0001
 1              UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF TEXAS
 2                    SHERMAN DIVISION
 3
 4  Case No. 4:21-cv-00033-ALM
 5  - - - - - - - - - - - - - - - - - -X
    TIMOTHY JACKSON,                   :
 6                   Plaintiff         :
                                       :
 7  VS                                 :
                                       :
 8  LAURA WRIGHT, et al.,              :
                     Defendants        :
 9  - - - - - - - - - - - - - - - - - -X
10
11
12
13            Videotaped deposition of DR. PHILIP ADRIAN
    EWELL taken at the offices of Regus, 157 Church
14  Street, 18th Floor, New Haven, Connecticut, before
    Clifford Edwards, Certified Shorthand Reporter and
15  Notary Public, in and for the State of Connecticut
    on September 19, 2024, at 10:09 a.m. EDT.
16
17
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25
0002
 1  A P P E A R A N C E S:
 2  ON BEHALF OF THE PLAINTIFF:
 3    Michael Thad Allen, Esq.
      ALLEN LAW, LLC
 4    PO Box 404
      Quaker Hill, Connecticut  06375
 5    m.allen@allen-lawfirm.com
 6
 7  ON BEHALF OF THE DEFENDANTS:
 8    Benjamin S. Walton, AAG  (via Zoom)
      Mary Quimby, AAG  (via Zoom)
 9    Office of the Attorney General
      General Litigation Division
10    State of Texas
      P.O. Box 12548, Capitol Station
11    Austin, Texas 78711-2548
      512.463.0447
12    Benjamin.Walton@oag.texas.gov
13
14  ON BEHALF OF THE WITNESS:
15    Richard Painter, Esq.
      c/o UNIVERSITY OF MINNESOTA
16    318 Mondale Hall
      229 19th Ave. South
17    Minneapolis, Minnesota  55455
      rwpusa18@gmail.com
18
19  ALSO PRESENT:
20    Alejandro Gomez, videographer
21    Timothy Jackson (via Zoom)
22    Cari Jacoby (via Zoom)
23    Renoldo Stowers  (via Zoom)
24
25
0003
 1                       EXAMINATION
 2                                                  PAGE
 3  DIRECT EXAMINATION BY MR. ALLEN                   7
 4  CROSS-EXAMINATION BY MR. WALTON                 244
 5  REDIRECT EXAMINATION BY MR. ALLEN               254
 6  CROSS-EXAMINATION BY MR. PAINTER                256
 7
 8                        EXHIBITS
 9
10  PLAINTIFF'S                                     PAGE
11  Exhibit 1, Re-Notice of Deposition for
12            Philip Ewell                            7
13  Exhibit 2, Theoria Volume 26, 2020              117
14  Exhibit 3, Article Entitled "Music Theory
15            and the White Racial Frame" Written
16            by Philip Ewell, Published in
17            Music Theory Online                   130
18  Exhibit 4, Printout from Society of Music
19            Theory Website                        158
20  Exhibit 5, Article Titled "A UNT Professor
21            Challenged Claims of Racism in
22            Music Theory and Now He's Facing
23            the Music" by Lucinda Breeding
24            Dated August 2, 2020                  164
25
0004
 1                        EXHIBITS
 2                       (continued)
 3
 4  PLAINTIFF'S                                     PAGE
 5
 6  Exhibit 6, Collection of Documents Submitted
 7            by Timothy Jackson to Ad Hoc Panel
 8            Convened at University of
 9            North Texas                            179
10  Exhibit 7, Facebook Exchange, One-Page
11            Document Dated July 25, 2020           191
12  Exhibit 8, Facebook Post by Levi Walls           205
13  Exhibit 9, Document Presented to Ad Hoc
14            Review Panel                           226
15  Exhibit 10, E-mail Exchange Between Philip
16            Ewell and Rachel Gain                  237
17
18  (Reporter's Note:  Exhibits retained by the court
19  reporter and forwarded to Huseby for production.)
20
21
22
23
24
25
0005
 1        THE VIDEOGRAPHER:  This is the
 2   beginning of media number one in the
 3   deposition of Philip Ewell in the matter
 4   of Timothy Jackson v. Laura Wright et
 5   al., case number 4:21-cv-00033.
 6        Today's date is September 19, 2024.
 7   The time on the monitor is 10:09 a.m.
 8        My name is Alejandro Gomez and I'm
 9   the videographer.  The court reporter is
10   Cliff Edwards.  We are here with Huseby
11   Global Litigation.
12        Counsel, please introduce yourself,
13   after which the court reporter will swear
14   in the witness.
15        MR. ALLEN:  My name is Michael Thad
16   Allen, attorney for Timothy Jackson, the
17   plaintiff.
18        MR. PAINTER:  My name is Richard
19   Painter and I am attorney for Philip
20   Ewell, the deponent.
21        MR. WALTON:  My name is Ben Walton.
22   I'm an attorney for the defendants in the
23   lawsuit.
24        MS. QUIMBY:  My name is Mary Quimby.
25   I'm also an attorney for the defendants
0006
 1             in the lawsuit.
 2                  MS. JACOBY:  My name is Cari Jacoby.
 3             I'm an attorney for the University of
 4             North Texas System.
 5                  MR. STOWERS:  My name is Renaldo
 6             Stowers.  I'm an attorney for the
 7             University of North Texas System.
 8
 9                   PHILIP ADRIAN EWELL
10  residing at 324 77th Street, Apartment 1C, Brooklyn,
11  New York 11209, having first been duly sworn,
12  deposed and testified as follows:
13
14                  MR. ALLEN:  Professor Ewell, the
15             first thing we are going to do is I'm
16             going to introduce an exhibit.
17                  This will happen from time to time
18             during the deposition.  There will be
19             documents I'll ask you to examine and
20             I'll ask you questions about them.
21                  So I've marked as Exhibit Number 1,
22             which should be in front of you.
23                  Do we have the marked
24             Exhibit Number 1?
25                  COURT REPORTER:  One moment, please.
0007
 1                 (Whereupon, Plaintiff's Exhibit 1,
 2                 Re-Notice of Deposition for Philip
 3                 Ewell, was marked for
 4                 identification.)
 5                  MR. ALLEN:  And I'm sorry, Richard,
 6             I brought another copy.  This is just the
 7             notice of deposition, but the court
 8             reporter has written on it.
 9                  MR. PAINTER:  I --
10
11                   DIRECT EXAMINATION
12
13  BY MR. ALLEN:
14       Q     This is the document -- I'm going to
15  represent to you that this is the re-notice of
16  deposition.
