The Fifth Circuit Court of Appeals has handed down another defeat to the University of North Texas and a victory to Allen Harris in a lawsuit defending the First Amendment rights of Professor Timothy Jackson, after UNT shut down his journal, The Journal of Schenkerian Studies. The decision can be located here.
In January of last year, Allen Harris had already prevailed in the United States District Court for the Northern District of Texas. The District Court Judge Amos Mazzant rejected UNT’s motion to dismiss the complaint of Professor Timothy Jackson in a strong decision available here.
Ordinarily, the case would then proceed to discovery and eventually to trial. But UNT invoked its right to a special appeal (called an interlocutory appeal) that is allowed only to the state under the doctrine of sovereign immunity. At first, Texas was expected to make an argument defending UNT’s right to do whatever it wanted with Timothy Jackson’s journal.
The Journal of Schenkerian Studies is dedicated to a late 19th/early 20th-century Austrian-Jewish music theorist, Heinrich Schenker, and his systematic, graphic methods of music analysis. In July 2020, Timothy Jackson defended Schenker in the pages of the Journal from an attack by Hunter College Professor Philip Ewell. Professor Ewell labeled Schenker a “racist” and, indeed, the entire tradition of Western classical music as “systemically racist.” This dispute would have remained a typical academic tempest in a teapot, but the University of North Texas swiftly condemned Jackson’s defense of Schenker and classical music. At UNT, defending classical music and its theory against charges of “racism” is a “thought crime.”
Graduate students quickly condemned Professor Jackson for “racist actions” and various other derelictions that they claimed hurt their feelings. Calls for Professor Jackson to be fired quickly escalated, and the vast majority of Jackson’s fellow faculty members jumped on the bandwagon. Sixteen of them signed a graduate student petition calling for his ouster and for censorship of the Journal. Discovery revealed that at least one did so without even reading or understanding what the petition said.
The most important thing at the University of North Texas was to demonstrate pious commitment to “anti-Racism,” no matter how irrational or lacking in substance–or contrary to evidence. As the Dean of the College of Music admitted in open court, the Journal was “put on ice.”
In July 2020, Professor Jackson stood alone against this tide. Had the case been allowed to proceed after Mazzant’s strong decision on the motion to dismiss, the Journal would likely be back in publication by now. Yet censorship is so important at the University of North Texas that the state exercised its right to a special appeal in order to halt discovery in its tracks.
Before the Texas Solicitor General’s office filed its brief, it was expected that the state would defend the university’s rather strained claim to be defending “professional” editorial practices. Perhaps sensing that this argument was a stone-cold loser, however, the state limited its appeal to a hyper-technical issue: Whether Timothy Jackson could sue the Board of Regents under the doctrine established by Ex parte Young, 209 U.S. 123 (1908), a doctrine which every lawyer studies in law school but most swiftly forget thereafter.
Under that doctrine, citizens seeking to vindicate their civil rights may not sue branches of state government, which public universities like the University of North Texas clearly are. Sovereign immunity protects them. Plaintiffs can, however, sue individual state employees in their “official capacity.” As the Fifth Circuit summarized it: “The rule is based on the legal fiction that a sovereign state cannot act unconstitutionally, and therefore, when a state actor [like a university bureaucrat] enforces an unconstitutional law, he is stripped of his official clothing and becomes a private person subject to suit.”
Texas argued that Jackson’s suit should be thrown out because he sued the wrong bureaucrats in their “official capacity.” He could not sue anyone on the UNT Board of Regents because, Texas argued, they had not been directly involved in censoring him.
In its briefing, Texas argued over and over again that the Board of Regents was never involved in violating Professor Jackson’s First Amendment rights. More than a dozen times, Texas stated that the Board “had no direct connection with the specific acts of retaliation” against Jackson.
But, as Allen Harris pointed out, this was a misrepresentation to the court. The Fifth Circuit agreed, Professor Jackson had written a letter (July 31, 2020), imploring the Board to intervene to halt the violation of his First Amendment rights. But, as the Fifth Circuit noted, “[r]ather than respond to this letter and do its job of safeguarding the policies of UNT, the First Amendment rights of faculty, and academic freedom, the Board ignored Professor Jackson’s letter.”
The ruling is a clear warning to do-nothing boards of trustees and boards of regents that they have an affirmative duty to ensure that public universities uphold constitutional rights in education. From now on, they will also enjoy a no qualified immunity from personal suit, at least in the Fifth Circuit. UNT’s Board of Regents had direct governing authority over all UNT officials. They too can therefore be held accountable under the Ex Parte Young for sitting idly by while career university bureaucrats trampled Professor Jackson’s free speech.
An appeal on this narrow, technical issue will help civil-rights plaintiffs going forward. It clarifies the rights of plaintiffs and who can be sued.
In the end, however, UNT’s appeal has to be considered a delaying tactic. By filing this appeal, UNT and the State of Texas froze discovery for over a year and a half. And even if the state’s hyper-technical argument had prevailed, ultimately Jackson would have only amended his complaint and named the “correct” institutional bureaucrats. There was never any risk that this narrow issue could cancel Jackson’s lawsuit.
Fortunately, the Fifth Circuit Court of Appeals squelched Texas’ effort to put technical form over legal substance. Nevertheless, the entire process can only be considered an enormous waste of taxpayer resources as well as a delay of justice for Timothy Jackson—all in the name of the ongoing censorship of Professor Jackson and the Journal of Schenkerian Studies.
Jonathan Mitchell, former Solicitor General of Texas, was lead appellate counsel on Jackson’s brief-in-chief. Texas made several additional minor arguments, including the argument that the University of North Texas’ ongoing censorship of Jackson and the Journal did not constitute a continuing injury, which the Court of Appeals also rejected.
