Countering Allegations of Racism -- in Court

A case that rocked the music field last year is back -- this time in the form of a defamation and retaliation lawsuit against the University of North Texas, one of its graduate students and 17 professors of music history, theory and ethnomusicology.

This phase of the case continues to highlight music theory’s historical lack of diversity and inclusion. It’s also about the boundaries of academic critique. More to the point: Is calling a colleague a racist for his race-based comments against the law?

Timothy Jackson, distinguished university research professor of music theory at North Texas, thinks it is, at least in his case. His suit, filed this month in federal court in Texas, alleges that his colleagues defamed him as a racist for comments he made in the academic journal he founded 20 years ago. And he alleges that North Texas succumbed to the “academic mob” and retaliated against him in violation of his First Amendment rights, by first investigating the journal and then seeking to remove him from it.

“Rather than defend Professor Jackson’s academic freedom, the University of North Texas and its administrators joined the witch hunt,” the lawsuit says. Jackson is seeking a trial by jury and compensatory and punitive damages to “the full extent authorized by law.”

Whiteness in Music Theory

Things began to devolve over a year ago -- with someone else being called a racist. At the late 2019 meeting of the Society for Music Theory, Philip Ewell, associate professor of music at Hunter College of the City University of New York, delivered a plenary address called “Music Theory’s White Racial Frame.” His message was that music theory has been and continues to be overwhelmingly white, that whiteness has shaped the discipline and that this should be interrogated.

“There can be no question that white persons hold the power in music theory -- music theory’s white racial frame entrenches and institutionalizes that power,” Ewell said at the time.

In an extended example of these dynamics, Ewell criticized the influential late music theorist Heinrich Schenker as “an ardent racist and German nationalist” and asked why no one links Schenker’s documented white supremacist views to his approach to music theory.

The field’s “white racial frame seeks to shield Schenker from unwanted criticism,” said Ewell, who is Black.

Defending Schenker -- and More

Jackson, who founded the Center for Schenkerian Studies at North Texas and its Journal of Schenkerian Studies, did not agree with Ewell, to put it lightly. He also objected strongly to the fact that Ewell didn’t mention Schenker was Jewish in Nazi-era Germany and Austria. Schenker’s wife died at Theresienstadt, following his own death in 1935 from natural causes.

In response to Ewell, whose arguments had shaken up music theory, Jackson organized a symposium to be published in the annual Schenkerian Studies. Some of the eventual responses were pro-Ewell. More were not.

In his own contribution to the symposium, Jackson doubted whether the “white frame” could be applied to a Jewish music theorist like Schenker.

Both Schenker and his wife knew “very well that they were considered ‘Other’ by mainstream German-speaking Viennese society, as his Jewish students would be later in America,” Jackson wrote. “Therefore, simply to assume that Jewish Schenkerians are ‘White’ and therefore participate in ‘White Privilege’ in America is surely a naïve, unnuanced, and overly simplistic viewpoint at best.”

Getting more personal, Jackson evoked Ewell’s Blackness to say that his “scapegoating” of Schenker “occurs in the much larger context of Black-on-Jew attacks in the U.S.”

Ewell “only attacks Schenker as a pretext to introduce his main argument: that liberalism is a racist conspiracy to deny rights to ‘people of color,’” Jackson said. Ewell “is uninterested in bringing Blacks up to ‘standard’ so they can compete. On the contrary, he is claiming that those very standards are in themselves racist.”

Concerning music theory’s whiteness, Jackson said Black people should set “different priorities.” A fundamental reason for the “paucity of African-American women and men in the field of music theory is that few grow up in homes where classic music is profoundly valued,” he added.

By contrast, Jackson said that classical music was central to his own grandparents, who were Jewish immigrants.

“We must address African-American students’ lack of foundation, especially music-theoretical, by facilitating their early training with appropriate resources, and by demolishing institutionalized racist barriers,” Jackson wrote. “This is the solution, not blaming Schenker, his students and associates, and practitioners of Schenkerian analysis.”

Backlash to the Symposium

Backlash to the symposium was swift. A group of graduate students in music petitioned their dean, demanding a formal response to what they described as the journal’s “horrendous lack of peer review” and “clear lack of academic rigor.” They asked North Texas, as publisher, to dissolve Schenkerian Studies and consider removing faculty members who had used it “to promote racism.”

