Appeals Court: Texas Board of Regents Members Not Immune From Suit by Prof. Whose First Amendment Rights Allegedly Were Violated
The appeals court affirmed a lower court’s refusal to dismiss the professor’s lawsuit on grounds his attorney called ‘hyper-technical’ and aimed at delaying proceedings.
A federal appeals court rejected an attempt to dismiss the lawsuit of a professor penalized for responding to accusations of racism in music theory. The decision allows the professor’s lawsuit to continue against University of North Texas (UNT) Board of Regents members for First Amendment retaliation.
The firm representing the professor praised the decision and accused the defendants of using “a delaying tactic” that halted proceedings “for over a year and a half.”
In 2020, an academic accused early 20th-century Austrian music theorist Heinrich Schenker of racism and argued Schenker’s views tainted modern music theory. In response, UNT music professor Timothy Jackson “published an article defending Schenker.”
Jackson published the defense in UNT’s Journal of Schenkerian Studies, a journal he founded dedicated to “all facets of Schenkerian thought, including theory, analysis, pedagogy, historical aspects, and reviews of relevant publications.”
Jackson’s defense of Schenker attracted considerable controversy at UNT, as Legal Insurrection reported. UNT graduate students, later joined by faculty, condemned Jackson and accused him of expressing “racist sentiments.” William Jacobson, Legal Insurrection founder, opined on the climate in academia leading to this controversy:
Prof. Jackson’s case was particularly illustrative of the mania that swept academia, where not pledging and evidencing allegiance to every last dogma was viewed as heresy. Prof. Jackson’s alleged offense was disputing claims that a noted historical music theorist was racist. That’s it. Disagreeing was enough to whip up the academic mob.
UNT officials allegedly “block[ed] Professor Jackson from any future involvement in the journal,” according to Jackson’s complaint.
A federal district court rejected the defendants’ motion to dismiss Jackson’s lawsuit, and the defendants appealed. The defendants argued sovereign immunity barred the suit and that Jackson lacked standing to sue. The U.S. Court of Appeals for the Fifth Circuit rejected these claims.
“Sovereign immunity bars private suits against nonconsenting states in federal court,” according to the appeals court, and the doctrine extends to “suits against state actors in their official capacities that are effectively suits against a state.”
The appeals court held this lawsuit falls within a narrow exception to the doctrine of sovereign immunity that exists when an official enforces an unconstitutional policy, which makes the official “a private person subject to suit.”
The appeals court also held Jackson had standing because he alleged an “invasion of a legally protected interest” that stemmed from the regents’ refusal to relieve him from “the ongoing violation of his First Amendment rights,” even if the regents’ were not directly involved in the violation.
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Comments
Make more personally (as well as professionally) liable!
Perhaps the only way this lunacy will every stop. Well, that or killing them all. But that seems rather unsavory.
Yes!
Racist thoughts, speech and writing, while perhaps disagreeable to some, are still within the protections of the First Amendment. In fact, because they are objectionable to some, such ideas are the very reason for having/needing those protections. So-called “hate speech” (in the eyes and ears of some) is not outside the 1A.
Since the Regents can be sued as individuals and be liable individually, does this mean they can also be found personally liable to pay the legal fees of the plaintiff if he wins?
That would certainly be bad news for all the Karens out there.
I don’t see in the article where the Board of Regents had anything to do with anyone. Why is he suing them and not the faculty? Did the article leave out where he appealed to the Regents for relief?
‘UNT officials allegedly “blocked Professor Jackson from any future involvement in the journal,” according to Jackson’s complaint.’
The Board or Regents have an obligation to look into the welfare of any member of their community under their purview who’s welfare is at serious risk. It is a simple issue of overall fairness to the individual. The regents cannot simply look the other way.
That is one of the stupidest comments on a blog known for terminally stupid people. There is no such duty of care and it is not the basis for suit. Read Milhouse to get educated.
Well, so far two judges think there’s a basis for a suit. I bet if you read the opinion whose text is shown above you’ll find out what the basis is.
I read it but still see no reason to involve the board. Enlighten me on what I’m not seeing
I already gave you the answer:
‘UNT officials allegedly “blocked Professor Jackson from any future involvement in the journal,” according to Jackson’s complaint.’
That is the basis for the suit.
Did they know about this before shtf or were they kept on the dark?
So far two judges think there’s a basis for a suit. I bet if you read the opinion whose text is shown above you’ll find out what the basis is.
“Did the article leave out where he appealed to the Regents for relief?”
The court’s opinion is part of the article. The explanation of the role of the Board and why they are able to be sued starts on page 5. The money shot is on page 7, where the court states that Jackson did, indeed, write a letter directly to the Regents appealing for relief and that they ignored it.
Ah, thanks. Read it through but must have glossed over that.
Hopefully the public officials, public employees and the bureaucracy within the borders of the 5th Circuit (and elsewhere) will take this object lesson to heart; when your actions are unconstitutional you can’t hide behind sovereign immunity. Unfortunately it’s probably going to take more object lessons and painfully punitive damages to get this concept through their skulls.
What I got out of this story is that racists are in such high demand but in so short of supply that the bottom of the barrel must be scraped to come up with a long dead Austrian music critic.
Great comment.
Boards of Regents are about to find out that they can no longer ignore controversies over faculty, student, and administration biases against conservatives and issues of free speech.
From now on, when speakers are blocked from speaking, when posters are ripped down, when students who are tabling have their tables flipped over, the people sitting at them threatened and their materials destroyed AND WHEN APPEALING TO THE ADMINISTRATION GETS NO EFFECTIVE RESPONSE – appeal to the Board of Trustees directly for relief. And when they do nothing sue them personally, and cite this decision.
After re-reading the opinion I believe the “money shot” of bad news for the University is the paragraph “Ex Parte Young created a narrow doorway through the sovereign immunity defense. To turn the key on the Ex Parte Young door, the plaintiff must sue the right defendants, and ask for the right remedy. Here Jackson has done both”
Jackson had the right lawyer who knew his/her business but the law shouldn’t be so technical I think. One wrong move and it was over for him.
Once again, most people who commented here never read the full article, and definitely never read the complaint, but still decided to comment here anyway. This happens over and over again.