th ed. 1999)). “‘Quasi-judicial’ decision making, as its name connotes, bears similarities to the adjudicatory function performed by courts.” Widder v. Durango Sch. Dist. No. 9-R, 85 P.3d 518, 527 (Colo. 2004).
In determining when an administrative official’s actions are quasi-judicial, “[t]he central focus, in our view, should be on the nature of the governmental decision and the process by which that decision is reached.” Id. (quoting Cherry Hills Resort Dev. Co. v. City of Cherry Hills Vill., 757 P.2d 622, 627 (Colo. 1988)). When a governmental decision is likely to affect the rights and duties of specific individuals, and the government agents reach the decision by applying preexisting legal standards or policy considerations to present or past facts, the governmental body is generally acting in a quasi-judicial capacity. Sherman v. City of Colorado Springs Planning Comm’n, 763 P.2d 292, 295-96 (Colo. 1988).
1. The Cleavinger Conditions We first address and reject Churchill’s contention that the trial
court erred in granting the University and the Board of Regents quasi-judicial immunity because those officials failed to satisfy six specific conditions for immunity under Cleavinger v. Saxner, 474 U.S. 193 (1985).
In Cleavinger, inmates in a federal correctional facility were instrumental in a work stoppage that protested a series of prison deaths which the inmates believed to be racially motivated. They were placed in administrative segregation and brought before the facility’s discipline committee. The committee ordered that Saxner forfeit eighty-four days of good time and be placed in administrative detention. Ultimately, Saxner appealed, arguing that his Fifth Amendment due process rights had been violated. On appeal, the Seventh Circuit Court of Appeals concluded that the committee had absolute immunity. Saxner v. Benson, 727 F.2d 669 (7th Cir. 1984). The Supreme Court disagreed and determined that the committee had only qualified immunity because it was subordinate to the warden, subject to the pressure of employment, and lacked
independence. The Court relied in part upon Butz v. Economou, 438 U.S. 478, 513 (1978), a decision which granted quasi-judicial immunity to officials in the Department of Agriculture who sustained the revocation of a commodity futures merchant’s registration. Butz discussed several factors that were useful in analyzing whether the officials’ work was functionally equivalent to the judicial process. Cleavinger addressed those factors:
[I]n Butz, the Court mentioned the following factors, among others, as characteristic of the judicial process and to be considered in determining absolute as contrasted with qualified immunity: (a) the need to assure that the individual can perform his functions without harassment or intimidation; (b) the presence of safeguards that reduce the need for private damages actions as a means of controlling unconstitutional conduct; (c) insulation from political influence; (d) the importance of precedent; (e) the adversary nature of the process; and (f) the correctability of error on appeal.
Cleavinger, 474 U.S. at 201-02 (emphasis added).2
2 Churchill contends that Cleavinger clarified Butz. We are unable to find any language in Cleavinger that clarifies Butz. However, we note that Cleavinger did not apply all of the factors mentioned in
Butz as indicia of the judicial process. 16
We perceive nothing in Cleavinger that requires the strict application of the Butz factors in determining whether a board or governmental body should be granted absolute immunity.
Indeed, our own supreme court has used other factors in determining whether the actions of government officials are functionally equivalent to a judge’s role and therefore should be cloaked with absolute immunity. See Cherry Hills, 757 P.2d at 627- 28 (focusing upon the process by which a governmental decision is reached).
We do not interpret Colorado law to be at odds with Cleavinger. Instead we view Cleavinger and Butz as prescribing nonexclusive standards which are useful in analyzing quasi-judicial actions. Cherry Hills explained the essence of quasi-judicial action and three defining factors which must exist in order for a tribunal to act in a judicial or quasi-judicial capacity:
[T]his court . . . outlined three factors of quasi-judicial action . . . : (1) a state or local law requiring that the governmental body give adequate notice before acting on the matter; (2) a state or local law requiring the governmental body to conduct a public hearing, pursuant to notice, at which concerned citizens may be heard and present evidence; and (3) a state or local law requiring the governmental body to make a determination based
upon an application of legal criteria to the particular facts before it. [Snyder v. City of Lakewood, 189 Colo. 421, 425, 542 P.2d 371, 374 (1975)].
Our decision in Snyder proceeded from a recognition that the essence of quasi-judicial action lies not so much in the specific characteristics of the decision-making body as in the nature of the decision itself and the process by which that decision is reached.
Cherry Hills, 757 P.2d at 626. Nothing in Cleavinger suggests to us that the factors
mentioned in Butz should be applied as a strict litmus test. Butz made clear that there should be present features of the judicial process which “tend to enhance the reliability of information and the impartiality of the decisionmaking process.” 438 U.S. at 512. “We think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages.” Id. at 512-13 (emphasis added).
Here, the trial court determined that the process employed by the University and the Regents shared enough of the features of traditional judicial process that for purposes of immunity, it was functionally equivalent to the judicial process. We agree.
The process employed by the Regents incorporates many of the characteristics of the judicial process. The Board of Regents is empowered by the Colorado Constitution and by statute to enact the laws governing the University of Colorado. Colo. Const. art. VIII, § 5(2); § 23-20-111, C.R.S. 2010. The Regents appoint and can fire the president of the University as well as the chairman and vice chairman. Colo. Const. art. IX, § 13. The entire process employed by the Regents followed strict guidelines under laws promulgated by them, afforded adequate notice of public hearings, and invoked an adversary process in which Churchill was represented by counsel and permitted to introduce evidence, examine witnesses, and make argument. We consider the process and the nature of the Board’s actions to satisfy the standards under both Colorado law and Butz and are convinced that the grant of absolute immunity was appropriate.
Colorado courts have often afforded absolute immunity to administrative officials acting in a quasi-judicial role. See Stjernholm, 935 P.2d at 969 (Chiropractic Board members immune from 42 U.S.C. § 1983 claim when performing quasi-adjudicative
functions such as licensing and conducting professional discipline hearings); State v. Mason, 724 P.2d 1289, 1291 (Colo. 1986) (members of the Parole Board, a Colorado administrative agency, entitled to quasi-judicial immunity when granting, denying, or revoking parole). Colorado law comports with the grant of quasi- judicial immunity in other jurisdictions.
