The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Jackson v. Wright, decided yesterday by Judge Amos Mazzant (E.D. Tex.):
This case stems from the suppression of academic scholarship at the University of North Texas …. UNT is a public institution that hales itself as an academy through which students and faculty may, among other things, "publish … and/or display their scholarship freely as appropriate to their respective UNT-assigned roles and responsibilities."
But as the Plaintiff in this matter is now aware, pressures from offended constituents can overshadow promises of academic freedom.
Plaintiff Dr. Timothy Jackson is a professor and scholar of music theory at UNT. He has dedicated much of his 40-year career to studying Heinrich Schenker …, an Austrian Jew who developed a system of music theory that became influential in the United States after World War II. Prior to this lawsuit, UNT was home to, and Plaintiff directed, the Center for Schenkerian Studies. Plaintiff was also a founding member of the Journal of Schenkerian Studies …, which was formerly published by the UNT Press.
Plaintiff's area of expertise became a topic of controversy in November 2019 at a convention of the Society for Music Theory. Philip Ewell, a Black professor at Hunter College of the City University of New York, delivered for the Society a plenary address titled "Music Theory's White Racial Frame." During this talk, Professor Ewell critiqued the discipline of music theory for its "deep-seated whiteness" and described Schenker as "an ardent racist and German nationalist." In a paper later published on this talk, Professor Ewell argued that "Schenkerian theory is an institutionalized racial structure … that exists to benefit members of the dominant white race of music theory."
As a lead editor of the Journal (of which Schenker is the namesake), Plaintiff—with the help of his colleagues and his assistant editor, Levi Walls—organized a symposium and invited music scholars to submit papers in response to Professor Ewell's talk and publication.
The Journal sent a call for papers to members of the Society for Music Theory, including Professor Ewell. Walls assisted with the symposium in nearly every aspect, from its inception to its publication. Notably, the idea for the symposium originated in an email chain between Plaintiff and Walls.
The symposium contributions reflected a range of views on Professor Ewell's arguments and were published in the Journal in July 2020. Plaintiff contributed one of the pieces, which accuses Professor Ewell of quoting Schenker without context, failing to discuss the evolution of Schenker's views on race during his lifetime, and refusing to acknowledge that Schenker was a victim of anti-Semitism.
Plaintiff also suggested Professor Ewell's criticisms of Schenker might themselves have constituted anti-Semitism. In support of this contention, Plaintiff cited studies purportedly classifying Black people as more likely to hold anti-Semitic views than whites. Plaintiff closed his article by asserting that the paucity of African American involvement in music theory discipline results from "few grow[ing] up in homes where classical music is profoundly valued, and therefore … lack[ing] the necessary background."
The backlash was swift. Professors across the country circulated emails and "led [a] social media charge" condemning the symposium. The Executive Board of the Society for Music Theory issued a letter, stating, among other things, "[t]he conception and execution of [the] symposium failed to meet the ethical, professional, and scholarly standards of our discipline." Further, a number of UNT graduate students circulated a statement (the "Student Statement") denouncing the Journal's "platforming of racist sentiments" and calling for potential removal of Plaintiff from the Journal for his "actions … both past and present" that were "particularly racist and unacceptable." One defendant in this case published the Student Statement on her Twitter feed.
In response, a majority of Plaintiff's colleagues in UNT's Division of Music History, Theory, and Ethnomusicology signed a letter endorsing the Student Statement and included a link for viewers to access it. In addition, John Richmond, Dean of the College of Music at UNT, announced the College of Music's launch of a "formal investigation into the conception and production of the twelfth volume of the Journal." UNT officials formed an ad hoc panel (the "Panel") to carry out this investigation.
When the backlash began, Walls himself was "confused about what exactly people want" because they "seem[ed] to be speculating about the [J]ournal without actually reading it." He further expressed that "the [J]ournal printed every response" it received, and the editors "emphasized in the [call for papers] that [they] wanted a wide range of views."
Despite what Plaintiff and (initially) Walls believed about the Journal's publication process, the Panel issued a report (the "Report") in which it found the Journal did not observe "the standards of best practice in scholarly publication" in producing Volume 12 and, accordingly, made recommendations the Journal was expected to implement. Provost Jennifer Cowley then sent Plaintiff a letter instructing him "to develop a plan to address the recommendations … and submit the plan to Chair Benjamin Brand and Dean John Richmond for review and approval" by a particular date. A portion of the recommendations included: "1. Changing the editorial structure" of the Journal; "2. Making clear and transparent all editorial and review processes[; and] 3. Defining clearly the relationships between the [J]ournal editorial team and the editorial board." Notably, Provost Cowley did not send the letter to any other faculty members associated with the Journal.
Prior to the plan submission deadline, Dr. Brand, Chair of Plaintiff's department, "informed [Plaintiff] that he would be removed from the Journal and that the university would eliminate resources previously provided to the Journal and Center for Schenkerian Studies." Dr. Brand stated he "c[ould] not support a plan according to which [Plaintiff] would remain involved in the day-to-day operations of the [J]ournal, and its editorial process in particular, given the panel's findings of editorial mismanagement."