17             Could I ask you to examine the --
18       A     Uh-huh.
19       Q     -- document?
20       A     Get -- get my glasses on here --
21       Q     And of course we want you to have your
22  glasses on, too.
23             And this is a good time to bring this up.
24  If at any time you need more time to examine an
25  exhibit --
0008
 1       A     Uh-huh.
 2       Q     -- just say so.
 3       A     Okay.
 4       Q     Of course, no one in the room wants you
 5  to be answering questions that you haven't examined
 6  the exhibit to answer and so forth.
 7       A     So all the pages here?
 8       Q     If you could just look it over.  I don't
 9  have many questions about this one.
10       A     Uh-huh.
11             This is a copy of the subpoena that I
12  received; right?
13       Q     Well, that was going to be my question:
14  Do you recognize this document as the subpoena and
15  re-notice of your deposition?
16       A     I think so, yeah.  Yeah.
17       Q     And is it accurate to say you've appeared
18  to give testimony today in response to these
19  subpoena -- this subpoena and this re-notice?
20       A     Yes.
21       Q     And that's the only question I have about
22  that document.  You can put it to --
23       A     Okay.
24       Q     -- the side.
25             At the end of the deposition the court
0009
 1  reporter will take all of the exhibits and will be
 2  essentially the keeper of the record.
 3       A     Got it.
 4       Q     So I wanted to ask you if you have been
 5  deposed before?
 6       A     No.
 7       Q     And before the deposition started, your
 8  attorney and I were discussing the nature of
 9  depositions in your presence.
10             But, again, this is the making of a
11  formal record for the court, so there are several
12  rules of the road we have to abide by precisely
13  because it is a very formal conversation.
14             So in normal conversation, things like
15  you just did to nod or say "uh-huh" or "uh-huh" are
16  perfectly normal and understandable.
17             But for the purposes of creating the
18  record today, I'm going to ask you to answer audibly
19  "yes" or "no," not with partial words or nods of the
20  head to every question; is that clear?
21       A     It's clear.
22             And I would like to ask a question of
23  you; may I?
24       Q     Absolutely.  You may ask me a question at
25  any time.
0010
 1             Although, I'm not here to testify
 2  obviously, but --
 3       A     Of course.  Of course.
 4             If a question that you might want a yes
 5  or no is asked and it requires some equivocation,
 6  that's okay on my part to give such equivocation.
 7             Is that an accurate statement?
 8       Q     I will leave that to the advice of your
 9  counsel.
10             For the purpose of this "deposation" --
11  deposition, I would say you must answer a question
12  "yes" or "no" if there's a yes or no answer.
13       A     Yeah.
14       Q     If you can't answer it "yes" or "no," you
15  should just simply state that and that would give me
16  an opportunity to ask you why.
17       A     Perfect.
18       Q     Is there anything that would interfere
19  with your ability to answer questions truthfully
20  today?
21       A     No.
22       Q     You are not on any drugs?
23       A     No.
24       Q     You are not suffering from any illness
25  that would affect your memory?
0011
 1       A     Nope.
 2       Q     Okay.  You also understand the meaning of
 3  taking an oath; correct?
 4       A     Yup.
 5       Q     And that you are obligated to tell the
 6  truth?
 7       A     Yup.
 8       Q     As you just did, please ask me if you do
 9  not understand a question or you have a question
10  about the question, so to speak.
11             No one has an interest in answering --
12  getting an answer to a question you didn't
13  understand; is that clear?
14       A     Yes.
15       Q     Likewise, if you don't ask a question for
16  clarification, I'm going to assume that you have
17  understood the question as asked.
18             Is that also clear?
19       A     Yup.
20       Q     Thank you.
21             Can you explain for the record what you
22  did to prepare for your depos- -- excuse me --
23  deposition today?
24       A     I went through personal e-mails from a
25  Gmail account from an old defunct account that I
0012
 1  used to use for professional Gmail,
 2  contact@PhilipEwell.com.
 3             I went through Facebook direct messages,
 4  all pertaining to the subpoena and the questions
 5  asked -- may I look here --
 6       Q     Please.
 7       A     -- at this document?
 8                  MR. ALLEN:  And I just -- let the
 9             record reflect the witness is consulting
10             Exhibit 1.
11       A     -- with respect to the documents
12  requested --
13  BY MR. ALLEN:
14       Q     Okay.
15       A     -- and listed at the end of the
16  subpoena.
17             So I looked for relevant items listed in
18  the documents requested.  I, on advice of counsel,
19  put them into a PDF.
20       Q     And let me interrupt you.
21             I'm not going to ask you for anything
22  you've discussed with your counsel.
23       A     Uh-huh.
24       Q     That would be privileged.
25       A     Uh-huh.
0013
 1       Q     The fact that you discussed something
 2  with your counsel, that is not necessarily
 3  privileged --
 4       A     Oh.
 5       Q     -- but the substance, any legal advice,
 6  just -- just so it's clear to you --
 7       A     Understood.
 8       Q     -- and for the record, I am not going to
 9  try to ask questions about that.
10       A     Understood.
11       Q     And you may hear your attorney object
12  from time to time but --
13       A     Understood.
14       Q     -- I'm just asking what you did to
15  prepare?
16             If you met with him, that's fine.
17  Obviously --
18       A     Uh-huh.
19       Q     -- most witnesses do --
20       A     Uh-huh.
21       Q     -- if they have attorneys.
22       A     Uh-huh.
23       Q     But -- but please continue.  Sorry.
24       A     So I put those into a PDF --
25       Q     Uh-huh.
0014
 1       A     -- submitted them to my counsel.
 2             Let's see.  In preparation, anything
 3  else?
 4             That would be it.
 5       Q     And the documents you consulted, were
 6  those produced in response to the subpoena?
 7       A     The PDF document, you are -- you are
 8  asking about?
 9       Q     Uh-huh.
10       A     Yes.
11       Q     Okay.  Were there any documents you
12  consulted which you have not produced in this -- in
13  response to the subpoena?
14       A     Not to my knowledge.
15       Q     Okay.  Did you discuss your upcoming
16  deposition with anyone besides your attorney?
17       A     With my wife.
18       Q     Which is also privileged, incidentally.
19  So I'm just going to move on.
20             Anyone else besides your wife?
21       A     When I first got the subpoena, I
22  discussed it -- I discussed it with the chair of the
23  Department of Music at Hunter College, Mark Spicer,
24  to simply tell him that this had happened.  And we
25  had a phone conversation and that is the extent of
0015
 1  that conversation.