In Gressley v. Deutsch, 890 F. Supp. 1474 (D. Wyo. 1994), a professor publicly complained after the university transferred him to another department. Id. at 1480. The university’s president then initiated proceedings to terminate the professor for several reasons, including insubordination. Id. at 1481. After hearing two weeks of testimony, the faculty committee recommended dismissal. Id. The professor appealed the decision to the board of trustees, which sustained the committee’s dismissal recommendation. Id. at 1481-82. The professor then brought claims against each of the trustees individually under 42 U.S.C. § 1983, alleging that they unconstitutionally discharged him in retaliation for his exercise of free speech. Id.
The trial court found that the trustees had quasi-judicial immunity because the board of trustees’ sole purpose was to sit as an appellate body to review the faculty committee’s decision. Id. at 1491. Moreover, sufficient safeguards existed to control unconstitutional conduct, including the requirement that the committee keep a verbatim record and issue a written decision. Id. Finally, the trustees were specifically limited to the record before them in making their decision. Id.
Here, unlike the prison officials in Cleavinger, the Board of Regents also acted as an appellate body when it reviewed the University President’s dismissal recommendation based on the various committee reports. The Regents were not subject to employment pressures which caused the court concern in Cleavinger. Also, the Laws and Policies of the Board of Regents afforded Churchill the same protections as those in Gressley, among many others.
We conclude that the nature of the decision reached by the University and its Regents, and the process by which that decision was reached, shared enough characteristics with the judicial
process to warrant absolute immunity from liability. We perceive no error in the trial court’s analysis which looked to the nature and process of the University and the Regents’ activities in concluding that there was enough functional similarity between their actions and the judicial process to justify the application of quasi-judicial immunity.
2. The Process Assured Independence of the Reviewing Officials Churchill contends that the Regents were not an independent,
professional body of hearing officers and that the Regents lacked political independence. We disagree.
The Colorado Constitution created the University of Colorado as a state institution of higher education. Colo. Const. art. VIII, § 5. The Board of Regents is empowered to “enact laws for the government of the University.” § 23-20-112(1), C.R.S. 2010; see also Colo. Const. art. VIII, § 5(2) (Board of Regents “shall have the general supervision of [the University of Colorado] and the exclusive control and direction of all funds”). There are nine regents who are each elected to a six-year term. Colo. Const. art. IX, § 12. The regents are limited to two six-year terms. Colo. Const. art. XVIII, §
11(1). As an independent and elected board, the Regents are not part of the executive or legislative branches, which assures that they can conduct their functions without harassment or intimidation.
Pursuant to this authority, the Board of Regents enacted the Laws. The Laws include the grounds and procedures for dismissing a tenured member of the University’s faculty. For a tenured faculty member to be removed under the Laws:
A faculty member may be dismissed when, in the judgment of the Board of Regents and subject to the Board of Regents constitutional and statutory authority the good of the university requires such action. The grounds for dismissal shall be demonstrable professional incompetence, neglect of duty, . . . or other conduct which falls below minimum standards of professional integrity.
Laws art. 5.C.1. The Laws specify that “[n]o member of the faculty shall be
dismissed except for cause and after being given an opportunity to be heard.” Laws art. 5.C.2(A)(1). If the University’s administration contemplates a faculty member’s dismissal, the faculty member may request a hearing before the P&T Committee. Laws art.
5.C.2(B). At such a hearing, the faculty member “shall be permitted 23
to have counsel and the opportunity to question witnesses.” Laws art. 5.C.2(B). The University must prove its case for dismissal by clear and convincing evidence. Regents Policy 5-1 § III(B)(2)(n).
We are not persuaded by Churchill’s suggestion that because the Regents are elected officials, they were under extreme political pressure to resolve any dispute against him. Simply because Regents are elected does not defeat impartiality. Elected city council members have been entitled to absolute immunity for their decision to impeach the city’s mayor because they were acting in a judicial capacity. Brown v. Griesenauer, 970 F.2d 431, 439 (8th Cir. 1992).
Brown recognized that elected officials were “not insulated from political influence,” and the “[i]mpeachment proceedings by their very nature are likely to be extremely controversial and fiercely political.” Id. at 438-39. However, the mayor had been entitled to “extensive procedural safeguards” including the right to notice, the right to be represented by an attorney, the right to conduct discovery, the right to cross-examine witnesses, and the right to judicial review, among others. Id. at 438.
The dismissal process here afforded Churchill extensive procedural safeguards. A comprehensive record was available for review by the Regents, and Churchill was permitted to make argument through counsel, citing evidence. Regents testified that they voted for Churchill’s dismissal only after extensively reviewing the record and the recommendations of the P&T Committee, and examining details of Churchill’s research misconduct.
The process by which the University and the Regents reached their decision also shares characteristics with the judicial process because it established a multi-step review which provided independent investigation and evaluation by peers, independent faculty members, and elected officials.
In a similar case, the Colorado Supreme Court concluded that a Department of Corrections staff discipline proceeding was quasi- judicial. Hoffler, 27 P.3d at 374-75. The court noted that the proceedings were adversarial in nature, the employee was entitled to be represented by counsel, the employee was allowed to cross- examine adverse witnesses, and the hearing officer was required to make written findings of fact and conclusions of law. Id.
The process here afforded Churchill by the University and the Laws and Policies of the Board of Regents included those safeguards found in Hoffler and more: • The investigation of the allegations of Churchill’s research
misconduct and the dismissal process involved twenty-five faculty members (six Inquiry Committee members, five Investigative Committee members, nine SCRM members, and five P&T Committee members);
• Dismissal was only determined upon proof of cause, including clear and convincing evidence of “conduct which [fell] below minimum standards of professional integrity.” Regents Policy 5- 1, § I;
• Churchill received written notification of the intent to dismiss and was granted the right to contest it with the aid of counsel. Id. at 5-1, § III(A);
• Churchill exercised his right to request that specific P&T Committee members be excluded. Id. at 5-1, § III(B)(2)(b);
• Churchill exercised his right to be represented by counsel at various stages of the proceedings. Id. at 5-1, § III(B)(1)(b)(2)(i);
• Churchill was granted the right to have fellow faculty members sit as the members of the P&T Committee. Id. at 5-1, § II(A); • Churchill exercised his right to cross-examine witnesses. Id. at
5-1, § III(B)(2)(p); • Churchill presented witnesses, including expert witnesses. Id. at
5-1, § III(B)(2)(o); • Churchill was granted the right to present opening statements.