A week later, Plaintiff submitted his response … to Dr. Brand and Dean Richmond, addressing the Panel's findings, proposing a plan, and defending his actions and reputation. Plaintiff "plan[ned] to remain on the editorial board of the [Journal], albeit in a role that [would] ward off accusations recently leveled at the [Journal] of alleged 'power imbalance.'" Plaintiff expressed that, "to protect academic freedom and also prevent pretextual abrogation of that right," it had become "absolutely necessary that the editor-in-chief be a full time, tenured faculty member whether at UNT or at an outside institution." Plaintiff concluded his Response by indicating he would not be forced to resign from the Journal's editorial board but "look[ed] forward to a positive outcome of [the] ad hoc process by implementing the points recommended by the Panel."
Since then, the Journal has been "on ice." No editorial board currently exists, and no one has applied for the position of editor-in-chief. Because of this indefinite suspension, Plaintiff has been de facto removed from the Journal….
The court allowed Schenker's First Amendment claim against the University to go forward:
Supreme Court precedent in the realm of academia could not be clearer:
The essentiality of freedom in the community of American universities is almost self-evident. No one should underestimate the vital role in a democracy that is played by those who guide and train our youth. To impose any strait jacket upon the intellectual leaders in our colleges and universities would imperil the future of our Nation. No field of education is so thoroughly comprehended by man that new discoveries cannot yet be made. Particularly is that true in the social sciences, where few, if any, principles are accepted as absolutes. Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.
Sweezy v. New Hampshire (1957) (emphasis added); see also, e.g., Keyishian v. Bd. of Regents (1967) ("The classroom is peculiarly the marketplace of ideas. The Nation's future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection.").
Plaintiff asserts a claim against the Board Defendants for "adverse action" in violation of Plaintiff's First Amendment rights. He alleges that UNT took specific actions in retaliation for Plaintiff's critical article and publication of the entire symposium in the Journal. Defendants contend that Plaintiff has not and cannot allege facts sufficient "to plead an adverse employment action that supports a claim for a violation of the First Amendment." …
[U]nder the test for customary First Amendment workplace retaliation, Plaintiff must allege facts that plausibly show: "(1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government's interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action." Defendants only contest the first element. Specifically, Defendants argue that Plaintiff has not alleged facts that show an adverse employment action. The Fifth Circuit defines adverse employment as "discharges, demotions, refusals to hire, refusals to promote,  reprimands, and in some instances, transfers."
Plaintiff alleges he was de facto removed from the Journal in retaliation for the symposium's criticisms of Professor Ewell. This is a plausible assertion that states a legal claim. UNT, responding to backlash from its displeased students and faculty, took immediate action. It created the Panel to investigate the Journal and its editorial practices and later issued recommendations regarding the Journal that Plaintiff was expected to implement. Dr. Brand then threatened Plaintiff with removal from the Journal.
Plaintiff alleges these actions have left him banished from the Journal he founded. Plaintiff also alleges UNT removed him from the Journal for his speech. The Court at the 12(b)(6) stage views the alleged facts in the light most favorable to Plaintiff, and, accordingly, can reasonably infer that Plaintiff was disciplined as a result of the controversial remarks published in Volume 12 of the Journal.
The test is slightly different for claims of suppression of speech in violation of the First Amendment in the university context. In Buchanan, the Fifth Circuit held that for public university professors:
[t]o establish a § 1983 claim for violation of the First Amendment right to free speech, they must show that (1) they were disciplined or fired for speech that is a matter of public concern, and (2) their interest in the speech outweighed the university's interest in regulating the speech. The first question, asking whether the professor's speech is protected as a matter of public concern, is a question of law.
Part one of the test comprises two distinct elements—that is, whether the speech constitutes a matter of public concern and whether "the protected expression was a substantial or motivating factor" in the discipline or termination. Defendants do not dispute that this case involves speech that is a matter of public concern. "Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community." Plaintiff alleges he took part in publishing a symposium that, given the response, clearly interests the music theory community and other academics. With respect to the second element, Plaintiff alleges he was de facto removed from the Journal in retaliation for the symposium's criticisms of Professor Ewell. As reasoned previously, this is a plausible assertion.
The second component of the First Amendment free speech test is known as the Pickering-Connick balancing test: "[i]f Plaintiff's interests in the prohibited speech outweigh the [university's] interests, then Plaintiff's First Amendment rights have been violated." Plaintiff's Complaint alleges a sincere interest in defending Schenker, "the namesake of the Center for Schenkerian Studies that Professor Jackson directs" at UNT, and publishing material in the Journal of which he is a founding member. Accordingly, this Court finds it plausible that Plaintiff's interest in his speech outweighs Defendants' interests in regulating it….
The Court also allowed Jackson's defamation case against the signatories of the Student Statement to go forward, though just with a very brief discussion:
Accepting as true all well-pleaded facts in Plaintiff's Complaint, and viewing them in the light most favorable to Plaintiff, the Court finds that Plaintiff's defamation claims plausibly suggest an entitlement to relief. Absent a claim which is obviously insufficient, a court should not grant a Rule 12(b)(6) motion to dismiss, thereby denying Plaintiff an opportunity to develop facts to support his Complaint. Issues pertaining to Plaintiff's defamation claims are better resolved at the summary judgment stage.