Appeals Court: Texas Board of Regents Members Not Immune From Suit by Prof. Whose First Amendment Rights Allegedly Were Violated
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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