Id. at 5-1, § III(B)(2)(r); • Churchill exercised his right to present both oral and written
closing arguments. Id.; • The University was required to demonstrate grounds for
Churchill’s dismissal by clear and convincing evidence. Id. at 5-
1, § III(B)(2)(n); • Churchill had the benefit of a written report prepared by the P&T
Committee which contained findings of fact, conclusions, and
recommendations. Id. at 5-1, § III(C)(1); • Churchill exercised his right to object to the P&T Committee’s
findings and recommendations. Id. at 5-1, § III(C)(2); 27
• Churchill had the right to file a written report with the Board of Regents regarding the University President’s recommendation for dismissal. Id. at 5-1, § IV;
• Churchill demanded and was granted under the Laws a hearing before the Board of Regents in which he was represented by counsel who presented and argued his case. Id.;
• The Board of Regents’ decision was limited to the record of the case and the transcript of the proceedings before the P&T Committee. Id. (Here, Churchill was afforded both a transcribed record and a video record of proceedings.);
• The Board of Regents was required to take action on the President’s recommendation in a public meeting. Id.
These important procedures and rights were a basis for the
trial court’s conclusion that the Regents’ process closely resembled
the judicial process. The Regents applied preexisting policies and
policy considerations to Churchill’s case. See Hoffler, 27 P.3d at
374 (department of corrections application of administrative
regulation in staff discipline proceedings was quasi-judicial);
Widder, 85 P.3d at 527-28 (school district’s decision applying 28
conduct and discipline code in employee termination case to past or present facts was quasi-judicial).
3. Allegations of Bias Churchill next contends that the Regents evidenced bias
against him, indicating that they were not impartial arbiters and therefore ought not to be cloaked with immunity. He argues that if the Regents had been judges, they would have been required to recuse themselves under one or more of the Canons of Judicial Conduct.3 He cites the following4 as evidence of bias requiring
3 Although they are similar, Churchill cites the ABA Model Code of Judicial Conduct (2004), rather than the Colorado Code of Judicial Conduct, as providing a basis for recusal.
• “A judge shall uphold the integrity and independence of the judiciary.” ABA Model Code of Judicial Conduct Canon 1.
• “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” Id. Canon 2.
• “A judge shall perform the duties of judicial office impartially and diligently.” Id. Canon 3.
4 Churchill also claims that Professor Marianne Wesson sent an e- mail on February 28, 2005, claiming, “[T]he rallying around Churchill reminds me unhappily of the rallying around OJ Simpson and Bill Clinton and now Michael Jackson and other charismatic male celebrity wrongdoers . . . .” She also called Churchill an “unpleasant (to say the least) individual.” However, Professor Wesson was not a Regent. Nor are we persuaded that Professor Wesson evinced such bias that the investigation of Churchill was
somehow tainted. The P&T Committee specifically addressed this 29
recusal during the investigation of his academic works and dismissal: • Regents Thomas Lucero and Jerry Rutledge said in February
2005 that Churchill should be fired. • Regent Michael Carrigan told a New York Times reporter, “We can
fire Churchill. We just can’t fire him tomorrow.” • Chancellor DiStefano described the tenor of the emergency
meeting of the Board of Regents on February 3, 2005 as explosive. At the emergency meeting, DiStefano called Churchill’s essay the “most offensive, the most appalling political expression,” and proposed to launch and oversee an
issue in its report. It provided that three of the Investigative Committee members testified that Professor Wesson was fair and unbiased and made no “predetermination.” It also noted that the “Investigative Committee hearing transcripts suggest a generally cooperative approach to getting the job done” between Professor Wesson and Churchill. The P&T Committee determined that, for this and other reasons, Churchill had not met his burden of proving lack of due process by a preponderance of the evidence. Churchill does not point to any specific action taken by Professor Wesson during the proceedings that demonstrates bias.
investigation of Churchill’s work to see if there was cause for
dismissal. • The Board of Regents unanimously adopted a resolution
supporting an investigation. • Regent Patricia Hayes agreed that she voted in favor of the Board
of Regents’ resolution authorizing DiStefano to investigate Churchill’s academic works to see if there were grounds for dismissal.
Churchill misconstrues the purpose and scope of quasi- judicial immunity. The protection essential to independence and discretion by the University and the Regents would be gone if they were subject to the intimidation of a lawsuit seeking to undo every decision to terminate a faculty member. See Butz, 438 U.S. at 516. One who asserts that he lost a suit because the judge was biased may have a remedy under C.R.C.P. 106 seeking to reverse an abuse of discretion, but he does not have the right to sue the judge in a civil suit for damages.
Administrative officials like the Regents and the P&T Committee can be expected to make unpopular decisions regarding
research misconduct by professors and therefore become subject to claims of bias. This ought not deprive investigating officials of immunity. Decisions to discipline professors who do not meet standards of integrity or scholarship will no doubt be unpopular and disputed. But such self-policing does not indicate bias and it ought not subject faculty and the Regents to liability for enforcement. Otherwise academic freedom would not be preserved. “[T]he only way to preserve academic freedom is to keep claims of academic error out of the legal maw.” Feldman v. Ho, 171 F.3d 494, 497 (7th Cir. 1999). Thus, even against claims of bias, a judge or an official performing quasi-judicial functions can be immune from suit. Cleavinger recognized the “need to assure that the individual can perform his functions without harassment or intimidation.”
474 U.S. at 202. The University’s governance appears to be designed to permit the regulation of integrity and academic standards.
Furthermore, the record before us does not establish the bias Churchill claims. At trial, Regent Lucero denied that he had ever called for Churchill to be fired. He also said that his decision to
dismiss Churchill was based on the reports of the Investigative Committee, the SCRM, and the P&T Committee, all of which had agreed that Churchill committed research misconduct. He also seriously considered President Brown’s recommendation for dismissal since Brown was the day-to-day leader of the University.