 2       Q     Simply the existence of the subpoena that
 3  the deposition would take place?
 4       A     Exactly.
 5       Q     Did he give you any advice?
 6       A     He did not.
 7       Q     What did he say?
 8       A     "Thanks for letting me know."
 9       Q     Okay.  That was a little bit of the
10  preliminary necessit- -- necessaries for a
11  deposition.
12             I'm going to move on to ask you some
13  questions about the basic background to your career.
14             So could you briefly describe your
15  educational career starting with your undergraduate
16  degree on up through the present?
17       A     Yeah, of course.  I went to Stanford
18  University undergrad, graduated in 1989 with a
19  degree in music.  I'm a cellist.
20             So after that I was accepted to a masters
21  program at Queens College, City University of New
22  York.  Moved to New York.  That was a two-year
23  program.
24             And I then went to Russia to study cello
25  in St. Petersburg, St. Petersburg Conservatory of
0016
 1  Music.  And at that time I was applying to Ph.D.
 2  programs and DMA programs as a cellist, so I had a
 3  bit of a fork in the road:  Will I become a
 4  professional cellist; will I become a music
 5  academician?
 6             I had offers for both DMA programs and
 7  Ph.D. programs --
 8       Q     Can I interrupt you only briefly?
 9             Can you state for the record what a DMA
10  is?
11       A     Uh-huh.  Doctor of Musical Arts.
12       Q     Okay.
13       A     And that's generally for per- --
14  classical performance people mostly in the United
15  States.  It's -- it's a degree that's not really
16  offered in countries other than ours.
17       Q     And was there a degree you received from
18  the Conservatory of St. Petersburg?
19       A     A certificate.
20       Q     How long did it take you to earn the
21  certificate?
22       A     I was there for two -- over two years and
23  it was something of the order of a -- of a special
24  certificate for foreign students who'd come to do
25  graduate work but it was really
0017
 1  performance-oriented.
 2       Q     Uh-huh.
 3       A     So there wasn't a whole lot of classroom
 4  time as part of that certificate.
 5             And then I decided ultimately to enroll
 6  at Yale University.
 7       Q     Uh-huh.
 8       A     That was 1994.  And I finished with a
 9  Ph.D. in music theory there in 2001.
10       Q     Okay.  And so when did you return from
11  St. Petersburg?
12       A     To start, in 1994.
13       Q     Okay.  So you were starting in
14  St. Petersburg in 1992?
15       A     Not quite.  I first went in the summer of
16  '91 --
17       Q     Uh-huh.
18       A     -- to study language in Leningrad USSR.
19       Q     Uh-huh.
20       A     I had a program to do language -- to
21  continue language study that fall, but it was not a
22  good program.  This was CIEE, if I'm not mistaken,
23  Council on International Educational Exchange.
24             And I ended upcoming back to DeKalb,
25  Illinois, which is -- was my hometown.
0018
 1             And for the fall of '91, I was in DeKalb
 2  and I studied cello and I did some stuff at Northern
 3  Illinois University, studied cello with Marc
 4  Johnson.  He was the cellist of the Vermeer Quartet.
 5  And then it was January of '92.
 6             That whole fall of '91 I was trying to
 7  get back to Russia because I knew I wanted to study
 8  cello in Russia.  And I was able to -- it wasn't
 9  easy because you needed to get visas and it was
10  still kind of a Soviet transitioning -- right -- to
11  post-Soviet.
12       Q     Uh-huh.
13       A     But I did get a visa and I went back in
14  January of '92 to study at the conservatory in
15  St. Petersburg.
16       Q     So you lived along with the Russian
17  people the collapse of the Soviet Union, it sounds
18  like?
19       A     Yes, kind of.  I -- I was not there in
20  the fall of '91, which is when Leningrad became
21  St. Petersburg.  That --
22       Q     Uh-huh.
23       A     -- was October --
24       Q     Uh-huh.
25       A     -- when Gor- -- Gorbachev basically went
0019
 1  on air and said, Okay, peace out.  I'm done.
 2             That was December.  That was Christmas
 3  Eve --
 4       Q     Uh-huh.
 5       A     -- actually of '91 and I was in the
 6  States for that.
 7             But right after that in January -- first,
 8  second week of January, I was back in
 9  St. Petersburg.
10       Q     Okay.  And -- and thank you for that.
11             And I think you said you were from
12  Illinois originally?
13       A     Yes.
14       Q     DeKalb, Illinois?
15       A     Uh-huh.
16       Q     Now, after you graduated from Yale with a
17  Ph.D. in music theory, was it?
18       A     Uh-huh.
19       Q     Can you from that point on briefly
20  describe your professional career?
21       A     Yeah.  I got a job ultimately at the
22  University of Tennessee, Knoxville.
23       Q     Uh-huh?
24       A     And from 2002 to 2007, I was an assistant
25  professor of music theory there.  Did not go up for
0020
 1  tenure.  I left before I did that.
 2             I got a job in Naperville, Illinois,
 3  North Central College.  I was a professor there for
 4  two years and wasn't so happy with the professional
 5  professorship there.
 6             And that's when I went back on the job
 7  market.  I found a job at Hunter College, City
 8  University of New York.  And fall of 2009 is when I
 9  began that position.  And that's the position I
10  still have.
11       Q     And did you achieve tenure at Hunter
12  College?
13       A     I did.
14       Q     What year?
15       A     2016.
16       Q     And are you a -- did -- were you promoted
17  after that?
18       A     Well, tenure usually happens with
19  promotion from assistant to associate professor, so
20  I was -- I was both promoted and tenured --
21       Q     Uh-huh.
22       A     -- in 2016.
23             Are you asking if I was promoted from
24  associate to full professor?
25       Q     Yes.
0021
 1       A     And that did happen, yes, in 2021.
 2       Q     Okay.  And that brings us up to the
 3  present; correct?
 4       A     In terms of my rank --
 5       Q     Yes.
 6       A     -- and professorship, yes.
 7       Q     And I'm not interested in what you earn
 8  or when you got pay raises or anything like that.
 9             But that's -- in terms of your formal
10  titles and your institutional affiliations --
11       A     Uh-huh.
12       Q     -- that is pretty -- pretty much
13  encapsulates your career?
14       A     Yeah.
15       Q     Do you have any positions that are held
16  across -- held at other institutions?
17       A     No.
18       Q     What --
19       A     Sorry.  I am an affiliate faculty at the
20  graduate center of the City University of New York.
