Free speech advocates are rightly dismayed by this ruling, which advances an awful trend. Academic freedom is declining. The belief that that free speech rights don't include the right to speak offensively is now firmly entrenched on campuses and enforced by repressive speech or harassment codes. Campus censors don't generally riot in response to presumptively offensive speech, but they do steal newspapers containing articles they don't like, vandalize displays they find offensive, and disrupt speeches they'd rather not hear. They insist that hate speech isn't free speech and that people who indulge in it should be punished. No one should be surprised when a professor at an elite university calls for the arrest of "Sam Bacile" while simultaneously claiming to value the First Amendment.

Still, the ruling in Ward Churchill's case was a bit of a shock. Judges have been more sympathetic to free speech rights than many college and university administrators, and the jury's finding that he had been fired because of his speech gave Churchill quite a strong case. But he is, of course, a most unsympathetic plaintiff, having crudely assailed the nation's most sympathetic victims, and the Colorado courts allowed disregard for his speech to trump regard for his rights.

How did a public university get away with firing a tenured professor in retaliation for political speech? It's complicated: Churchill sued under a federal civil rights statute (section 1983), providing remedies for people whose civil rights are violated "under color" of law. But public officials generally enjoy "qualified immunity" from liability for actions that were not clear violations of law; judges (as well as legislators) enjoy absolute immunity for official actions (legislating or adjudicating).

So, to finesse Churchill's claim for relief, the trial court ruled that the Colorado Board of Regents, which had voted to fire him, was a "quasi-judicial body," entitled to absolute immunity from damages or a claim for equitable relief, such as reinstatement. In addition, the Court ruled that even if reinstatement were permissible, it would be inappropriate in this case because of the enmity between Churchill and the university and because, given his alleged misconduct, reinstatement would undermine university's commitment to academic integrity.

A university that fires a professor for his controversial speech, all the while pretending it's firing him for misconduct, is, however, in no position to make self-righteous claims about academic integrity. Indeed, Churchill's reinstatement could have been lesson in integrity for administrators as well as students. Besides, the misconduct charge (which was challenged by the Colorado Conference of the American Association of University Professors) was essentially irrelevant, given the jury's finding that Churchill was fired for offensive speech.