Any arguable bias Regent Rutledge may have injected into the investigative process is eclipsed by the fact that he was no longer a member of the Board of Regents when it voted in favor of dismissing Churchill.
Although the Regents passed the resolution supporting an investigation of Churchill’s academic works, Chancellor DiStefano testified that after the emergency Board of Regents meeting he was never pressured by any Regent to reach a certain outcome regarding Churchill’s speech. Although Churchill has pointed to evidence of alleged bias on the part of three voting Regents, the Regents voted to dismiss him by a vote of eight to one.
Regents Hyble and Carrigan also testified that their votes to dismiss were based in part on the fact that the faculty who
investigated Churchill (his peers) unanimously concluded that he had engaged in research misconduct.
We are likewise not persuaded that Chancellor DiStefano demonstrated such bias as to warrant his recusal. We note that Chancellor DiStefano is not a Regent and was not entitled to vote. He harshly criticized Churchill’s essay at the emergency Board of Regents meeting on February 3, 2005. Yet after conducting an investigation with Dean Getches and Dean Gleason, he announced that Churchill’s statements were protected by the First Amendment. Although Chancellor DiStefano later issued a notice of intent to recommend the dismissal of Churchill, the record indicates that by that time, the Chancellor was basing his recommendation for dismissal on the Investigative Committee’s report and the SCRM recommendations. He highlighted the fact that both the report and the recommendation found that Churchill had engaged in three types of research misconduct — plagiarism, fabrication, and falsification that constituted “a pattern of serious, repeated and deliberate research misconduct fall[ing] below minimum standards of professional integrity.” Additionally, Chancellor DiStefano stated
that Churchill “repeatedly failed to acknowledge any error or to take any responsibility for any of the research misconduct.” Therefore, there is no record support for the conclusion that the notice was the product of bias.
In a similar case, the Seventh Circuit Court of Appeals provided some illuminating commentary:
A university’s academic independence is protected by the Constitution, just like a faculty member’s own speech. Concurring in Sweezy v. New Hampshire, 354 U.S. 234, 263, 77 S.Ct. 1203, 1 L.Ed.2d 1311 (1957), Justices Frankfurter and Harlan referred to the four freedoms of a university: “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study.” Although statutes have curtailed some of these freedoms (for example, no university today may use racial criteria to select its faculty), [Professor] Feldman does not rely on any particular statute, as opposed to the all- purpose 42 U.S.C. § 1983 that provides a hook for enforcing the Constitution against state actors. Yet the Constitution does not commit to decision by a jury every speech-related dispute. If it did, that would be the end of a university’s ability to choose its faculty — for it is speech that lies at the core of scholarship, and every academic decision is in the end a decision about speech.
Feldman, 171 F.3d at 495-96 (emphasis in original). That a university is zealous in policing the academic standards of its faculty does not demonstrate bias against a noncompliant faculty
member so much as it demonstrates a bias in favor of compliance with the rules of academia.
4. Adequacy of C.R.C.P. 106 Review Churchill also contends that the process employed by the
University and the Regents must be subject to adequate appellate review. He argues that C.R.C.P. 106 review is limited and inadequate.
We are unaware of any Colorado decision which requires full appellate review of quasi-judicial action. C.R.C.P. 106(a)(4) review provides for district court relief “[w]here any governmental body or officer or any lower judicial body exercising judicial or quasi-judicial functions has exceeded its jurisdiction or abused its discretion, and there is no plain, speedy and adequate remedy otherwise provided by law.” The district court’s review is limited to a determination of whether the body or officer exceeded its jurisdiction or abused its discretion based on the evidence in the record. C.R.C.P. 106(a)(4)(I); see also Widder, 85 P.3d at 526-27 (“Abuse of discretion means that the decision under review is not reasonably supported by any competent evidence in the record.”). C.R.C.P. 106(a)(4) does not
provide for a new evidentiary hearing at the district court level. Widder, 85 P.3d at 526. Nevertheless, Widder concluded that a school board’s decision to terminate an employee was a quasi- judicial decision that was “properly reviewed under Rule 106(a)(4).” Id. at 528. We note that here, Churchill has asserted that some Regents were biased and lacked independence. These allegations clearly could have been reviewed in a Rule 106 appeal because they implicate an abuse of discretion, if proven.
We also reject Churchill’s argument that People in Interest of B.C., 981 P.2d 145, 149 n.4 (Colo. 1999), supports the proposition that C.R.C.P. 106 does not provide him with an adequate substantive method for challenging immunity. The cited footnote in B.C. simply highlights the general rule that “the rules of civil procedure are procedural and do not attempt ‘to abridge, enlarge, nor modify the substantive rights of any litigants.’” Id. (quoting Crowley v. Hardman Bros., 122 Colo. 489, 498, 223 P.2d 1045, 1049 (1950)). It does not call into question the adequacy of C.R.C.P. 106(a)(4) review, and Churchill does not otherwise cite support for this argument. See Biel v. Alcott, 876 P.2d 60, 64 (Colo.
App. 1993) (appealing party bears burden to provide supporting authority for contentions on appeal).
Churchill has cited no decision, and we have found none, standing for the proposition that a governmental body may not be afforded quasi-judicial immunity if its actions are only reviewable for an abuse of discretion. Nor does Cleavinger define the scope of factor “(f) the correctability of error on appeal.” See Cleavinger, 474 U.S. at 202. We conclude that C.R.C.P. 106(a)(4) review is sufficient for purposes of assuring that the University’s and the Regents’ actions were functionally equivalent to the judicial process.
The Board of Regents’ decision to terminate Churchill was properly reviewable under C.R.C.P. 106(a)(4). See Widder, 85 P.3d at 528 (school board’s decision to terminate employee properly reviewed under C.R.C.P. 106(a)(4)); Hellas Constr., Inc. v. Rio Blanco Cnty., 192 P.3d 501, 504 (Colo. App. 2008) (county’s determination of tax provision violation and imposition of administrative penalties reviewed under C.R.C.P. 106(a)(4)); see also Butz, 438 U.S. at 514 (“Those who complain of error in [quasi-judicial] proceedings must seek agency or judicial review.”).
