The Volokh Conspiracy
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From Weiss v. Perez, decided Wednesday by Judge Beth Labson Freeman (N.D. Cal.):
In this case, Elizabeth Weiss, a tenured professor of physical anthropology at San Jose State University, alleges that the University has retaliated against her for her speech expressing opposition to repatriation of Native American remains….
Weiss is a tenured professor of physical anthropology at San Jose State University … where she specializes in osteology, the study of human skeletal remains. Weiss is a critic of repatriation, which is a process through which Native American remains and cultural items are returned to tribes.
In 2020, she published a book titled "Repatriation and Erasing the Past," which criticizes federal and state laws that require universities and museums to return Native American remains to tribes. She argues in the book that these laws "undermine objective scientific inquiry and violate the Establishment Clause of the United States Constitution by favoring religion over science." The book generated significant criticism, with about a thousand professors and graduate students signing an open letter calling the book "anti-indigenous" and "racist."
Weiss also authored an op-ed and tweet that received criticism.. On August 31, 2021, she published an op-ed in The Mercury News and The East Bay Times outlining her critique of AB 275, which amended CalNAGPRA. After the op-ed was published, the University received "vitriolic emails" from academics and the public demanding discipline.
On September 18, 2021, Weiss posted a tweet to her Twitter account stating, "So happy to be back with some old friends" and including a photo of her holding a skull from the University's collection. Weiss alleges that other anthropologists and journalists, as well as the Anthropology Department, had posted similar pictures in the past. The tweet sparked substantial criticism. Eleven days later, Defendant Del Casino published an open letter addressing the tweet, and in November 2021, Defendant Gonzalez posted a statement on the Department website.
Weiss alleges that she has made these repatriation arguments for several years without controversy at the University. She asserts that Defendants Gonzalez and Jacobs encouraged her to write her book as it would spark "lively discussions." Weiss alleges that following publication of her book, "Defendants responded with escalating scrutiny of her work, culminating in threats and retaliatory actions." …
Weiss alleges that the University began a campaign of retaliation against her following her book's publication. She first points to a public meeting held by the University on December 3, 2020 to discuss the possibility of starting a Native and American Indian studies program. Weiss alleges that during the Q&A portion, she disagreed with panelists who advocated for having only Native American persons working in the program. She claims that on December 11, 2020, she received an email from Gonzalez asking her to speak on the phone, and, on the phone, he allegedly "told her that she should not participate in events like this again or share her views because her views may harm the feelings of junior faculty members."
Weiss next alleges that she was denied access to the Anthropology Department ListServ (the "Listserv"). In December 2020, Weiss responded to a Listserv email sharing the "Cite Black Authors" database claiming that because she looks for "objective knowledge," she would "encourage researchers to look for the best source material and realize that an author's ethnicity, race, or color of their skin has no actual bearing on the validity of their contribution." Soon thereafter she sent another email to the Listserv in response to the above-mentioned open letter, claiming her book was not racist. Later that day Gonzalez emailed Weiss to state it was not "appropriate to use the departmental listserv for this purpose" and that her email could "undermine the hard work" that went into creating the Listserv as an "online communication and networking infrastructure." Two days later, Gonzalez restricted Listserv access so that only he and one other professor could send emails. Weiss alleges that restriction of Listserv use was "retaliation for [her] decision to express her views on the Cite Black Authors email and to defend her book."
Weiss next claims she was improperly denied sponsorship for a speaker series. She alleges she emailed Gonzalez proposing an event called "Combating Cancel Culture: Why Diversity of Thought Still Matters." She wanted department sponsorship to receive benefits such as the departmental Zoom account, Listserv advertising, RSVP tracking, and a speaker honorarium. Gonzalez declined, stating he could not commit funding or staff as there had already been a speaker series that semester. Weiss claims that when she offered to hold it a different semester, Gonzalez responded that she would need to comply with the Dean's Office guidelines for speaker series sponsorships. She claims that this was "pretext" to reject her event, as the guidelines were not enforced for a speaker series earlier that semester. She informed Jacobs that she was upset the guidelines were selectively enforced and he reached out to Gonzalez. The Anthropology Department Standing Committee then adopted a policy whereby faculty may invite speakers and reserve space without sponsorship, but a request for sponsorship and staff assistance would require a departmental vote. There is no allegation that Weiss submitted her proposed series for a vote.
