The U.S. Court of Appeals for the Fifth Circuit has denied a motion last week by the University of North Texas to dismiss a lawsuit brought by a tenured professor and music theorist.
The university, which lost an earlier appeal in the U.S. District Court for Northern Texas last January, filed a motion to dismiss the case in the Fifth Circuit court, claiming sovereign immunity and that music professor Timothy Jackson had erred in naming the UNT Board of Regents in his suit.
“UNT respects the Fifth Circuit Court of Appeals’ ruling allowing Dr. Jackson to proceed with his suit,” said Julie Payne, the UNT vice president of communications. “The decision was based solely on the facts Dr. Jackson plead and not on the merits of his claim, as explained in the ruling. UNT looks forward to the opportunity to respond to his allegations and show that Dr. Jackson’s faculty colleagues did not defame him and that neither the UNT System Board nor any other UNT System official retaliated against him.”
Jackson, a longtime professor in the UNT College of Music and founder of the Center for Schenkerian Studies and The Journal of Schenkerian Studies, was accused of publishing “racist sentiments” in a symposium published in the last edition of the journal. The symposium assembled reflections and rebuttals to a 2019 Society for Music Theory plenary talk by music theorist Philip Ewell, who is Black, that Austrian music theorist Heinrich Schenker’s analysis contributes to a white racial frame that is a barrier to a more diverse field of music theorists.
Ewell’s plenary talk was well-received and earned a standing ovation. Ewell spoke to the Denton Record-Chronicle about his scholarship and stance on Schenker in 2020, after the journal’s publication sparked an online statement from UNT graduate students in the UNT division of music history, theory and ehtnomusicology to investigate the journal’s policies and procedures and to fire Jackson for promoting racism in it. Critics especially bristled at a passage in Jackson’s essay in the symposium that said the dearth of Black music theorists owes to Black families not valuing classical music.
The university launched an investigation, then paused the journal’s publication and eliminated funding for it. Jackson filed suit, alleging that the university had violated his First Amendment rights and defamed him.
“You know, it surprised me when they appealed,” said Michael Thad Allen, Jackson’s attorney. “The state has a right to appeal at stages where they’re defending sovereign immunity that an ordinary litigant would never be able to appeal.”
In Texas, sovereign immunity shields state agencies from litigation without legislative approval.
“When they lost the motion to dismiss [in January 2022], we were ready to go start discovery,” Allen said. “There’s about a dozen more people we need to depose, and we wanted to find a week, go to Dallas, get everyone in a conference room and just start deposing them one after another.”
The appeals court determined that the university couldn’t avoid litigation using the doctrine of sovereign immunity. The court also denied UNT’s legal claim that Jackson can’t sue the Board of Regents because they weren’t directly involved in the decision to stop publishing the journal. UNT also said regents weren’t aware of the conflict. Allen said they provided documentation that Jackson had sent a letter to regents on July 31, 2020, asking them to intervene in the investigation that he claims violates his First Amendment rights.
“For a Board of Regents to basically take the position that, as long as we don’t know anything, we don’t have to do anything — or if we can maintain ourselves in blissful ignorance, even though we’ve been informed by a letter saying this stupid thing is going on under our noses, we don’t have to do anything and will never be responsible. Who would want the law to be that way if you’re a taxpayer in the state of Texas?” Allen said. “If it had gone differently, that would mean that there is no legal obligation for directors or Board of Regents. They can take a see-no-evil, hear-no-evil, speak-no-evil approach and pretend they don’t know what’s going on. They can be the Sergeant Schultzes of our educational systems.”
Allen said the court’s decision puts college regents across Texas on notice.
“This opinion is very clear that, at the very least, they can get a letter from a plaintiff that says, ‘Hey, they’re trampling all over my constitutional rights out here in this university,’ Allen said. “And if the Board of Regents does nothing, not only will you be able to sue Board of Regents in their official capacity, you will be able to sue them in their individual capacity as well. And that means you will be personally liable as a regent who sat on their hands and did nothing. I think that’s very important. And probably underappreciated about this opinion. Now they are on notice they can’t just sit around and do nothing.”