5. Availability of the Defense We also reject Churchill’s suggestion that the defense of quasi-
judicial immunity was not available in this case to “entities.” Citing Kentucky v. Graham, 473 U.S. 159, 166 (1985),
Churchill argues that quasi-judicial immunity is not available to persons who are sued in their official capacities. As Kentucky v. Graham points out, in official-capacity actions, persons who are acting under color of state law have the ability to claim the defense of sovereign immunity under the Eleventh Amendment to the United States Constitution. Id. Of course, Kentucky v. Graham does not suggest that an entity such as the University is not permitted to claim immunity under the Eleventh Amendment. Churchill ignores his own stipulation that as part of the trial process, the University would be entitled to claim the defense of quasi-judicial immunity in exchange for dismissal of individuals and the ability of the University to assert any individual defenses the individuals could have asserted. Otherwise, he would be suing the University (which would seek immunity under the Eleventh Amendment), officials acting under color of state law (who could
also claim such immunity), and persons in their individual capacities (who might claim quasi-judicial immunity if they were acting under color of state law).
B. Churchill’s Request for Equitable Relief Churchill contends that quasi-judicial immunity does not
apply to equitable remedies under 42 U.S.C. § 1983. Therefore, he argues that neither the University nor the Regents were immune from his request for reinstatement and front pay. We are not persuaded.
“Section 1983 creates no substantive rights, but rather creates only a remedy against those who, acting under color of law, violate rights secured by federal statutory or constitutional law.” Ramirez v. Dep’t of Corr., 222 F.3d 1238, 1243 (10th Cir. 2000). Both judicial officers and quasi-judicial officers are absolutely immune from claims for monetary damages under section 1983. See Pulliam v. Allen, 466 U.S. 522, 540 (1984) (judicial officers); Horwitz v. State Bd. of Med. Exam’rs, 822 F.2d 1508, 1515 (10th Cir. 1987) (quasi- judicial officers).
In 1984, the Supreme Court held that judicial immunity was not a bar to equitable remedies such as claims for injunctive relief. Pulliam, 466 U.S. at 541-42. However, in 1996, Congress amended section 1983 to bar injunctive relief “against a judicial officer for an act or omission taken in such officer’s judicial capacity . . . unless a declaratory decree was violated or declaratory relief was unavailable.” 42 U.S.C. § 1983; see Federal Courts Improvement Act of 1996, Pub. L. No. 104-317, § 309(c), 110 Stat. 3847 (1996).
Neither the Supreme Court nor the Tenth Circuit has yet addressed whether 42 U.S.C. § 1983 protects officials acting in a quasi-judicial capacity from claims for injunctive relief. Churchill urges us to narrowly construe the term “judicial officer” not to include quasi-judicial actors and cites Simmons v. Fabian, 743 N.W.2d 281 (Minn. Ct. App. 2007), in support. The Simmons court concluded that section 1983 immunity is sparingly granted and that nothing in the amended language or legislative history indicated that the immunity granted to “judicial officers” also extended to quasi-judicial officials. Id. at 290-94. Therefore, in
Simmons, quasi-judicial actors were not immune from claims for injunctive relief under section 1983. Id. at 294.
It appears that Simmons has not been followed by any other court. We reject the reasoning in Simmons in part because it ignores Butz, 438 U.S. 478, which held that judicial immunity extended to officials acting in a quasi-judicial capacity. See Pelletier v. Rhode Island, 2008 WL 5062162, at *6 (D.R.I. No. 07-186S, Nov. 26, 2008) (unpublished order). Instead, we choose to follow the great weight of authority that has concluded that the term “judicial officer” found in section 1983 extends to quasi-judicial actors – thereby barring claims for injunctive relief. See Roth v. King, 449 F.3d 1272, 1286-87 (D.C. Cir. 2006); Montero v. Travis, 171 F.3d 757, 761 (2d Cir. 1999); Gilmore v. Bostic, 636 F. Supp. 2d 496, 506 (S.D. W. Va. 2009); Pelletier, 2008 WL 5062162, at *6.
Accordingly, we are unable to grant Churchill’s request for prospective relief unless (1) the University violated a declaratory decree or (2) declaratory relief was unavailable. Churchill has not claimed that the University violated a declaratory decree, and so
that option is unavailable. He is also unable to demonstrate that declaratory relief was unavailable.
Finally, Churchill’s claim for reinstatement or front pay fell within the trial court’s considerable discretion to fashion equitable remedies. See Schreck v. T & C Sanderson Farms, Inc., 37 P.3d 510, 515 (Colo. App. 2001) (“[t]rial court possesses broad discretion in fashioning an equitable remedy . . . .”). We will not disturb such a ruling absent an abuse of discretion that is manifestly arbitrary, unreasonable, or unfair. La Plata Med. Ctr. Assocs., Ltd. v. United Bank, 857 P.2d 410, 420 (Colo. 1993). We perceive nothing about the trial court’s denial of Churchill’s claims that demonstrates such an abuse of discretion. See id.
Therefore, we perceive no error in the trial court’s conclusion that quasi-judicial immunity barred Churchill’s claims for reinstatement and front pay.5
5 We assume without deciding that in this context front pay is an equitable claim.
C. Adverse Employment Action Churchill next argues that the trial court erred in entering a
directed verdict on his 42 U.S.C. § 1983 First Amendment retaliation claim after finding that the University’s investigation of him did not constitute an adverse employment action. We disagree.
1. Law Our review of a trial court’s ruling on a motion for directed
verdict is de novo. MDM Grp. Assocs., Inc. v. CX Reinsurance Co., 165 P.3d 882, 885 (Colo. App. 2007). A trial court may only grant such a motion where the evidence “compels the conclusion that reasonable persons could not be in disagreement and that no evidence, or legitimate inference arising therefrom, has been presented upon which a jury’s verdict against the moving party could be sustained.” Flores v. Am. Pharm. Servs., Inc., 994 P.2d 455, 457 (Colo. App. 1999). In evaluating the trial court’s ruling, we consider the evidence in the light most favorable to the nonmoving party. Id.
a. What Makes an Employment Action Adverse? We begin by looking at the nature of an adverse employment
action. In the absence of Colorado law on the subject, we turn our attention to a number of federal cases that have dealt with adverse employment actions. Adverse employment actions are discharges, demotions, refusals to hire, refusals to promote, and reprimands. Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000). The action taken must be sufficiently punitive or involve a change in employment to a new position which is “markedly less prestigious and less interesting than the old one.” Id.