21       Q     And just for the record, the City
22  University of New York is also referred to as
23  CUNY --
24       A     Uh-huh.
25       Q     -- and has many different colleges;
0022
 1  correct?
 2       A     Yes.  CUNY is the way it's generally
 3  pronounced.
 4       Q     And Hunter College is one of those?
 5       A     Correct.
 6       Q     Is that generally associated with
 7  graduate teaching?
 8       A     At the graduate center?  Yes, that's
 9  associated with graduate teaching.
10       Q     And when you say, "at the graduate
11  center," is that part of Hunter College or that is
12  the Hunter College?
13       A     It is not part of Hunter College.  It is
14  part of the City University of New York.
15       Q     Okay.
16       A     So it is -- the City University of New
17  York is a consortium, I think they might call it, of
18  roughly 24 different institutions.
19       Q     Okay.
20       A     And Hunter is one of them.  There are
21  about six four-year colleges, maybe more.  There are
22  two-year colleges, there's a nursing school, school
23  of social work.
24             And the graduate center is generally
25  viewed as the doctoral granting institution within
0023
 1  the City University of New York.  They do grants and
 2  terminal master's degrees, I think, as well.
 3       Q     Okay.  Do you belong to any academic
 4  societies, professional organizations?
 5       A     I do.  Society -- Society of Music Theory
 6  and American Musicological Society.
 7       Q     Any others?
 8       A     I was a member of the New Directions
 9  Cello Association for many years.  I think that
10  membership has lapsed.
11             I was a member of -- I might still be a
12  member of the Society for American Music.  And I am
13  a member of the Music Theory Society of New York
14  State.
15       Q     Okay.  That's an independent organization
16  or is it part of the Society for Music Theory, which
17  I believe you mentioned before; did I get that
18  right?
19       A     That is cor- -- yes, you got that right.
20             No, it is not a part of the Society of --
21  for Music Theory.  It's what we generally call a
22  regional society.
23       Q     Okay.  I -- I believe it was for the
24  Society -- is it "for" or "of" Music Theory?
25       A     I think it's "for Music Theory."
0024
 1       Q     So -- and if I say SMT, you'll know I'm
 2  referring to the Society for Music Theory?
 3       A     Correct.
 4       Q     So I believe it was in 2019 that you gave
 5  a plenary talk at the Society for Music Theory;
 6  correct?
 7       A     Correct.
 8       Q     And the title of that plenary talk was
 9  "Music Theory and the White Racial Frame."
10             Did I get that right?
11       A     No.
12       Q     Can you --
13       A     It was --
14       Q     Can you --
15       A     It was --
16       Q     Okay.  Can --
17       A     It was "Music Theory's White Racial
18  Frame."
19       Q     Thank you.  Can you, if you remember,
20  tell me the exact date of that talk?
21       A     I can't tell you the exact date.  I can
22  only say that it was in November of 2019.
23       Q     Was it in the beginning of the month, the
24  end of the month?
25       A     Well, SMT conferences are generally in
0025
 1  the first or second week of November, so before
 2  November 15.  I mean, the date is -- we can find it
 3  out pretty easily I think.
 4       Q     Sure.  And I also understand the limits
 5  of memory.  That -- that -- that's fine.  It's not
 6  about that.  I'm trying to place it in time.
 7       A     Uh-huh.
 8       Q     And to the best of your knowledge, how
 9  was your talk received at the Society for Music
10  Theory in 2019?
11       A     It was received very well.
12       Q     How were you selected to give the plenary
13  talk?
14       A     There was a program committee and they
15  wanted to have a session, I think already entitled
16  "Reframing Music Theory."
17       Q     Uh-huh.
18       A     The two people on the program committee I
19  remember speaking with at some point were Betsy
20  Marvin and Danny Jenkins.
21             And I think that Joe Straus, my colleague
22  at the CUNY Graduate Center, had suggested my name
23  to them at some point to be part of this
24  multi-person plenary session.
25                  MR. ALLEN:  I don't --
0026
 1                  COURT REPORTER:  I can help you.
 2                  MR. ALLEN:  Can we go off the
 3             record?
 4                  I'm sorry, there's a technical
 5             issue.
 6                  THE VIDEOGRAPHER:  We are going off
 7             the record.  The time is 10:29.
 8                 (Whereupon, there was a recess taken
 9                 from 10:29 a.m. to 10:31 a.m.)
10                  THE VIDEOGRAPHER:  We are going back
11             on the record.  The time is 10:31.
12  BY MR. ALLEN:
13       Q     I apologize for the interruption for
14  technical difficulties.
15             I think you were in the middle of
16  answering a question about how you had been selected
17  to give the plenary talk in November of 2019 to the
18  Society for Music Theory?
19       A     Right.
20       Q     Can you continue with your answer,
21  please?
22       A     Yeah.  So Joe Straus had suggested me to
23  the program committee and as I mentioned, Betsy
24  Marvin and -- Elizabeth Marvin and Daniel Jenkins
25  were the two names I remember from the program
0027
 1  committee.
 2       Q     Uh-huh.
 3       A     And there were four people who gave talks
 4  that day and I was one of them.  And Betsy Marvin
 5  who is Elizabeth Marvin moderated that plenary
 6  session.
 7       Q     And all of the people you just mentioned
 8  are members of the SMT; right?
 9       A     I can't say that they are members now,
10  but they certainly were at that moment.  You needed
11  to be a member in order to --
12       Q     Uh-huh.
13       A     -- present at the conf- -- at the
14  conference.
15       Q     What did you submit to this committee or
16  panel for them to evaluate when selecting speakers?
17       A     So I had been doing work that resulted in
18  that plenary talk and ultimately in a very long
19  article.  The article is titled a little bit
20  different and I wanted the difference between the
21  talk and the article so that there could be a
22  distinction between the two.
23       Q     Uh-huh.
24       A     You had mentioned "Music Theory and the
25  White Racial Frame."
0028
 1             That in -- in fact is the -- the title of
 2  the long article --
 3       Q     Uh-huh.
 4       A     -- that I had published -- it looks like
 5  you have a copy of it there on the -- on the table.
 6  And -- and so "Music Theory's White Racial Frame"
 7  was the distilled version of that very long paper.
 8             I had been doing that work going back to,
 9  I would say, 2017, 2018.
10       Q     Uh-huh.
11       A     And I had shown it to some colleagues at
12  CUNY and certainly Joe Straus was one of them.
13       Q     Uh-huh.
14       A     And he thought that this work was
15  important, interesting, so that's why he presented
16  it or suggested to the program committee that I be
17  considered for this -- for this slot.
