A San Jose State anthropology professor has lost her legal attempt to regain access to the university’s collection of Native American remains after she was caught up in a cultural firestorm over her tweeted photo smiling with an indigenous skull.
In a showdown over academic freedom, tenured professor Elizabeth Weiss argued in a lawsuit filed in February that the university retaliated against her and violated her First Amendment rights when it closed off the collection for research.
But this week, U.S. District Court Judge Beth Labson Freeman dismissed Weiss’s request for a temporary injunction on the university’s ban. The judge also pointed out that Weiss cannot use the First Amendment as a “shield and a sword” to protect her own controversial statements and to silence the First Amendment rights of those who disagree.
Weiss, a professor at San Jose State since 2004, had claimed she was the target of a “woke activist mob” for the backlash she suffered after tweeting a photo of herself returning to campus after COVID lockdowns last fall, holding a skull with her bare hands and writing “So happy to be back with some old friends.”
The university had argued, however, that it closed off the collection to everyone as it prepares to return the remains to the Muwekma Ohlone tribe. But Weiss says it directly targeted her — the only physical anthropologist on campus who studies and catalogs the remains.
Weiss, an avowed atheist, has been a vocal critic of efforts to return indigenous remains to tribes, saying it favors religion over scientific research. Her troubles began in 2020, she said, when hundreds of academics signed a letter condemning her “racist ideology” for a book she authored against repatriation. A Zoom webinar that followed in June 2021 hosted by the dean of the College of Social Sciences, entitled, “What to Do When a Tenured Professor is Branded a Racist,” “repeatedly branded” her a “white supremacist,” she claimed in her lawsuit,
The lawsuit also claimed that the university succumbed to pressure from tribal leaders and others and “embarked upon a poorly disguised campaign of retaliation” and “publicly tarred (her) as a racist.”
In the ruling, the judge dismissed Weiss’s efforts to force the school to reopen the collection, saying that the Muwekma Ohlone tribe that once thrived throughout the Bay Area would have had to be part of the lawsuit because it involves the bones of its ancestors. But, in a legal conundrum, since the tribe has sovereign immunity, it can not be sued.
Weiss was teaching late this week and referred all questions to her lawyer, Daniel Ortner, who is representing Weiss pro bono through the Pacific Legal Foundation, a libertarian law firm representing individual liberty cases. He called the ruling “disturbing.”
“We’re so disappointed by it because what it means is a public university, a public institution of the state of California, cannot be sued for violating someone’s First Amendment rights if an Indian tribe is involved,” Ortner said.
He emphasized that Weiss had “no desire to stop any one from speaking out. They can criticize Professor Weiss all they want. What they can’t do is use their leadership position to punish her by changing what she can or can’t say in the classroom or by limiting her ability to conduct research.”
He contends that the university, which locked down the indigenous collection in October, has also been slow to give Weiss access to non-Native American collections — another sign of retaliation.
Val Lopez, chairman of the Amah Mutsun Tribal Band and tribal liaison to the UC system over repatriation efforts, said regardless of the legal opinions in the case, he sees Weiss as “someone who has been so disrespectful to the culture and spirituality of California tribes.”
She knew as an anthropologist, he said, that she was “totally disrespecting tribal culture, tribal spirituality. She wanted to flaunt, she wanted to put it out there and just try and show domination of her position.”
Native Americans believe that their dead should be buried and undisturbed so their spirits can go “to the other side,” he said, and at the very least, the bones of those now in research institutions awaiting repatriation should be shown respect.