Courts have concluded that investigations alone are not adverse employment actions. Id. Breaux concluded that an internal affairs investigation which the plaintiffs contended had been launched in bad faith and resulted in his transfer was not an adverse employment action. Id. at 158. The court reasoned that the plaintiffs failed to show that the alleged “campaign of retaliatory harassment” created an intolerable situation compelling the plaintiffs to transfer to less desirable positions. Also, reasonable persons in the plaintiffs’ positions would not have felt compelled to
resign. Because the plaintiffs still had their jobs and had not been demoted, the defendants’ conduct did not amount to an adverse employment action.
Before an employment action can be considered adverse, it must materially alter the terms or conditions of employment. “[The plaintiff] has the burden of proving that the alleged employment action adversely and materially altered the terms or conditions of her employment.” Altonen v. City of Minneapolis, 487 F.3d 554, 560 (8th Cir. 2007). The action must effect a material change in the terms or conditions of employment. Bechtel v. City of Belton, 250 F.3d 1157, 1162 (8th Cir. 2001). Where one has the same pay and continues to work, the action is not adverse. Id.
Some other forms of less severe conduct by employers may also constitute an adverse employment action for First Amendment purposes. See Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1208 (10th Cir. 2007) (providing poor performance ratings, forbidding teachers to speak to parents about school matters, and blacklisting teachers from future employment at the school could be actionable adverse employment action); Schuler v.
City of Boulder, 189 F.3d 1304, 1310 (10th Cir. 1999) (removing job duties, issuing written reprimand, giving poor performance evaluation, and transferring employee satisfy adverse employment action requirement).
The Tenth Circuit Court of Appeals has “never ruled that all [of an employer’s acts], no matter how trivial, are sufficient to support a retaliation claim.” Couch v. Bd. of Trs., 587 F.3d 1223, 1237 (10th Cir. 2009) (quoting Lybrook v. Members of Farmington Mun. Sch. Bd. of Educ., 232 F.3d 1334, 1340 (10th Cir. 2000)). Further, “there may be some minor adverse actions that would not constitute First Amendment violations.” Lybrook, 232 F.3d at 1340 (quoting Colson v. Grohman, 174 F.3d 498, 511 (5th Cir. 1999)).
In addition, the United States Supreme Court has stated, “Context matters. ‘The real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships which are not fully captured by a simple recitation of the words used or the physical acts performed.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 69 (2006)
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81- 82 (1998)).
Churchill’s claim requires a determination that the investigation conducted under the auspices of the Regents was an adverse employment action. He claims that his First Amendment rights were violated because his exercise of free speech caused the investigation and argues that the investigation was retaliation for exercising his First Amendment rights.
b. Retaliatory Actions Against the Exercise of Free Speech as Adverse Employment Actions
Even though a claim is couched in terms of retaliation against free speech, an adverse employment action must be part of the proof. A First Amendment claim based on retaliation by an employer is analyzed under the test of Pickering v. Bd. of Educ., 391 U.S. 563 (1968), as modified by Garcetti v. Ceballos, 547 U.S. 410, 418 (2006). See Dixon v. Kirkpatrick, 553 F.3d 1294, 1301-02 (10th Cir. 2009). The test is composed of five elements:
(1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in promoting the efficiency of the public service are sufficient to
outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.
Dixon, 553 F.3d at 1302. This test cannot be applied in a vacuum. The essential first
step in applying the test is to assume that the plaintiff has been the victim of an adverse employment action. The Tenth Circuit Court of Appeals has noted that “[i]mplicit in the [Garcetti/] Pickering test is a requirement that the public employer have taken some adverse employment action against the employee.” Couch, 587 F.3d at 1235- 36 (emphasis added) (quoting Belcher v. City of McAlester, 324 F.3d 1203, 1207 n.4 (10th Cir. 2003)). The plaintiff bears the burden of establishing an adverse employment action and “causation — that is, that the constitutionally protected speech was a substantial motivating factor in the employer’s decision to adversely alter the employee’s conditions of employment.” Id. at 1236 (quoting Maestas v. Segura, 416 F.3d 1182, 1188 & n.5 (10th Cir. 2005)).
2. Analysis We perceive no error in the trial court’s ruling because
Churchill did not establish that the University’s investigation constituted an adverse employment action.
Whether an investigation alone is sufficient to constitute an adverse employment action has not been resolved by the United States Supreme Court, and there does not appear to be a definitive consensus on the matter among federal courts.
It is important to note that the record reflects that at all times pertinent to the investigation, Churchill continued to be paid his normal pay and benefits and continued to hold his position as professor with tenure. Churchill taught classes and was permitted to speak openly in public. In nearly all of the cases cited by Churchill that held adverse employment actions to be cognizable under 42 U.S.C. § 1983, the claims were not based solely upon a theory that the investigation itself was an adverse action. Instead, the claims involved other wrongful actions. See Poland v. Chertoff, 494 F.3d 1174, 1180 (9th Cir. 2007) (administrative inquiry and transfer); Coszalter v. City of Salem, 320 F.3d 968, 976-77 (9th Cir.
2003) (transfer of the plaintiff to new duties, unwarranted disciplinary investigation, unwarranted assignment of blame, reprimand containing a false accusation, and criminal investigation instituted in retaliation for exercise of First Amendment rights provided actionable grounds under 42 U.S.C. § 1983); Allen v. Iranon, 283 F.3d 1070, 1073-76 (9th Cir. 2002) (prison doctor locked out from seeing patients, had multiple internal affairs investigations launched against him, and was passed over for promotions; the defendants did not dispute that those actions constituted adverse employment actions); Ulrich v. City & Cnty. of S. F., 308 F.3d 968, 977 (9th Cir. 2002) (investigation that threatened to revoke doctor’s clinical privileges, refusal to rescind doctor’s resignation, and filing adverse action report held adverse employment actions).
