Weiss v. Perez

Background

Elizabeth Weiss, a tenured physical anthropology professor at San Jose State University, alleged that University officials retaliated against her because she spoke and published views opposing the repatriation of Native American remains and cultural items. Her allegations concerned her book, an opinion article, a social-media post, comments at a University meeting, and related academic speech.

Weiss alleged several retaliatory actions, including restricting her access to the Anthropology Department’s email list, denying sponsorship for a speaker series, threatening or criticizing her academic work, limiting her access to skeletal remains and research space, reducing her curatorial responsibilities, applying research-approval requirements to her work, and failing to assign her to a graduate thesis committee. She brought two claims under 42 U.S.C. § 1983, a federal civil-rights law used here to assert violations of the First Amendment: one claim for retaliation based on speech and one claim involving unconstitutional conditions.

The motion to dismiss

The defendants argued that the case should be dismissed because the Muwekma Ohlone Tribe was a required party, Weiss lacked standing to seek much of her requested injunctive relief, her retaliation claim was not adequately pleaded, and Sunseri and Ragland were improper defendants.

The court rejected the arguments that required dismissal of the claims against the other defendants at this stage. On the pleading issue, the court accepted the complaint’s well-supported factual allegations as true and concluded that the alleged actions, considered collectively, were plausibly severe enough to deter protected speech. The court also found that the timing of Weiss’s speech and the alleged actions plausibly supported her claim that her speech was a substantial or motivating factor.

The court held that the Tribe could be a required and indispensable party for claims or requested relief requiring interpretation or alteration of the University’s directive or CalNAGPRA. But because the claims were plausible without deciding those aspects, the court did not dismiss the case on that ground. The court also found that Weiss’s allegations of threatened future restrictions constituted a real and immediate threat of repeated injury sufficient to support standing at this stage.

Disposition

The court agreed that Sunseri and Ragland should not remain as defendants in their official capacities. It found that they were duplicative of the other named officials and that Weiss had not alleged they were policymakers or could alter her employment conditions. Accordingly, the court granted the motion to dismiss as to Defendants Sunseri and Ragland and denied the motion to dismiss as to all other defendants.

This was a motion-to-dismiss ruling. The court decided only that Weiss’s allegations were sufficient to proceed against the remaining defendants; it did not decide whether the alleged retaliation occurred or whether Weiss will ultimately win.