Start at Jackson v. WrightJudge 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.”
However, the Plaintiff is well aware that academic freedom promises can be overshadowed by pressures from offended constituents.
The plaintiff Dr. Timothy Jackson, a Professor at UNT and a Scholar of Music Theory. 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. The Center for Schenkerian Studies was previously located at UNT, which Plaintiff also directed. Plaintiff was also a founding member of the Journal of Schenkerian Studies …, which was formerly published by the UNT Press.
At a Society for Music Theory convention in November 2019, Plaintiff’s field of expertise came under fire. Philip Ewell, an African professor at Hunter College of New York City University, gave a plenary talk titled “Music Theory’s white Racial Frame.” Professor Ewell attacked music theory as being “deeply-rooted white” during the talk. He also described Schenker’s racism and German nationalism. 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.
A call for papers was sent by the Journal to Society for Music Theory members, which included Professor Ewell. Walls was involved in almost every aspect of the symposium, including its conception and publication. The symposium idea was conceived in an email conversation between Plaintiff, Walls.
These symposium submissions reflected many views on Professor Ewell’s arguments. They were published in The Journal in July 2020. Plaintiff wrote one of these pieces. He accuses Professor Ewell, without contextualizing Schenker, of failing to talk about the history of Schenker’s views on race in his lifetime and of refusing to admit that Schenker was an anti-Semitic victim.
Plaintiff suggested that Professor Ewell’s critiques of Schenker may have been anti-Semitic. Plaintiff supported this assertion by citing studies that claim Blacks have higher anti-Semitic beliefs than whites. Plaintiff concluded his article by stating that there is a lack of African American participation in music theory discipline.[ing] up in homes where classical music is profoundly valued, and therefore … lack[ing]The background information you need
It was met with swift backlash. The backlash was swift. Professors all over the country sent emails to “led” and other information. [a]”Social media accusation” of condemning the symposium. The Society for Music Theory Executive Board issued a statement, which included the following:[t]He conception and execution [the]Symposium failed to adhere to the professional and ethical 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.” In this case, one of the defendants published the Student Statement via her Twitter stream.
A majority of Plaintiff’s colleagues from UNT’s Division of Music History, Theory, and Ethnomusicology, signed a response letter endorsing and providing a link to the Student Statement. John Richmond, the Dean of the College of Music, at UNT announced that the College of Music had launched a formal investigation into how the Journal was created and produced. For this purpose, UNT officials established a panel (the “Panel”) that would conduct the investigation.
Walls, who was himself confused by what people wanted when the backlash started, said that he “seemed to be too busy” and “looked at it as if he were a fool.”[ed]To speculate about the [J]Ournal, without ever actually reading it.” He stated further that “the [J]ournal printed all responses it received. The editors also “emphasized the importance of the [call for papers]This [they]You wanted an extensive range of views.”
The Panel published a report, the “Report”, in which they found that the Journal had not adhered to “best practice standards in scholarly publishing” when producing Volume 12. They also made recommendations for the Journal to follow. 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. Some of the suggestions included “1. Changes in the Journal’s Editorial Structure; Transparency in all review and editorial processes[; and] 3. Determining the relationship between them [J]The editorial board and ournal editor team.” The letter was not sent to Provost Cowley or any other members of the Journal faculty.
Dr. Brand, chair of Plaintiff’s section, was informed [Plaintiff]He would be removed by the Journal, and the university would cut off resources that were previously available to the Journal or Center for Schenkerian Studies. Dr. Brand claimed that Dr.[ould]We do not agree with a plan. [Plaintiff]They would be involved in all aspects of day to day operations. [J]Ournal and especially its editorial process were affected by the findings of the panel on editorial mismanagement.”
A week later, Plaintiff submitted his response … to Dr. Brand and Dean Richmond addressed the Panel’s findings and proposed a plan. They also defended their actions and reputation. Plaintiff’s “plan[ned]Stay on the editorial board [Journal]Although in a role that is not clearly defined, [would]Ward[]Recent accusations against the [Journal]of the alleged “power imbalance.” Plaintiff said that “to preserve academic freedom and prevent pretextual abuse of that right,” it was now “absolutely necessary for the editor-in chief to be a full-time, tenured faculty member, whether at UNT, or another institution.” Plaintiff’s Response concluded by noting that he will not be forced from the Journal’s editorial board, but “look.”[ed]We look forward to a successful outcome [the]Ad hoc implementation of the Panel’s recommendations.