The “actions of Dr. Jackson -- both past and present -- are particularly racist and unacceptable,” they wrote.

A majority of the music history, theory and ethnomusicology program’s faculty published its own, similarly critical open letter about the symposium, saying that “responsible parties must be held appropriately accountable” for the issue’s “stereotyping," “tropes" and "personal attacks."

The 17 professors -- all of whom are defendants in the lawsuit -- expressed particular concern about Ewell, saying the treatment of his work “provides an example of the broader system of oppression built into the academic and legal institutions in which our disciplines exist.”

Other groups, including faculty members at Yale University and the University of Michigan, also denounced the symposium, which did not include work from any scholars of color or a submission from Ewell. (Jackson says he put out a call for papers with the entire Society for Music Theory. Ewell says he was never contacted directly to participate.) The society’s executive board even said that the “conception and execution of this symposium failed to meet the ethical, professional, and scholarly standards of our discipline,” and that some essays violated the society’s policies on harassment and ethics.

An Investigation

North Texas announced it was looking into the symposium last summer, keeping in mind academic freedom, the “responsibility” that goes with that freedom and the university’s “commitment to diversity and inclusion and to the highest standards of scholarship and professional ethics.” It appointed a five-member faculty panel from outside the School of Music, experienced in editing scholarly journals, to "examine objectively the processes followed in the conception and production" of the issue.

Jackson’s lawyer, Michael Allen, reached out to the university to dissuade it from its inquiry. An investigation into the journal violated North Texas’s own policy statement on academic freedom and academic responsibility, he wrote in a memo warning of possible legal action. "It is frankly outrageous that that a respected and established scholar should become the victim of a crusade in the name of a vague and specious charge of ‘racism’ over what should be easily recognized as an ordinary dispute over scholarship."

The university attempted to backtrack from the concept of an “investigation” in a response, telling Jackson via email that it had an “interest in the complaints” against one of its publications, and the “discretion, if not the obligation” to look into them. The inquiry proceeded.

Around this time, one graduate student who is not named in the complaint, who worked on the journal, said in a Facebook post that he was intimidated into continuing to edit in the symposium by Jackson. But communications between Jackson and the graduate student included with Jackson’s complaint demonstrate that the student expressed at least initial interest in challenging Ewell's comments via the journal.

Plans for Transformation

The university panel issued its report in November, finding that the symposium’s production did not meet the “standards of best practice in scholarly publication.” The panel's suggestions involved transforming the journal from a somewhat decentralized, mostly graduate student-led publication to one with a clear editorial structure, transparent editorial policies and a faculty editor in chief.

Jackson received a message from his provost the same day, directing him to “develop a plan to address” the panel’s findings by Dec. 18.

One week before that deadline, Benjamin Brand, chair of the department -- who is not being sued -- told Jackson via email that he could not “support a plan according to which you would remain involved in the day-to-day operations of the journal, and its editorial process in particular, given the panel’s findings of editorial mismanagement.”

In that same email, Brand suggested that the journal would be best served by having a single editor in chief “who oversees all aspects of the journal and who is a faculty member at another institution.” He also said he would support Jackson in his previously expressed desire to relocate the journal outside to another institution.

Brand added, “You might consider starting an entirely new journal dedicated to Schenkerian studies, one with a different name, different publisher, and different institutional home. That would provide you and others involved in the project with a cleaner break with the controversy that has surrounded the most recent volume.”

Retaliation and Defamation?

Jackson took this to mean that Brand was trying to block him “from any future involvement in the journal,” as was the university in commissioning the investigation in the first place, according to the lawsuit. This was all in retaliation for Jackson’s defense of Schenker “against Ewell’s attacks, and in retaliation for Professor Jackson’s decision to organize and publish a symposium that was largely (though not entirely) critical of Ewell and his racial grievances.”

The lawsuit accuses one other graduate student in particular of defamation, for comments she made on her now-private Twitter page about Jackson being a racist. It also faults the 17 faculty members who openly criticized Jackson for endorsing and linking to the graduate student petition in their own letter.

