Won: Court holds that case against University's suppression of Professor's free speech may proceed, leading to settlement

Dr. Elizabeth Weiss, a highly decorated, fully tenured professor of anthropology at San Jose State University (SJSU), specializes in osteology—the study of human skeletal remains.

As part of her work, she has published and spoken about the Native American Graves Protection and Repatriation Act (NAGPRA) and similar laws, which require laboratories and museums to hand over certain Native American remains to the tribes for reburial. Prof. Weiss’ scholarship has for decades criticized these laws as stunting scientific research and has argued that such laws may even be unconstitutional.

Prof. Weiss’ views are not new, but they are controversial. Though many scholars in her field reject them, she has written about these topics for years without criticism or pushback within the university. The university, in fact, has repeatedly lauded her as a prolific and rigorous scholar and lecturer.

That all changed in late 2020, following the publication of her book titled Repatriation and Erasing the Past, co-authored with attorney James W. Springer. The book was both peer-reviewed and published through a reputable academic press. Nevertheless, critics ignored the merits of the book’s arguments and instead launched a campaign to label Prof. Weiss as anti-Indigenous and racist.

Rather than stand by Prof. Weiss, the university joined in on the criticism, sponsoring a speaker series that called for shutting down views such as hers. At a Zoom event entitled “What to Do When a Tenured Professor is Branded a Racist,” university officials repeatedly called Prof. Weiss a racist and a white supremacist. She has also been told that if she dares to teach her views to her students, she could face disciplinary action or other forms of retaliation.

Fortunately, the First Amendment protects Professor Weiss’ right to research, write about, and teach her views to her students. The university cannot simply silence her because it disagrees with her views.

Prof. Weiss contacted Pacific Legal Foundation prior to the Fall 2021 semester, and we wrote a letter on her behalf warning the university that any action taken against her for her speech would violate not only norms of academic freedom, but also the First Amendment.

The university did not back down, however. After Prof. Weiss posted a photo on Twitter of herself with remains, the university removed her access to the skeletal collection that forms the basis for her academic research, going so far as to change the locks to bar her from the curational facility. And the threats to remove her from the classroom still hang over her head.

Prof. Weiss is now fighting back in federal court to defend her right to research, write, and teach differing perspectives, free of viewpoint discrimination and threats of retaliation.

What’s At Stake?

  • Our right to free speech, including academic research, writing, and instruction, deserves the highest level of constitutional protection.
  • Government officials cannot suppress expression just because they disagree with the speaker’s viewpoint.

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