18       Q     And if you know, approximately how many
19  members does the SMT have?
20       A     1200 is the number that sticks in my head
21  from back then.
22       Q     Uh-huh.
23       A     So plus or minus at this point.  Maybe a
24  hundred or two plus or minus 1200.
25       Q     Is it international in scope?
0029
 1       A     The short answer is probably no in the
 2  sense that there are international societies.
 3             So there's an International Musicological
 4  Society --
 5       Q     Uh-huh.
 6       A     -- which is clearly international in
 7  scope.  But the Society for Music Theory certainly
 8  has members who are not located in the United States
 9  or who are not U.S. citizens, so in that sense it is
10  international.
11       Q     Okay.  And approximately how long was the
12  talk?
13       A     My talk was about -- I -- I think about
14  22 minutes.
15       Q     Okay.
16       A     My portion of the plenary session was
17  22 minutes.
18       Q     And all of these talks, you mentioned I
19  think four in total, they were given at the same
20  time?
21       A     Correct.  Well, sequentially.
22       Q     By that I mean on the same day in the
23  same session?
24       A     Correct.
25       Q     Okay.  And after you had given the talk,
0030
 1  and by your account it was well received, was it
 2  available online?
 3       A     Yes.
 4       Q     And is it still available online?
 5       A     As far as I know, no.
 6       Q     Why has it been removed from its -- where
 7  it was online before?
 8       A     At some point, I removed it myself
 9  because I was getting hate mail based on people
10  having viewed the talk.
11             And at some point I contacted I think it
12  was Patricia Hall because the entire session was
13  online and available open, maybe on a YouTube
14  channel --
15       Q     Uh-huh.
16       A     -- via the SMT website.
17             I contacted Patricia Hall or -- yes, I
18  think it was Patricia Hall as -- and she was the
19  then-president of the Society for Music Theory and I
20  said, Could you please remove my 22 minutes of the
21  talk because people are watching it and sending me
22  hate mail that got quite aggressive, the hate mail.
23       Q     Uh-huh.
24       A     And -- and she did.
25             Well, the Society for Music Theory did.
0031
 1  Not immediately, but -- but in -- in a few days I
 2  think that's when the talk was taken down.
 3       Q     When was this, again?
 4       A     Oh.
 5       Q     Within general terms, if you know?
 6       A     I would say -- well, it was in 2020.
 7  That's the --
 8       Q     That was the time the talk was up online;
 9  right?
10       A     Yes.  It was online after -- after
11  November 2019, you know, maybe -- I -- I don't think
12  it was immediately online --
13       Q     Uh-huh.
14       A     -- until I had asked her to take it off
15  from the main Society of Music Theory.
16             I should say here that I had clipped my
17  22 minutes and made it available on my own
18  professional website.
19       Q     Uh-huh.
20       A     And that was easy for me to take down.
21  Since I had put it up, I could take it down.
22       Q     Uh-huh.
23       A     But the entire session was still
24  available and because of the hate that I was
25  getting, I sent that e-mail to Patricia Hall -- and
0032
 1  it's going to be a ballpark -- in the spring or
 2  summer, let's say, of 2020.
 3       Q     Okay.  And who is Patricia Hall?
 4       A     She was -- was the president of the
 5  Society for Music Theory at that time.
 6       Q     Is she a professor as well?
 7       A     She's a professor of music theory, yes.
 8       Q     Where?
 9       A     University of Michigan, I believe.
10       Q     Okay.  And you don't have any indication
11  that Timothy Jackson sent you hate mail as -- in
12  response to this, do you?
13       A     I do not.
14       Q     Or that he organized any of this hate
15  mail?
16       A     That -- that I organized it?
17       Q     No, my client, Timothy Jackson.
18       A     Yeah.
19       Q     You don't have any indication that he was
20  organizing some kind of hate mail?
21       A     I do not, no.
22       Q     Okay.  And I think you already answered
23  this, but then a longer article based on this talk
24  was eventually published; right?
25       A     Correct.
0033
 1       Q     And that article was titled "Music Theory
 2  and the White Racial Frame."
 3             Correct?
 4       A     Correct.
 5       Q     And when did that come out?
 6       A     I think that came out some time in June
 7  of 2020.
 8       Q     And that was published by the Society for
 9  Music Theory?
10       A     Yes.
11       Q     What's the name of their journal?
12       A     Well, they have about five official
13  publications --
14       Q     Okay.  Well, what's the -- what's the
15  name of the journal in which your article --
16       A     Music Theory Online.
17       Q     Okay.  Was it already agreed that the
18  plenary talks would be published as papers in this
19  Music Theory Online journal?
20       A     Well, my plenary talk was not published
21  in Music Theory Online.  That paper -- that paper,
22  as I've said, is -- oh, gosh -- five, six, seven
23  times longer than my plenary --
24       Q     Uh-huh.
25       A     -- address.
0034
 1             So that's not the same -- the paper --
 2  the article that I see printed out over there, that
 3  was a separate thing from the plenary.
 4             The actual plenary talks were in fact
 5  published in Music Theory Spectrum, which is another
 6  publication of the Society for Music Theory.
 7       Q     Was your -- was your talk in print form
 8  published in the Spectrum journal?
 9       A     Correct.  Yes, it was.
10       Q     So before we go onto the longer
11  article --
12       A     Uh-huh.
13       Q     -- what was the process for publishing in
14  Spectrum?
15       A     I think the editor at that time was
16  Marianne Wheeldon --
17       Q     Uh-huh.
18       A     -- who was a professor of music theory at
19  the University of Texas-Austin.  And she -- somebody
20  had gotten in touch with her to publish these four
21  plenary talks --
22       Q     Uh-huh.
23       A     -- as a package.  It generally has
24  happened -- I've been told; I've not really seen --
25  I -- I -- I've never been privy to the
0035
 1  conversations -- it's generally happened that
 2  plenary talks at the Society for Music Theory are
 3  published --
 4       Q     Uh-huh.
 5       A     -- in one of those two journals.  Those
 6  are the main academic journals.
 7             But how it actually came to pass, I think
 8  that was more Betsy Marvin and probably Joe Straus
 9  who were working with Marianne Wheeldon to actually
10  see those plenary talks published in Music Theory
11  Spectrum.
12       Q     And I -- just to clarify for the record:
13  Is Spectrum a journal that actually appears in
14  print, like in a hard copy, old fashioned journal
15  print?