The "defendants have published the defamatory statements of their students and are legally responsible for their slander," the lawsuit says. "The defendants published a statement calling Professor Jackson a 'racist' who engaged in 'racist actions,' which is false statement of fact."

Ewell, whom Jackson is not suing, declined to comment on the case.

A number of professors being sued said they’d been directed by the university not to comment. The graduate student being sued, whom Jackson suspects of “spearheading” the student petition, according to court documents, did not respond to a request for comment.

The university declined comment on the ongoing case.

Allen, Jackson's lawyer, said this week that the defendants in the case falsely claimed that Jackson engaged in racist actions for "doing nothing other than publishing articles, some critical and some in support of a Black scholar."

“Clearly,” Allen said, accusing Jackson of racist actions “for doing nothing other than the ordinary work of academic scholarship qualifies as defamation.”

Censorship and Opinions

Asked if Jackson was trying to censor his critics, Allen said “defamation law is not censorship,” as “defamatory statements are not protected by the First Amendment.” Calling the defendants’ statements “opinions” doesn’t make them so, he argued, as “they were assertions of fact that are subject to disproof -- that Timothy Jackson engaged in specific racist actions.”

Other courts have found that “baseless” charges of racism make the defendant liable, Allen added, citing the example of the Gibson’s Bakery v. Oberlin College case in Ohio. In that case, Oberlin faculty members, students and even some administrators accused the local bakery of racial profiling after an employee chased after a Black student who was allegedly shoplifting. The bakery sued Oberlin for libel and other counts and was eventually awarded millions.

In any case, Allen said, the court is an “open forum” in which defendants aren’t silenced but rather called “to speak and justify their defamatory actions in public.” Texas in particular holds that a statement is defamatory "if it tends to injure the person's reputation, exposing the person to public hatred, contempt, ridicule or financial injury, or if it tends to impeach that person's honesty, integrity or virtue," he said.

The "mob" at North Texas trying to get Jackson fired qualifies, Allen continued.

The Foundation for Individual Rights in Education originally backed Jackson, arguing that the university was out of bounds in investigating the journal.

More recently, the group has publicly criticized Jackson. Bringing these kinds of lawsuits is “generally unwise and can often chill or target core protected speech,” it has said. Moreover, FIRE has said, “in most jurisdictions, criticism of another person or their views as ‘racist’ is a statement of opinion, not a statement of fact. Defamation lawsuits targeting critics on this basis often target speech protected by the First Amendment.”

Will Creeley, legal director at FIRE, said this week that the allegedly defamatory speech cited in Jackson’s suit "sure looks a lot like protected expression of opinion."

“Defamation, properly construed, is an important exception to the First Amendment's protection,” Creeley said. “But faculty filing suit against their peers and students for sharp criticism on academic questions risks chilling debate on campus, where it matters most.”

Protected Speech?

Beyond the ethical questions surrounding suing colleagues and students, Creeley said that courts nationwide have held that calling someone racist is protected expression of opinion.

In 2017, for instance, the Tennessee Court of Appeals reversed a lower court’s decision in a case involving a woman's Facebook post accusing a family of being white supremacists because they had pro-Confederate stickers on their car. The county court agreed with the family that the post amounted to defamation, but the appeals court determined that the post, viewed in its “entire context, constitutes non-actionable commentary upon disclosed facts.”

Key to that appeals ruling was the photo of the vehicle accompanying the allegations of white supremacy.

“We take no position on the accuracy of Rung’s assertion regarding the Weidlichs, and we need not,” the decision states, referring to the two parties involved. “Rung’s Facebook post was commentary on an accompanying photograph available for all to see. It is, therefore, of no moment to the resolution of this appeal whether the conclusion Rung expressed was correct. Readers could view the same photograph and decide for themselves.”

At North Texas, the faculty and student statements don’t quote the symposium at length. So they don’t tell the story like the photo in the Tennessee case did. Yet the symposium is part of the public record, and anyone who wishes to read Jackson’s words for him or herself may do so.

Perhaps it’s also instructive to note how Jackson’s symposium made Ewell feel. He told Inside Higher Ed in August that some of the symposium's “worst comments” were anti-Black in that they communicated that Black people should aspire to whiteness.

He said he wouldn’t read the entire issue, however, as it amounted to his “dehumanization.”