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Academic Freedom, Native American Remains, and Tribal Sovereign Immunity

By Eugene Volokh

From Judge Beth Labson Freeman (N.D. Cal.) in Weiss v. Perez, decided Tuesday:

In this case, Elizabeth Weiss, a tenured professor of physical anthropology at San Jose State University, alleges that the University enacted Interim Presidential Directive PD 2021-03, which restricted access to and use of Native American remains housed at the University. The University claims the provisions in the Directive are required by recently amended state law and enacted as part of a process to prepare for repatriation of remains to a local Native American tribe, but Professor Weiss asserts that the policy was in fact promulgated in retaliation for her speech expressing opposition to repatriation of Native American remains. Professor Weiss brings two claims under 42 U.S.C. § 1983 for violation of her First Amendment rights and seeks an injunction barring the University from enforcing the Directive against her or retaliating against her for her views on repatriation….

The Court finds that the Muwekma Ohlone Tribe is a required party under Rule 19 to adjudication of Professor Weiss's claims about the Directive. Because the Tribe has sovereign immunity from suit and thus cannot be joined, Professor Weiss's claims regarding the Directive must be dismissed with prejudice.

The Court will, however, give Professor Weiss leave to amend her complaint as to her allegations about retaliation in the form of restricting access to and use of non-Native American remains and retaliation for her protected speech as it may pertain to her teaching and curational responsibilities….

You can read the (long) opinion, but here's the factual summary:

Professor Elizabeth Weiss is a tenured professor of physical anthropology at San Jose State University where she specializes in osteology, the study of human skeletal remains. Since 2004, she has served as the University's Collections Coordinator who is in charge of establishing protocols for and facilitating research on the University's collection of skeletal remains. The University's collection includes Native American remains, cultural items, and x-rays of these remains. This includes remains of ancestors of the Muwekma Ohlone Tribe, which comprises "all of the known surviving American Indian lineages aboriginal to the San Francisco Bay region who trace their ancestry through the Missions Santa Clara, San Jose, and San Francisco."

Both federal and state law impose restrictions on the treatment of Native American remains. Congress passed the Native American Graves Protection and Repatriation Act ("NAGPRA") in 1990. California has passed its own state legislation—the California Native American Graves Protection and Repatriation Act … ("CalNAGPRA"). Both sets of statutes restrict the use and handling of Native American remains and cultural items and establish a process through which Native American tribes can file requests for the return of remains or cultural items through what is known as "repatriation." Professor Weiss alleges that she has "always complied strictly with NAGPRA and [CalNAGPRA]" and has ensured that researchers have communicated with members of the relevant Tribes to "ensure culturally appropriate research."

Professor Weiss is a critic of repatriation. In 2020, she published a book entitled "Repatriation and Erasing the Past," which criticizes NAGPRA, CalNAGPRA, and similar state laws that require universities and museums to return Native American remains to tribal descendants. Professor Weiss believes 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 controversy among academics and on social media. About a thousand professors and graduate students signed an open letter calling the book "anti-indigenous" and "racist."

Professor Weiss alleges that she has made these arguments about repatriation for several years without controversy at the University. A few years prior, she was "commended" by Defendant Roberto Gonzalez, Chair of the Univeristy's Anthropology Department, for her ability to "spark lively discussions among various stakeholders" and to "boost the department's national reputation as a center that fosters creative and unorthodox viewpoints on important issues." The University gave her the Austin D. Warburton Award of Merit in 2019.

In the wake of the publication of her book, however, Professor Weiss alleges that she faced "an escalating series of threats and retaliatory actions." In June 2021, Defendant Walt Jacobs, Dean of the College of Social Sciences and the University, hosted a Zoom webinar entitled "What to Do When a Tenured Professor is Branded a Racist." At the Zoom event, Professor Weiss alleges she was "repeatedly branded … a white supremacist" for her views on repatriation. Defendant Gonzalez allegedly implied at the Zoom event that he would take adverse action against her if she was not tenured, suggested that she was "professionally incompetent," and agreed that it would be "unethical" to allow her to teach her views to students. Gonzalez said he would try to prevent Professor Weiss from teaching her viewpoint in the classroom, but that he "could not do anything about her employment status until her tenure review came up several years down the road."