Next, in June 2021, Jacobs hosted a Zoom webinar entitled "What to Do When a Tenured Professor is Branded a Racist." Gonzalez allegedly implied at the event that he would take adverse action against Weiss if she was not tenured and suggested she was "professionally incompetent." He allegedly further stated that Weiss had never talked about her writing in the classroom and that if she did, he would "have a very different approach to this." Weiss claims she "has long taught about repatriation in her classes and plans to continue to do so." She alleges that students have started to voice complaints about the views she expresses in class. After the Zoom event, Weiss requested a letter from Gonzalez and Jacobs assuring her that she would be allowed to assign her book, speak about her research in class, and access skeletal remains for research purposes. Jacobs told her that Del Casino and the Office of Faculty Affairs would not let him provide her a letter. Jacobs further said that Gonzalez would not retract his statements and that Jacobs was receiving pressure from others to take action against her. Id. Counsel for Weiss then sent a letter to Del Casino, Jacobs, and Gonzalez warning of potential legal action. Weiss also thinks Gonzalez will take further action if she continues teaching her views on repatriation, such as "putting forward additional resolutions targeting her and enacting policies that limit her freedom in the classroom."
Weiss further asserts that she has lost access to the curation facility and lost some of her duties. Weiss has been the Collections Coordinator for the University's skeletal remains since 2004. This role involves "establishing protocols for and facilitating research of [the University's ] extensive collection of skeletal remains." On October 6, 2021, the University announced Interim Presidential Directive PD-2021-03, entitled "San Jose State University's Interim Protocol for Curation Spaces in Alignment with NAGPRA, CalNAGPRA, AB275" (the "Directive"). [Details omitted. -EV]
Finally, Weiss alleges she was improperly denied placement on a thesis committee. She claims that there was a Department "policy" that Weiss would sit on thesis committees for research involving bones. She claims that she was not assigned to sit on the committee for a graduate student whose research involved human bones. Gonzalez told her it was because the student did not request her. Weiss claims that she should have been assigned even if the student had not requested her, but she was not because of her views on repatriation. She says that she thinks she will be denied placement on thesis committees in the future, which would hurt her professional standing and reputation….
The court allowed Weiss's case against some defendants to go forward:
"[T]o state a claim against a government employer for violation of the First Amendment, an employee must show (1) that he or she engaged in protected speech; (2) that the employer took 'adverse employment action'; and (3) that his or her speech was a 'substantial or motivating factor' for the adverse employment action." Defendants argue that three of Plaintiff's alleged adverse employment actions—curtailing her duties as Collections Coordinator, restricting access to certain remains, and storing her materials in an "inferior" space—were not actually adverse. Defendants also argue that Weiss has not shown that her speech was a "substantial or motivating factor" for those actions or three others— limiting her Listserv access, requiring ORC approval of her research, and not assigning her to a thesis committee.
An adverse employment action is an action taken by an employer that is "reasonably likely to deter employees from engaging in protected activity [under the First Amendment]." The Ninth Circuit found that actions including a change in duties, "repeated and ongoing verbal harassment and humiliation," threatened disciplinary action, and "an unpleasant work assignment," among an unwarranted disciplinary investigation and action, a criminal investigation, and a ten-day suspension from work, constituted "a severe and sustained campaign of employer retaliation." It more recently determined there was retaliation based on the employer's "defamatory communications with the press" in combination with a suspension, indefinite leave, a "one-sided gag order," and several "spurious" investigations.
Here, Weiss's allegations include at least some of the less severe allegations identified in these lists. The Court finds that, taking all allegations in the FAC as true, it is at least plausible that the University's actions would be reasonably likely to deter an employee from engaging in protected speech.
Next, there are three ways to show that speech was a "substantial or motivating factor" for an adverse employment action: (1) proximity in time between the protected action and the adverse employment action; (2) expression of opposition to speech; or (3) false and pretextual explanations for the adverse employment action. Here, the proximity in time between Plaintiffs' book publication, op-ed, and tweet, among other things, and the alleged adverse employment actions is sufficient to plead that the speech was a "substantial or motivating factor" in the University taking those actions.
There may ultimately be other, justifiable explanations for the University's actions, such as the requirement to comply with NAGPRA and CalNAGPRA, but at the motion to dismiss, the Court looks only at whether there is a plausible inference that the actions were the result of Weiss's speech and, given the proximity in time, it finds that there is. Weiss has thus adequately alleged that her speech was a "substantial or motivating factor" in the University's actions….
Despite some of the weaknesses with individual alleged actions identified by Defendants, the Court finds that the allegations considered as a whole are sufficient to state a claim for relief….
Congratulations to Daniel Ortner (formerly of the Pacific Legal Foundation and now of the Foundation for Individual Rights and Expression) and Ethan Blevins (of the Pacific Legal Foundation), who represented or now represent plaintiff. Disclosure: I have consulted for FIRE on some matters, but I am not at all involved inthis one.