Corporate Governance

Churchill Files Motion for Reinstatement of Employment

By Charlene Hunter

 Ward Churchill's attorneys filed their Motion for Reinstatement of Employment on May 1. The Motion lists six reasons why Churchill should be reinstated (quotations are taken from the Motion):

1. Reinstatement is the preferred remedy – 'Reinstatement is the preferred remedy, unless the employer has demonstrated such hostility that there is little or no hope that a working relationship would be possible. In such rare and narrow circumstances, front pay is an appropriate remedy in lieu of reinstatement.'

2. Reinstating Churchill undoes the chilling effect to free speech caused by the unlawful termination – 'Merely substituting front pay for reinstatement simply allows the University to expend taxpayer monies to buy its illegal result.'

3. Defendants' possible irritation caused by Prof Churchill's reinstatement is expected and is not a legitimate basis to deny reinstatement – 'Defendants must conclusively establish (rather than speculatively assert) that Prof Churchill's reinstatement would create far more than an expected amount of friction caused by reinstatement.' 'Defendants' burden is nearly impossible given that the Ethnic Studies Department is relatively isolated and independent, found on a large campus, with Prof Churchill's departmental colleagues fully endorsing his return.'

4. Defendants cannot credibly argue that Prof Churchill's reinstatement will cause undue hostility in the workplace when there has been virtually zero acrimony in workplace prior to the unlawful investigation and termination – 'The finding [by the jury that the protected speech did not unduly interfere with the plaintiff's employment or the operations of the public employer] collaterally estops the University from arguing (or this Court from holding) that Prof Churchill's conduct has been unduly disruptive.'

5. The jury's damage award supports reinstating Prof Churchill – 'Prof Churchill at trial did not ask the jury to award him monetary damages. Prof Churchill only sought reinstatement…'

6. Defendants' post-trial hostility towards Prof Churchill evidences ongoing discriminatory behavior – 'Defendants' strong disagreement with jury's verdict appears to fuel resentment. This is their problem, though, and not a basis to deny Prof Churchill the remedy of reinstatement.'

The Motion includes exhibits from several groups in support of reinstatement: Letter to the Court Supported by Hundreds of Members of Academia; the Society of American Law Teachers; three members of the Ethnic Studies department, including Incoming Chair Elisa Facio; American Association of University Professor's National Council Resolution. The Motion also includes an affidavit from Professor Churchill that he 'does not harbor any animus or ill-will which would interfere with his continuing to teach at the University as he always has and always will: professionally and without disruption.'

The University has twenty days to file its reply; we will report further at that time.

Full post as published by The Race to the Bottom on May 04, 2009 (boomark / email).