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As those who have been keeping up with his case almost certainly know, the University of Colorado has Professor Ward Churchill. As Inside Higher Education :

The interim chancellor at Boulder on Monday issued a the controversial professor, citing findings of serious and repeated research misconduct. Churchill still has appeal rights—and has 10 days to take his case to a faculty review committee. After any appeal, a final decision rests with the president of the University of Colorado System and the Board of Regents. And Churchill has vowed to sue the university to block any firing.

As FIREstated throughout the controversy, under controlling law there could be little doubt that Churchill’s speech is protected. A university certainly can, however, fire an employee for research misconduct. As we wrote about the initial findings of the University of Colorado Board of Regents, which concluded he could not be punished for his speech:

FIREcannot, however, agree with those who argue that Churchill should not be the subject of any adverse job action simply because the Board of Regents’ initial investigation was improper. The recent allegations of research misconduct have come from citizens doing their own, independent, inquiries into Churchill’s background. Ward Churchill has a right to speak, but—once he injects himself into the public square through his teachings, writings, and speeches—he cannot insulate himself from public scrutiny. If that scrutiny results in the release of information that harms his credibility or legitimately places his job in jeopardy, then that is simply the hazard of voluntarily participating in the marketplace of ideas.

The fact that the investigation was initiated because of his speech may continue to haunt the University of Colorado and will almost certainly be the basis of whatever lawsuit Churchill’s lawyers initiate. But as FIREco-founder Harvey Silverglate pointed out in the , it is “extraordinarily difficult to win” a case in which an investigation based on protected speech legitimately uncovers actual wrongdoing:

“The reason it’s so hard to win a pretext case is because, in a pretext case, the academic dishonesty is already proven (by the faculty investigation),” Silverglate said. “And so a court would have to swallow very hard to say, ‘Even though they have proven the case of academic dishonesty, we’re not going to let him be fired because it’s really a cover or a pretext for a political witch hunt.’”