Professor Weiss has always taught and plans to teach her views (as well as contrary views) on repatriation in her classes. After the Zoom event, Professor 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 Defendant Vincent Del Casino, the Provost of the University, 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. Counsel for Professor Weiss then sent a letter to Del Casino, Jacobs, and Gonzalez warning of potential legal action.

On August 31, 2021, Professor Weiss published an op-ed in The Mercury News and The East Bay Times outlining her critique of AB 275, which had amended CalNAGPRA. After the op-ed was published, the University received "multiple vitriolic emails" from academics and the public demanding discipline against Professor Weiss.

On September 18, 2021, Professor Weiss posted a tweet to her Twitter account. The tweet stated, "So happy to be back with some old friends @SJSU #anthrotwitter #archaeotwitter". Weiss Decl. Ex. 9. Attached to the tweet was a photo of Professor Weiss smiling and holding without gloves a Native American skull from the University's collection. Professor Weiss alleges that she and other "renowned anthropologists and journalists have frequently posted similar images of scientists holding skeletal remains without controversy," and that the Anthropology Department had several similar photographs posted on its website at the time of the tweet.

The tweet ignited a firestorm of controversy. Eleven days later, Del Casino published an open letter declaring that the tweet "ha[d] evoked shock and disgust from our Native and Indigenous community on campus and from many people within and outside of [the University]." Del Casino stated that the image was contrary to social science ethics and "laws such as AB 275." Professor Weiss sent an email in response explaining that her handling of remains was consistent with University practice and NAGPRA and CalNAGPRA. The same day, Professor Kimberly Robertson of California State University, Long Beach, a member of the Muscogee (Creek) Nation, wrote a letter to the Native American Heritage Commission ("NAHC")—the body that oversees repatriation of Native American remains—demanding that the University remove Professor Weiss from her teaching post and bar her from further interaction with Native American remains.

On November 30, 2021, a University professor circulated a letter entitled "Statement of Support with the Muwekma Ohlone Tribe for Respectful Return of Ancestors at San Jose State University and in the CSU." Compl. The letter was written by the California State University East Bay Indigenous Acknowledgment Collective, an organization of tribal members, students, and faculty in the CSU system. The letter calls Professor Weiss's actions "prime examples of colonial violence against the [Tribe]." The letter asserts support for "the barring of [Professor] Weiss from access to the remains as well as to related archaeological materials for the duration of the return of ancestors from SJSU." …

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 has four provisions governing the University's "curated collections of human remains, artifacts, and funerary objections" …:

  • The curation spaces at SJSU that house the Collections will be exclusively managed by the SJSU NAGPRA Coordinator and the SJSU Tribal Liaison, supplemented by student assistants who are appropriately trained and supervised to assist with the inventory process.
  • The Collections will continue to remain in a locked, secure area on campus, and all access will be overseen by the SJSU NAGPRA Coordinator and the SJSU Tribal Liaison.
  • Any physical access to or use of the Collections, including for research or teaching, will require written approval of the NAGPRA Coordinator and Tribal Liaison.
  • Audio, video, or photographic devices are prohibited in the curation spaces, as is taking photo images or videos of human remains, funerary objects, or the boxes in which these materials are held.

Professor Weiss alleges that the Directive, while defended as a facially neutral protocol implementing legal duties, was enacted to retaliate against her for her views on repatriation and is not required by NAGPRA or CalNAGPRA. Professor Weiss alleges that she is the University's only physical anthropologist and only faculty member who regularly accesses skeletal remains for research. The University admits that the Directive was a "direct result … of consultation that [it] had with the affected [T]ribe" and the NAHC. Professor Weiss alleges that other California universities' NAGPRA-related policies are not so strict.