Since that time, the Journal is “on ice.” There is currently no editorial board and nobody has submitted an application for editor-in chief. Because of this indefinite suspension, Plaintiff has been de facto removed from the Journal….
Schenker’s First Amendment claims against the University were allowed to proceed by the court:
It is difficult to find a clearer precedent of the Supreme Court in academic matters.
It is obvious that freedom in American universities is essential. It is important to recognize the crucial role that those who train and guide our youth play in democracy. The future of the Nation would be at stake if we tried to impose any restrictions on the intellectual leaders within our universities and colleges. Man cannot comprehend every aspect of education so well that there are no new discoveries. Particularly true in social sciencesIt is not possible to accept all principles as absolutes, especially when there are few. In an environment of distrust and suspicion, scholarship cannot thrive. To be a civilized society, teachers and students should always feel free to question, evaluate and study.
Sweezy v. New Hampshire (1957) (emphasis added); Also, see e.g., Keyishian, v. Bd. of Regents (1967). “The classroom, in particular, is the market place for ideas. Leaders who are exposed to a wide range of ideas that discover truth from a variety of languages, and not through authoritative selections, will be the future of our Nation.”).
Plaintiff claims that the Board Defendants have taken “adverse measures” against Plaintiff, in violation of his First Amendment rights. Plaintiff claims that UNT took certain actions as a retaliation to Plaintiff’s article in The Journal. Plaintiff claims that Plaintiff cannot and will not allege sufficient facts to support a First Amendment claim. …
[U]Plaintiff must present facts which support the standard for First Amendment workplace retaliation. The first element is only being challenged by Defendants. Plaintiff did not allege facts that would support an adverse employment decision, but Defendants only contest the first element. Affair employment, according to the Fifth Circuit is “discharges or demotions, refusals for hire, and refusals to be promoted.” []Reprimands and, in certain cases, transfer.”
Plaintiff claims he was removed de facto from the Journal as a result of the symposium’s critiques of Professor Ewell. It is plausible to assert that this claim is legal. UNT took swift action to respond to the backlash of its displeased faculty and students. The Panel was created to examine the Journal’s editorial practices. Later, it issued recommendations to the Journal about Plaintiff that were to be implemented. Dr. Brand threatened Plaintiff to be expelled from the Journal.
Plaintiff asserts that these actions resulted in him being banished from his Journal. Plaintiff claims that UNT expelled him for speaking in the Journal. At the stage 12(b),(6), the Court views all alleged facts as most favorable to Plaintiff and can therefore reasonably conclude that Plaintiff was disciplined because of controversial comments published in Volume 12 (Journal).
This test differs slightly for university-related claims for suppression of speech. You can find this information here. BuchananThe Fifth Circuit ruled that this was true for professors at public universities.
[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. It is legal to ask the first question: Is professor’s speech protected?
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. The defendants do not contest that the case is about speech of concern to the public. If it is a topic of concern to the community, then speech will be considered speech. The Plaintiff claims that he participated in the publication of a symposium which, according to the responses, clearly interests music theory and other academics. Concerning the second, Plaintiff claims he was removed de facto from the Journal as a retaliation to Professor Ewell’s symposium criticisms. It is plausible, and we’ve already discussed it.
Second component is called the First Amendment free expression test. Pickering-Connick Balancing Test:[i]F Plaintiff’s rights in the speech is more important than those of the government [university’s]Plaintiff’s First Amendment Rights have been violated. Plaintiff’s Complaint alleges a genuine interest to defend Schenker. “The namesake” of the Center for Schenkerian Studies at UNT and publication material in The Journal of which he founded, he claims. Accordingly, this Court finds it plausible that Plaintiff’s interest in his speech outweighs Defendants’ interests in regulating it….
Jackson also received permission from the Court to proceed with his defamation suit against the Student Statement signators, but only after a brief discussion.
After accepting all the facts of Plaintiff’s Complaint as true and viewing them from the perspective most favorable to Plaintiff the Court concludes that Plaintiff’s defamation allegations plausibly indicate a right to relief. A court shouldn’t grant a Rule 12-b(6) motion to dismiss if there is no claim that is clearly insufficient. This would deny Plaintiff the opportunity to present facts supporting his Complaint. The summary judgement stage is a better place to resolve issues relating to Plaintiff’s defamation allegations.