16       A     I think it no longer does.
17       Q     Uh-huh.
18       A     It might still -- they might still be
19  burning off print copies.
20             Back then, I think they -- they still
21  were.
22       Q     Okay.
23       A     But I think it's more or less all online
24  at this point.
25       Q     And was that plenary talk when it was
0036
 1  published in Spectrum, was that sent out for peer
 2  review before that publication?
 3       A     I -- I don't know.
 4       Q     Wouldn't you know as the author that your
 5  article was being sent out for -- for peer review?
 6       A     I -- one would think, yes, but I wasn't
 7  that involved.  I essentially submitted what I had
 8  read at the plenary address --
 9       Q     Uh-huh.
10       A     -- probably -- probably to Marianne
11  Wheeldon.  What she did as editor, I do not know.
12       Q     Do you remember responding to reviewers?
13       A     I do not, no.
14       Q     And just for the record, can you describe
15  what peer review means to an academic in music
16  theory?
17       A     Yes.  Peer review generally happens --
18  it's often called singly-blind or double-blind.
19       Q     Uh-huh.
20       A     I don't call it that because to use the
21  word "blind" like that is ableist language, which I
22  don't support.
23             I call it single or doubly-anonymous
24  review, as they do in Russia, for example.
25             And a singly-anonymous review is one in
0037
 1  which the reviewers know the identity of the author
 2  of the article.
 3             And as you I'm sure know, the
 4  doubly-anonymous review is one in which all
 5  identities are withheld.
 6       Q     Identities meaning the personal identity
 7  of the --
 8       A     The personal identity of the reviewers --
 9       Q     Uh-huh.
10       A     -- and the author of the article.
11       Q     And so to the best of your recollection,
12  there was no double-blind peer review of the
13  Spectrum publication?
14       A     I didn't say that I -- I didn't -- that
15  there was no review.  I said that I don't know.
16       Q     You don't recall ever getting a
17  reviewer's comments?
18       A     That's correct.
19       Q     You don't recall ever responding to the
20  reviewer's comments?
21       A     Yeah, correct.  Of course.
22       Q     You don't recall ever discussing with the
23  editor peer reviews?
24       A     That is correct, yes.
25       Q     And certainly, if there was such
0038
 1  correspondence, that would be in your e-mail
 2  somewhere?
 3       A     Correct.
 4       Q     Or other papers?
 5       A     Uh-huh.
 6       Q     Did you do a diligent search of your
 7  records for those papers?
 8       A     Yes.
 9       Q     Did you turn any up?
10       A     Excuse me.  Can you repeat that question,
11  please?
12       Q     Did you conduct a diligent search of your
13  records for peer review documents of the Spectrum
14  publication?
15       A     I am now looking at the documents
16  requested at the end of the subpoena and I really
17  looked at this request number one, two, and three
18  and I don't recall seeing anything about peer review
19  here.
20             So I don't think that I specifically
21  looked for peer review in putting together the --
22  that PDF that I talked about.
23       Q     You would agree that a document that
24  discussed peer review of your paper that was
25  presented at the 219 -- 2019, excuse me, plenary
0039
 1  address to the Society for Music Theory would be
 2  information concerning your plenary address;
 3  correct?
 4       A     Yes.
 5       Q     So that would be responsive to the first
 6  request there, which asks for each record
 7  constituting a communication that implements,
 8  mentions, discusses, or contains any information
 9  concerning your plenary address at the 2019 Society
10  for Music Theory's annual meeting; correct?
11       A     Yes.
12       Q     Okay.
13                  MR. PAINTER:  I'm going to ask for
14             clarification as to what you mean by
15             "record."
16                  Are these records in his possession
17             or records in the possession of Hunter
18             College, which have not been produced?
19                  MR. ALLEN:  We can discuss that off
20             the record.
21  BY MR. ALLEN:
22       Q     But I just want to make a record here for
23  the purposes of our deposition that if such a
24  document was in your possession, that it would be
25  responsive to the subpoena; do you agree?
0040
 1       A     May I ask -- may I confer with my counsel
 2  on that?
 3       Q     You confer with your counsel -- well,
 4  let's -- for the purposes --
 5                  MR. ALLEN:  Do you want to just
 6             confer here or you want to go off the
 7             record so he can confer with you?
 8                  MR. PAINTER:  Well, I mean, it's a
 9             legal question as to what's responsive.
10                  MR. ALLEN:  Yeah.
11                  MR. PAINTER:  I -- deponents usually
12             consult their counsel as to what is
13             responsive and what is not.
14                  MR. ALLEN:  Uh-huh.
15                  MR. PAINTER:  And there are a lot of
16             e-mails that are in the possession --
17                  MR. ALLEN:  Sure.
18                  MR. PAINTER:  -- of Hunter
19             College --
20                  MR. ALLEN:  I understand.
21                  MR. PAINTER:  -- that have not been
22             produced.  And I don't believe he's gone
23             through those in preparation for this
24             deposition.
25                  So if you are asking about those, I
0041
 1             think that just needs to be very clear on
 2             the record that you are asking about
 3             those and then he'd have an opportunity
 4             to review those.
 5  BY MR. ALLEN:
 6       Q     And my purpose here is to try to identify
 7  whether or not any such documents exist?
 8       A     Uh-huh.
 9       Q     If we need to follow up, that's fine with
10  me.  I'm not here to try to suggest you did anything
11  wrong.
12             In fact, this often happens in
13  depositions that you identify documents that someone
14  wants, the other person didn't know they should have
15  got, something like that.  So it's really not about
16  trying to impugn your reputation.
17             I just want to identify whether any such
18  review of the Spectrum publication happened.
19             So if there are such documents they
20  certainly exist in one of two places, as far as I
21  can tell from what you've discussed so far:  They
22  exist either in your own personal records or in the
23  records that are properly in -- in the control of
24  Hunter College; is that correct?
25       A     In control of Hunter College, yes.
0042
 1       Q     Okay.
 2       A     Yes.
 3       Q     But as you sit here today, you don't
 4  remember seeing any such documents?
 5       A     Correct.
 6       Q     Do you remember there being any
 7  complaints that publications of these plenary
 8  sessions in Spectrum were not peer reviewed?
 9       A     No.
10       Q     Do you have any reason to believe that
11  the Society for Music Theory would not keep such
12  documents themselves if they were generated in the
13  process of peer review?
