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Constitutional Law

Aug. 4, 2023

San Jose state professor secures favorable settlement in battle for academic freedom

In an all-too-common sequence of events, Professor Elizabeth Weiss became the target of an activist campaign after she published "Repatriation and Erasing the Past." This book argues that repatriation - the requirement that skeletal remains and other artifacts be returned to Native American tribes - is a bad policy and violates the First Amendment.

David Hoffa

Attorney, Pacific Legal Foundation

A year-and-a-half-long legal battle over academic freedom concluded when Professor Elizabeth Weiss, an anthropology professor at San Jose State University, agreed to retire as part of a settlement to dismiss her First Amendment lawsuit against SJSU. The settlement ensures Professor Weiss full retirement benefits and emeritus status, allowing her to pursue new research and speak her mind without facing the risk of professional destruction again.

Professor Weiss has worked at SJSU since 2004, where her research has focused on osteology, the study of bones. For over 16 years, she was highly regarded by her peers and students - the former praised her research and service to the university, and the latter regularly commented on her passion in the classroom. That changed in 2020 after she refused to toe the line of academic orthodoxy.

In an all-too-common sequence of events, Professor Weiss became the target of an activist campaign after she published "Repatriation and Erasing the Past." This book argues that repatriation - the requirement that skeletal remains and other artifacts be returned to Native American tribes - is a bad policy and violates the First Amendment. As unfortunate as it was predictable, this sparked outrage that Weiss, who has spent her career respecting the lives of deceased individuals, is a callous, grave robbing, colonizing racist, among other degrading accusations. Rather than standing by their decorated colleague to defend academic freedom, university officials threw Professor Weiss to the mob.

In response to the outcry, university officials retaliated against Professor Weiss, including: restricting her access to research resources; placing materials in settings unconducive to research; proposing research protocols that would hinder her research; eliminating her duties as coordinator of the university's collection of skeletal remains; publicly denouncing her as racist and professionally incompetent; applying inconsistent policies for inviting speakers to campus; closing intra-university communication channels; threatening to prohibit her from sharing her repatriation views in class; and preventing her from serving on a Master's thesis committee.

But Professor Weiss was not prepared to let herself become another head above the mantle of outrage mongers. With the help of Pacific Legal Foundation, she filed a lawsuit in January 2022 to vindicate her academic freedom. Through this action, Professor Weiss was able to reverse university officials' course on many of their retaliatory actions. After long delays, she was able to gain access to and research Tunisian skeletal remains. She also invited speakers to campus and forestalled university officials' threats to censor her classroom content or restrict her ability to photograph remains. She even got the university to revoke a research protocol that prevented "menstruating personnel" from handling or even being near Native skeletal remains.

Unfortunately, the university was aided by a court order dismissing her allegation that removing her curation coordinator duties was retaliatory, blocking her ability to regain access to most of the skeletal remains in the university's possession. Because the university claimed its actions were taken to comply with California repatriation laws, the court held that Professor Weiss's allegation could not proceed without joining Native tribes as defendants, which could not be done because of their immunity from suit.

Because these remains were no longer in her reach, Professor Weiss's prospects for a sustainable research agenda at SJSU soon appeared slim. Thankfully, her settlement ensures that she can pursue her goals elsewhere. Professor Weiss believes that had she not filed suit, she would have been fired, thus losing her retirement benefits and emeritus status, which are crucial to her ability to pursue a post-retirement research agenda. Her settlement agreement ensures she retains these benefits after retiring on an accelerated timeline.

Professor Weiss will begin a fellowship with Heterodox Academy in the fall while receiving her full SJSU salary and service credits toward retirement. Her courage to stand against the mob and her university shows that academic freedom can still win, even though it can be an uphill battle.


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