The Directive has affected Professor Weiss in several ways. First, since the Directive was announced, Professor Weiss has been locked out of the curational facility that houses all skeletal remains. Professor Weiss made a written request, pursuant to the Directive, for access to the facility to research and take x-rays, but Defendant Charlotte Sunseri (the NAGPRA Coordinator) denied the request. Sunseri informed Professor Weiss that she would not be given access prior to the repatriation of the remains to the Tribe, depriving her of any opportunity to study the remains. This has prevented Professor Weiss from conducting academic research, including two studies that she had been intending to conduct prior to the repatriation. Professor Weiss is also barred from accessing x-rays that were already taken of the remains in the collection.

Second, it cut her out of her contractually assigned leadership duties over the University's collection of human remains. Part of these duties included a curational project regarding the proper sorting of remains that was disrupted by COVID-19 and which Professor Weiss says is critical to compliance with AB 275. Because these curational duties have been eliminated or limited, Professor Weiss says she may not receive teaching credit for those duties, which would force her to take on a greater teaching load and may affect her academic standing at her next tenure review.

Third, Professor Weiss was for a time denied access to non-Native American remains that are not covered by NAGPRA or CalNAGPRA, including the Carthage Collection. Compl. ¶ 65, 67. Gonzalez denied Professor Weiss's request to access the Carthage Collection from the time the Directive was enacted until November 15, 2021. When she was finally allowed access to the Carthage Collection, she was not permitted to access it in the curational facility. Instead, the Carthage Collection was moved to two adjoining rooms outside the curational facility. Professor Weiss says these locations are inferior—one is a classroom in active use, and the boxes in which the remains are stored are poorly organized. The Carthage Collection itself, in any case, is an inadequate substitute for the University's collection of Native American remains because it is much smaller and in worse condition.

Finally, Professor Weiss alleges that the Directive indicates that the University and the Anthropology Department plan future retaliatory actions against her. On November 17, 2021, Gonzalez emailed the Department's standing committee to offer a statement on human remains that denounces Professor Weiss's tweet. The statement was posted on the Department's website, along with a dissenting statement from Professor Weiss. Professor Weiss alleges that Gonzalez plans to put forward additional resolutions targeting her and curtailing her teaching and research….

Weiss sued, and sought a preliminary injunction providing that:

  • Defendants are enjoined from enforcing Interim Presidential Directive, PD-2021-03 to restrict Professor Weiss's access to the curation facilities to conduct research and ban her photography of remains.
  • … Defendants are barred from engaging in any further retaliatory actions against Professor Weiss in response to the exercise of her academic freedom such as removing Professor Weiss from the classroom, altering her courses, or preventing her from expressing her views on repatriation to students.

As to the path forward, after the dismissal of the claims based on the Tribe's sovereign immunity, here's what the court says:

Accordingly, the Court concludes that Professor Weiss's claims regarding the Directive must be dismissed with prejudice because the Tribe is an indispensable party to those claims. The Tribe is not a required party, however, to Professor Weiss's claims that do not involve the Directive—namely, claims regarding (1) alleged retaliation in the form of restricting access to or use of non-Native American remains, and (2) alleged retaliation for her protected speech as it may pertain to her teaching and curational responsibilities. The Court will consider whether Professor Weiss has adequately pleaded those claims in the context of Defendant's Rule 12(b)(6) motion.