Churchill argues that Hetzel v. Cnty. of Prince William, 89 F.3d 169, 171-72 (4th Cir. 1996), supports the position that an investigation alone can constitute an adverse employment action. Hetzel is not helpful to Churchill. There, the court held that, of all the allegations raised by the plaintiff, “only the alleged failure to
promote and [an internal affairs] investigation can even possibly constitute adverse retaliatory action.” The court stated it had “significant doubts” whether the investigation could constitute an adverse employment action, but that it did not need to decide that issue. Id. at 172. Any suggestion that the case stands for the proposition that investigations alone may constitute adverse employment actions is not well taken.
Cases from the Tenth Circuit indicate that action more significant than investigation alone is necessary to constitute adverse employment action. In Belcher, 324 F.3d at 1207 n.4, the court, stating that if an employer’s action is “inconsequential or has only speculative consequences, there can be no basis for a First Amendment claim,” held that a written reprimand threatening dismissal for further speech is sufficient to constitute an adverse employment action.
In Couch, a physician brought a section 1983 action against a hospital where he had staff privileges, alleging that there had been a campaign of retaliation as a result of his speaking out about substance abuse at the hospital. The court concluded that the
investigation launched against the doctor did not constitute an adverse employment action. Id. at 1235-39; see also Carrero v. Robinson, 2007 WL 1655350, at *10 (D. Colo. 05cv-2414, June 5, 2007) (unpublished opinion and order) (finding internal affairs investigation was not an adverse employment action because it did not change the terms or conditions of employment); Spagnuolo v. City of Longmont, 2006 WL 2594484, at *1 (D. Colo. 05-cv-00729, Sept. 11, 2006) (unpublished order) (dismissing employee’s claims where employer allegedly “instigated and conducted an unwarranted investigation of [the employee’s] activities after [the employee] exercised his First Amendment free speech rights”).
Other federal circuits that have concluded that an employer must be permitted to investigate the potential misconduct of its employee without the fear of the investigation being interpreted as an adverse employment action. See Breaux, 205 F.3d at 158 (concluding that investigating alleged violations of departmental policies and making purportedly false accusations are not adverse employment actions); Benningfield v. City of Houston, 157 F.3d 369, 377 (5th Cir. 1998) (subjecting an employee to internal affairs
investigation and referring her for psychological testing did not constitute adverse employment action); Heil v. Santoro, 147 F.3d 103, 110 (2d Cir. 1998) (“[I]n light of the employer’s duty . . . to make a reasonable investigation before imposing discipline on an employee for engaging in protected speech, it is clear that [the complaint] that defendants conducted an investigation is not a valid First Amendment claim.”). Without this ability to investigate, a public employer would be left without recourse and would lose its “greater leeway in its dealings with citizen employees.” Engquist v. Oregon Dep’t of Agric., 553 U.S. 591, 599 (2008).
Churchill claims that the investigation chilled his right to free speech and that under those circumstances it constituted an adverse action. The standard is not whether his speech was chilled; it is whether the University’s actions would “deter a reasonable person from exercising his . . . First Amendment rights.” Couch, 587 F.3d at 1238 (quoting Brammer-Hoelter, 492 F.3d at 1208); see also Maestas, 416 F.3d at 1188 n.5 (“[W]e have never held employment action which may tend to chill free speech is necessarily adverse.”).
The process adopted by the Regents provides for the control of academic standards and the investigation into tenured professors’ compliance with those standards. Chancellor DiStefano and the University concluded that Churchill’s 9/11 essay was protected speech. However, while the University was examining this question, nine separate allegations of Churchill’s research misconduct came to light. At least two of these allegations, by Professor John LaVelle, predated the University’s investigation.
The Board of Regents had charged the faculty, in cooperation with the administration, to develop the policies and procedures to prevent, identify, and respond to research misconduct. “Research misconduct” includes “fabrication, falsification, plagiarism, or other serious deviation from accepted practices in proposing, carrying out, or reporting results from research.” University of Colorado Standing Committee on Research Misconduct, Research Misconduct Rules: Operating Rules and Procedures § 1, at 1. Under these rules and procedures, Chancellor DiStefano had an obligation to forward the allegations of Churchill’s research misconduct to the SCRM. Following these rules and procedures,
the SCRM was then responsible for investigating the allegations. The SCRM charged first the Inquiry Committee and then the Investigative Committee to look into the allegations. The SCRM then undertook its own review before concluding by a vote of six to three that Churchill’s research misconduct warranted dismissal. Churchill’s academic freedom did not include the right to commit research misconduct that was specifically proscribed by the University’s policies and enforced through a system of shared governance between the administration and the faculty.
The University’s investigation of Churchill’s research misconduct therefore did not constitute an adverse employment action for purposes of his First Amendment claim. See Couch, 587 F.3d at 1238.
Nor are we able to conclude that the University’s investigation became an adverse employment action because it had a chilling effect on Churchill’s speech and the speech of some faculty members. Churchill contends that such a chilling effect was demonstrated by his own testimony of the emotional toll the investigation took on him and by Professor Saito’s testimony that
she was concerned about being investigated because of her support for Churchill. Again, the standard is whether a reasonable employee would be deterred from exercising his First Amendment rights because of the investigation. Id. at 1238. Neither of these examples shows that free speech was chilled, impeded, or stifled. After Chancellor DiStefano determined that Churchill’s 9/11 essay was protected speech, the investigation focused upon allegations of research misconduct.
In extensive argument to the trial court, Churchill’s counsel contended that motivation is the sine qua non of an adverse employment action. We are unaware of any case concluding that an investigation was adverse because of the motive of the investigators. Moreover, the record before us indicates that the investigation involved twenty-five faculty members, whose collective motive was not established.
We distinguish the current case from Levin v. Harleston, 966 F.2d 85 (2d Cir. 1992), a case which Churchill claims provides particular guidance. In Levin, a tenured professor created controversy because of his views on race expressed in three
writings. Id. at 87. The university created a “shadow class” for those students who wanted to transfer out of his class. Id. at 87- 88. The university president also created an ad hoc committee to determine whether the professor’s views went beyond the protection of academic freedom and amounted to some form of misconduct. Id. at 89. The committee recommended that no disciplinary action be taken. Id. The court concluded that the president’s actions “conveyed a chilling threat of discipline” that violated the professor’s First Amendment rights. Id. at 89-90.