14       A     Can you repeat that question?
15       Q     Do you have any reason to believe that
16  the Society for Music Theory would not have these
17  peer review documents related to your article if
18  they existed?
19       A     I don't have any reason to believe that,
20  that they would not have them.
21       Q     And I guess conversely, would you expect
22  the Society for Music Theory to maintain those
23  records of past peer reviews?
24       A     Sure.  Yeah.
25       Q     Okay.
0043
 1                  MR. PAINTER:  I'd ask you to
 2             clarify, are we asking about the article
 3             or the talk, the plenary session talk?
 4                  MR. ALLEN:  I am talking about the
 5             article that was published in Spectrum --
 6  BY MR. ALLEN:
 7       Q     -- which you said was based on the print
 8  that was presented in oral form at the plenary
 9  address.
10       A     I would say more than based on.  I would
11  say it was virtually a verbatim --
12       Q     Okay.
13       A     -- replication of what I spoke.
14       Q     So I want to move on a little bit.
15             Now, you've testified that there was a
16  second paper which grew out of the research and
17  presentation of the plenary talk which was published
18  in Music Theory Online; correct?
19       A     Uh-huh.
20       Q     Can you describe how that paper came to
21  be published in Music Theory Online?
22       A     Yeah.  So I mentioned that I began that
23  work probably 2017, 2018.
24       Q     Uh-huh.
25       A     And strangely, it began as a response to
0044
 1  five articles that were going to appear in Music
 2  Theory Online on Kendrick Lamar's album, To Pimp a
 3  Butterfly.
 4             And there were a lot of things swirling
 5  in my head about music theory and how we have dealt
 6  with race in the past.  And I remember writing a
 7  very long -- so I was contacted by Noriko Manabe.
 8  She's currently a music theory professor at Indiana
 9  University.  She was one of the authors.
10             And they said, Would you please write an
11  introduction to these five papers?
12             And I agreed.  But the introduction that
13  I originally wrote was very long, 12-, 14,000 words,
14  and it wasn't so much a traditional introduction to
15  five papers on Kendrick Lamar.
16             But I -- I wrote that paper, that
17  introduction, and ultimately I pulled it -- I wrote
18  something completely different, which is available
19  online now, 4,000 words, Hey, this is a great thing.
20             But that original response was the paper
21  that ultimately became "Music Theory and the White
22  Racial Frame."  So that I wrote Winter/Spring 2018.
23       Q     Let -- let me ask you a few questions
24  about that original -- what did you call it -- a
25  response to Kendrick Lamar?
0045
 1       A     It was an introduction --
 2       Q     Introduction?
 3       A     -- to five papers on Kendrick Lamar's
 4  third studio album.
 5       Q     I see.
 6       A     It's called To Pimp a Butterfly.
 7       Q     And you said that was published or it was
 8  not published?
 9       A     It was.
10             Oh, the original introduction, very
11  long --
12       Q     Uh-huh.
13       A     -- 12-, 14,000 words, I completely pulled
14  that.
15       Q     Uh-huh.
16       A     That was not part of it.  I rewrote
17  something completely different --
18       Q     Uh-huh.
19       A     -- which is published as the
20  introduction --
21       Q     Okay.
22       A     -- to -- to that, I think it's called, "A
23  Symposium on Kendrick Lamar's To Pimp a Butterfly."
24       Q     Where -- where was that published?
25       A     That was also in Music Theory Online.
0046
 1       Q     And was that article --
 2       A     If you --
 3       Q     -- an introduction --
 4                 (Whereupon, the court reporter
 5                 requests clarification.)
 6  BY MR. ALLEN:
 7       Q     So we'll refer to it as "an
 8  introduction"?
 9       A     Uh-huh.
10       Q     In its final form, approximately how many
11  words was it?
12       A     4,000 words.
13       Q     And 4,000 words in ordinary journal pages
14  would be about how much, in your experience?
15       A     I have no idea.
16       Q     Was that introduction peer reviewed?
17       A     Yes.
18       Q     Who were the reviewers?
19       A     I do not know.  It was -- it was
20  anonymous.
21       Q     It stands out in your mind that it was
22  reviewed and you received the reviewers' comments?
23       A     Uh-huh.
24       Q     And you remember responding to the
25  reviewers' comments?
0047
 1       A     Uh-huh.
 2       Q     Okay.  Now, that is separate from an
 3  article that you eventually published in Music
 4  Theory Online called "Music Theory and the White
 5  Racial Frame."
 6             Correct?
 7       A     Correct.
 8       Q     So just focusing on that paper, explain
 9  the publication process in that case.
10       A     Uh-huh.  So I submitted that to Music
11  Theory Online.  And it took a fair bit of time for
12  reviews to come back.
13             They came back.  They were positive.  But
14  the editor at the time, that was Jeff Perry.  Jeff
15  Perry is a music theory professor at Louisiana State
16  University.
17       Q     Uh-huh.
18       A     Does it help for me to say that?  Should
19  I be saying that, by the way?  I -- you know,
20  because you asked --
21       Q     I appreciate it because you have to
22  understand, this is -- this is likely to be or could
23  be shown to a jury --
24       A     Yeah, fair.
25       Q     -- and they won't know these people from
0048
 1  Adam, nor do I, quite frankly.
 2       A     Sure.
 3       Q     So I think it helps to put it in
 4  context --
 5       A     I will --
 6       Q     -- without belaboring the point.
 7             If they become relevant, Professor Ewell,
 8  it will be my job to ask about that.
 9       A     Uh-huh.
10       Q     But I do appreciate it when you give
11  these descriptions in brief of who they are and
12  where they are located.
13             So with that said --
14       A     Uh-huh.
15       Q     -- please continue describing the process
16  of publishing "Music Theory and the White Racial
17  Frame" in Music Theory Online.
18       A     Yeah, so the editor at the time was Jeff
19  Perry.
20       Q     Uh-huh.
21       A     And there was some very interesting
22  back-and-forth.  And this is something that I
23  actually outline in a monograph that I wrote --
24       Q     Uh-huh.
25       A     -- that came out last year.  And that
0049
 1  monograph is entitled "On Music Theory and Making
 2  Music More Welcoming for Everyone."  And I'm happy
 3  to -- to -- to repeat some of those things here.
 4             So the reviews came back positive as --
 5  accept with revisions.
 6       Q     Uh-huh.
 7       A     Jeff Perry and the Music Theory Online
 8  team e-mailed me, We are going to change this to a
 9  different decision.