The court concludes that certain claims of retaliation are legally insufficient:

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]."  Being "bad-mouthed and verbally threatened" are not adverse employment actions, "even if taken in response to protected speech." Neither are "[m]ere threats or and harsh words." …

[S]everal instances of Defendants expressing disagreement with Professor Weiss's viewpoints on repatriation are not adverse employment actions. The open letter condemning her book as "anti-indigenous and racist"; Del Casino's statement declaring that there were "many things in the [tweet] image itself that do not align with the values of SJSU or of academic inquiry"; a University professor's email to a faculty listserv attaching a statement of support for the Tribe; and the Anthropology Department's online statement regarding Professor Weiss's tweet, are each instances of Defendants or other University officials expressing their own disagreement with Professor Weiss's positions. None of them amount to an adverse employment action. As this Court has previously held, the First Amendment cannot be "simultaneously use[d] … as a shield (to protect her own statements) and a sword (to silence the First Amendment rights of professors to respond)." … "The academic freedom doctrine protects the professors' rights to comment [in response to plaintiff's] Facebook post, just as the First Amendment protects [plaintiff's] right to make her Facebook post in the first place." …

Professor Weiss makes much of Gonzalez's statements on a Zoom event in early June 2021 entitled "What to Do When a Tenured Professor is Branded a Racist," but as Defendants argue she has not plausibly pleaded these remarks amounted to an adverse employment action or imposition of unconstitutional conditions. Furthermore, the Court agrees with Defendants that Professor Weiss has mischaracterized Gonzalez's statements. Gonzalez begins his remarks by stating his personal disagreement with her position and his opinion that her argument "borders on … professional incompetence" because it was "scientifically shaky." While Professor Weiss alleges that Gonzalez was threatening to prevent her teaching her views on repatriation in the classroom, Gonzalez in fact defended her right to speak and teach on the topic. Finally, even if Professor Weiss's characterization of Gonzalez's remarks was plausible, she has not alleged that Gonzalez is in any position to act upon the alleged threats and actually take concrete adverse employment action against her (or impose concrete conditions on her teaching). When Professor Weiss expressed concerns to Gonzalez, he told her that University policy "ensures the preservation of academic freedom" and that he would "continue upholding it as long as [he was] affiliated with the University." …

Professor Weiss also alleges that she has lost curational responsibilities as a result of the Directive, which may result in losing teaching credit that she previously received for curation and lead to her having to take on additional teaching responsibilities. But Professor Weiss has not adequately alleged whether the loss of her curational responsibilities relates solely to Native American remains and cultural items or extends to other collections maintained by the University. Furthermore, Professor Weiss does not allege any actual loss of teaching credit or adequate facts supporting a plausible inference that she will lose them in the future. Professor Weiss must fix these deficiencies in an amended complaint to take this course of conduct outside the scope of the Directive.

Finally, Professor Weiss alleges that she has also been denied access to non-Native American remains (the Carthage Collection), and when she was granted access, that she was only allowed to access the remains outside the curational facility in "poor research conditions." Because Professor Weiss seeks only injunctive relief and nominal damages in her existing complaint, the Court focuses the analysis on Professor Weiss's current restrictions on access to the Carthage Collection in "poor research conditions." Professor Weiss alleges that the Directive covers non-Native American remains, but she also alleges (and the Court has found) that there can be no plausible claims that restrictions on non-Native American remains are within the scope of NAGPRA or CalNAGPRA such that the Tribe would be an indispensable party to those claims.

But the court gives leave to refile an amended complaint:

Still, Professor Weiss has alleged that the curational facilities house Native American remains and are thus within the scope of the restrictions imposed by the Directive. In an amended complaint, Professor Weiss must attempt to state a claim based on restrictions not applicable to Native American remains….

Leave to amend her allegations regarding (1) retaliation in the form of restricting access to or use of non-Native American remains, and (2) retaliation for her protected speech as it may pertain to her teaching and curational responsibilities … would not be futile. Professor Weiss may face challenges in asserting factual support for these courses of conduct to take them outside of the scope of the Directive, but leave to amend "should be granted if it appears at all possible that [Professor Weiss] can correct the defect[s]" identified. Leave to amend will accordingly be granted to allow Professor Weiss to take those alleged actions outside the scope of the Directive….

The post Academic Freedom, Native American Remains, and Tribal Sovereign Immunity appeared first on Reason.com.

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