Weiss v. Perez

602 F.Supp.3d 1279

Elizabeth WEISS, Plaintiff,

v.Stephen PEREZ, et al., Defendants.

Case No. 22-cv-00641-BLF

United States District Court, N.D. California, San Jose Division.

Signed May 10, 2022

Ethan Blevins, Pro Hac Vice, Daniel Moshe Ortner, Pacific Legal Foundation, Sacramento, CA, for Plaintiff.

Bradley S. Phillips, Munger Tolles & Olson LLP, Los Angeles, CA, Bryan H. Heckenlively, Natalie Moyce, Munger, Tolles and Olson LLP, San Francisco, CA, for Defendants.

ORDER GRANTING MOTION TO DISMISS WITH LEAVE TO AMEND IN PART; DENYING MOTION FOR PRELIMINARY INJUNCTION

[Re: ECF No. 8, 31]

BETH LABSON FREEMAN, United States District Judge

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.

Now before the Court are two motions: Professor Weiss's motion for a preliminary injunction (ECF No. 8) and Defendants’ motion to dismiss (ECF No. 31). The Court held a hearing on these motions on April 28, 2022. ECF No. 73. 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. Accordingly, Defendants’ motion to dismiss is GRANTED WITH LEAVE TO AMEND IN PART and Professor Weiss's motion for a preliminary injunction is DENIED.

I. BACKGROUND

A. Professor Weiss and Her Controversial Views on Repatriation

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. ECF No. 1 ("Compl.") ¶ 15. 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. Id. ¶¶ 16–17. The University's collection includes Native American remains, cultural items, and x-rays of these remains. Compl. ¶ 18. 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." See Compl. ¶¶ 18, 43–45; ECF No. 31-9 ("Wilcox Rpt.") at 10.

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. See 25 U.S.C. §§ 3001 – 3013. California has passed its own state legislation—the California Native American Graves Protection and Repatriation Act. See Cal. Health & Safety Code §§ 8011 – 8030 ("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." Compl. ¶ 18.

Professor Weiss is a critic of repatriation. Compl. ¶ 19. 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. Id. 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." Id. The book generated controversy among academics and on social media. Id. ¶ 20. About a thousand professors and graduate students signed an open letter calling the book "anti-indigenous" and "racist." Id.

Professor Weiss alleges that she has made these arguments about repatriation for several years without controversy at the University. Compl. ¶ 21. A few years prior, she was "commended" by Defendant Roberto Gonzalez, Chair of the University'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." Id. The University gave her the Austin D. Warburton Award of Merit in 2019. Id.

In the wake of the publication of her book, however, Professor Weiss alleges that she faced "an escalating series of threats and retaliatory actions." Compl. ¶ 22. 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." Id. ¶ 23. At the Zoom event, Professor Weiss alleges she was "repeatedly branded ... a white supremacist" for her views on repatriation. Id. ¶ 24. 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. Id. ¶ 25. 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." Id. ¶ 26. Professor Weiss has always taught and plans to teach her views (as well as contrary views) on repatriation in her classes. Id. ¶ 27. 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. Id. ¶ 28. 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. Id. Jacobs further said that Gonzalez would not retract his statements and that Jacobs was receiving pressure from others to take action against her. Id. Counsel for Professor Weiss then sent a letter to Del Casino, Jacobs, and Gonzalez warning of potential legal action. Id. ¶ 29.

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. Compl. ¶ 31. After the op-ed was published, the University received "multiple vitriolic emails" from academics and the public demanding discipline against Professor Weiss. Id.

On September 18, 2021, Professor Weiss posted a tweet to her Twitter account. Compl. ¶ 32; see also ECF No. 17 ("Weiss Decl.") Ex. 9 (screenshot of tweet). 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. Compl. ¶ 32; Weiss Decl. Ex. 9. 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. Compl. ¶ 32.

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]." Compl. ¶ 33. Del Casino stated that the image was contrary to social science ethics and "laws such as AB 275." Id. Professor Weiss sent an email in response explaining that her handling of remains was consistent with University practice and NAGPRA and CalNAGPRA. Id. ¶ 34. 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. Id. ¶ 35.

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. ¶¶ 42–44. 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. Id. ¶ 43. The letter calls Professor Weiss's actions "prime examples of colonial violence against the [Tribe]." Id. ¶ 45. The letter asserts support for ...