The present case is distinguishable. The Levin court did not specifically address the issue of whether the creation of the “shadow class” and the investigation constituted an adverse employment action under Pickering. Additionally, in contrast to the committee in Levin, each faculty member that served on the Investigative Committee, the SCRM, and the P&T Committee recommended that the University take some form of disciplinary action against Churchill for his research misconduct (with the majority of the three committees’ members concluding that he should be dismissed).
We next reject Churchill’s argument that the investigation caused damage to him. In this argument, he necessarily recognizes that an investigation must have some punishing or diminishing consequences before it can be deemed to be an adverse employment action. He states that the investigation caused him to miss deadlines and to default on unspecified book contracts. He also claims that third parties cancelled speaking engagements and the alumni association withheld an award from him. As to the former contentions, the record is devoid of any proof of damage or causation. As to the latter cancellations and the withholding of the award, the University did not take these actions and therefore they do not constitute an adverse employment action. See, e.g., Robbins v. Oklahoma, 519 F.3d 1242, 1251 (10th Cir. 2008) (“In general, state actors may only be liable under section 1983 for their own acts, not the acts of third parties.”). Nothing in the record before us establishes any damage in the form of pecuniary or professional loss to Churchill as a result of the investigation.
We disagree with Churchill’s argument that the University committed an adverse employment action when it failed to process
his sabbatical request. The only evidence of this action presented at trial was in his grievance submitted to the P&T Committee, which was admitted as an exhibit. Churchill has not cited any evidence in the record showing that he was entitled to a sabbatical under the terms of his employment or that any delay in the University’s processing his request was not due to normal administrative procedures. See C.A.R. 28(a)(4) (appellant’s “argument shall contain . . . [the] parts of the record relied on”); Brighton Sch. Dist. 27J v. Transamerica Premier Ins. Co., 923 P.2d 328, 335 (Colo. App. 1996) (appellate court has no duty to search the record), aff’d, 940 P.2d 348 (Colo. 1997). Nor does Churchill suggest that he planned to take his sabbatical during the course of the investigation or at any time before he was terminated.
Churchill further argues that the University committed an adverse employment action when it prevented him from “unbanking” courses. However, in neither the testimony presented at trial nor in his briefs does he explain the term “unbank.” In fact, he presented no testimony at trial referencing the term “unbank.” This term appears in his grievance submitted to the P&T
Committee, which was an exhibit at trial, which alleges “[the University’s] attempt to prevent [him] from ‘unbanking’ courses for which [he] was owed release time.” Churchill presented no evidence by which a reasonable juror could conclude or make a legitimate inference that preventing him from “unbanking” his courses was an adverse employment action as distinguished from a routine aspect of academia. Neither he nor any other witness explained this term or how it may have adversely affected the conditions of his employment. See Pastrana v. Hudock, 140 P.3d 188, 189 (Colo. App. 2006) (“[W]e will disregard statements of fact in either party’s brief that are unsupported by the record . . . , and we will not search the record for evidence to support allegations of error.”).
We also note that Churchill’s contention supposes that the investigation and his termination are separate adverse actions. Of course, he is relegated to this position because quasi-judicial immunity shields the University and its Regents from liability for terminating him. At least one court has ruled that an employee must allege injury independent of termination for the investigation to constitute an independent claim. Hoffman v. Baltimore Police
Dep’t, 379 F. Supp. 2d 778, 792-93 (D. Md. 2005). On the contrary, Churchill claimed at trial that the very purpose of the investigation was to terminate him.
D. Duplicative Claim We also conclude that the trial court would have been justified
in dismissing the adverse employment action claim because it was duplicative of the second claim for relief which alleged retaliation by termination. Both claims for relief alleged that the investigation was wrongful. As relevant here, both the first and second claims for relief, as set forth in the original complaint and in the trial management order, stated:
The Defendants’ acts of intimidating, threatening, and investigating Professor Churchill were motivated by Professor Churchill’s exercise of constitutionally protected conduct. Defendants’ actions caused Professor Churchill to suffer injuries that would chill a person of ordinary firmness from continuing to engage in such constitutionally protected activity.
The two claims for relief are identical in all respects, except that the words “and finally terminating” are added to the termination claim after the words “and investigating.”
Although at oral argument Churchill’s counsel contended that the two claims had been distinguished for the jury, our review of the record shows the contrary: Churchill asserted the investigation was a sham conducted to assure his termination, and that the termination was inextricably tied to the investigation.
There was no practical way for Churchill to prove that he was wrongfully terminated without presenting evidence intended to show that the investigation was flawed and began as a result of his exercise of First Amendment rights. By the same token, if we were to grant the relief sought by Churchill, namely a new trial solely on the wrongful investigation claim, he would necessarily present evidence that he was terminated, and that evidence would be part of the evidence the jury could consider in concluding whether the investigation was justified.
Because the first claim for relief based on the investigation was entirely subsumed within the second claim for relief for wrongful termination, the claims were duplicative, and the trial court correctly directed a verdict for the University on the first claim. See Barham v. Scalia, 928 P.2d 1381, 1387 (Colo. App.
1996) (trial court correctly dismissed claim that was duplicative and superfluous); cf. Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256, 1264 (Colo. 2000) (applying economic loss rule to prohibit duplicate claims under tort and contract theories); Aller v. Law Office of Carole C. Schriefer, P.C., 140 P.3d 23, 27 (Colo. App. 2005) (when legal malpractice claim and breach of fiduciary duty claim both arise from same material facts, breach of fiduciary duty claim should be dismissed as duplicative).
IV. Conclusion We affirm the trial court’s finding that the University and the
Regents had quasi-judicial immunity. We also affirm the trial court’s directed verdict in favor of the University and the Regents on Churchill’s 42 U.S.C. § 1983 claim because Churchill failed to prove that the University’s investigation constituted an adverse employment action. The judgment is affirmed.
JUDGE TERRY and JUDGE BOORAS concur.