10             And the decision was revise and resubmit.
11  And that --
12       Q     And just for the record -- again, this
13  may be presented to people who have no idea how --
14       A     Uh-huh.
15       Q     -- the publication in academic journal
16  works, but a revise-and-resubmit recommendation
17  means, if I may summarize, We like it but we want
18  these revisions with these revisions; we'd like to
19  see it again and then it will be published.
20             Is that fair?
21       A     Yup, that's fair.
22       Q     Okay.
23       A     Yeah.
24       Q     And so fast forward to the next phase.
25       A     Uh-huh.
0050
 1       Q     What happened next?
 2       A     Well, since you clarified what revised
 3  and resubmit means, we often just say "R&R."
 4       Q     Which doesn't mean "rest and relaxation."
 5       A     It does not mean --
 6       Q     It means more work for the professor?
 7       A     Yeah, yeah.
 8             Oh, let me clarify what "accept with
 9  revisions" --
10       Q     Uh-huh.
11       A     -- at least meant at the time.
12       Q     Uh-huh.
13       A     It meant this article will be published.
14             Music Theory Online said very clearly at
15  the time in -- in their language, If you get to
16  "accept with revisions," you can consider your
17  article published and you can list it on your CV.
18       Q     Uh-huh.
19       A     So that's what that meant vis-à-vis the
20  "revise and resubmit" --
21       Q     Uh-huh.
22       A     -- which is what you just outlined.
23       Q     Uh-huh.
24       A     They changed the "accept with revisions"
25  to "revise and resubmit."
0051
 1             And I took issue with that.  And I began
 2  to -- I drafted a memorandum to the chair of the
 3  publications committee at the time.  That was Brian
 4  Alegant, who is now retired I think --
 5       Q     Uh-huh.
 6       A     -- from Oberlin as a music theory
 7  professor.
 8             And I had a phone call with Brian Alegant
 9  regarding this case.  And ultimately, I emerged
10  victorious in this behind-the-scenes battle, let me
11  say --
12       Q     -- uh-huh.
13       A     -- as to whether they were going to honor
14  their own rules and not change the goal posts.
15       Q     Right.
16       A     Right?  Or change the goal posts and get
17  away with it.
18       Q     Uh-huh.
19       A     So it was one of those two things.
20             Frankly, I thought that they would get
21  away with it.  But I was a little surprised, happily
22  surprised, when in fact they decided to honor their
23  own rules and publish this article.
24       Q     And so the Society for Music Theory
25  honoring their own rules, that's important to you;
0052
 1  correct?
 2       A     Yes.
 3       Q     And in this case, you thought they did
 4  the right thing?
 5       A     Yes.
 6             I should also add that any society
 7  honoring their own rules is important to me.
 8       Q     And I understand from your statement that
 9  you consider yourself a -- basically, an honest
10  academic; right?
11       A     I don't understand that question.
12       Q     Sure.  You want societies to honor their
13  own rules; correct?
14       A     Yes.
15       Q     Professional societies that address
16  academic work; correct?
17       A     Yes.
18       Q     And you, yourself, consider yourself an
19  honorable academic in that sense?
20       A     Yes.
21       Q     Okay.  And this is a perfect example of a
22  question being unclear and you ask for clarification
23  and I appreciate that.
24       A     I appreciate the clarification.
25       Q     So I want to turn to -- so this article
0053
 1  was peer reviewed.  It came back, Accepted but we
 2  want a few changes.
 3             Then the editorial board, it sounds like,
 4  changed that to revise and resubmit; correct so far?
 5       A     No, it was not the editorial board.  It
 6  was the editors at Music Theory Online.
 7  Specifically, Jeff Perry and probably David
 8  Neumeyer --
 9                  MR. ALLEN:  Uh-huh.
10       A     -- retired music theory professor,
11  University of Texas-Austin, I think.
12  BY MR. ALLEN:
13       Q     Uh-huh.  And then you pushed back on
14  that; correct?
15       A     Yes.  Then I pushed back the editorial --
16  not the editorial board, but the publications
17  committee was the next level.
18       Q     Uh-huh.
19       A     And this is a publications committee, by
20  the way, of the Society for Music Theory.
21       Q     Okay.  And you eventually prevailed?
22       A     Uh-huh.
23       Q     They followed their own rules; right?
24       A     Uh-huh.
25       Q     And the article was eventually published
0054
 1  after, what I take to be, some few revisions?
 2       A     Correct.
 3       Q     So I want to turn now and ask a few
 4  questions about the substance of your article.
 5             I understand you may not have a verbatim
 6  memory of the article and it's been some time,
 7  but --
 8       A     Uh-huh.
 9       Q     -- I really want you to explain in -- in
10  general terms that can be understand -- -stood by
11  the Jury, if you could, what is the white racial
12  frame in music theory?
13       A     Well, the right -- white racial frame is
14  from sociologist Joe Feagin --
15       Q     Uh-huh.
16       A     -- who's written books called "White
17  Racial Framing," who's talked about this concept
18  from a sociological point of view for decades now.
19             And within -- within music theory, the
20  white racial frame is essentially an acknowledgment
21  that American music theory historically is deeply,
22  deeply rooted in our own country's historic white
23  supremacy.
24       Q     So the white racial frame is about the
25  historical background to music theory in the United
0055
 1  States?
 2       A     Yes, to a very large extent.  Yes.
 3       Q     Okay.  And how does the white racial
 4  frame justify the great array of privileges and
 5  assets held by white Americans?
 6             I believe that's a quote from your
 7  article?
 8       A     Can you repeat that again, please?
 9       Q     Sure.  How does the white racial frame in
10  music theory "justify the great array of privileges
11  and assets held by white Americans"?
12       A     In music theory -- in American music
13  theory, it's manifested in many, many different ways
14  from the curricula that we put forth in the music
15  theory classroom to the music theorists who have
16  been elevated to study and whose works we read to
17  the performances and the -- the pieces and the
18  repertoire that we tell our students are the most
19  important in -- in their music educations.
20       Q     And how does that justify the great array
21  of privileges and assets held by white Americans?
22       A     It justifies it in the sense that
23  virtually all of the repertoire, until the last,
24  say, five to ten years, all of the repertoire, all
25  of the theorists, all of the ideas put forth were in
0056
 1  fact created by white men in the history of music
 2  theory going back, well, centuries, frankly.
 3             And when you look at it from a racialized
 4  perspective, as I have, you realize that whiteness
 5  plus maleness, the concepts of whiteness plus
 6  maleness, in fact give people who happen to be
 7  deemed white by society -- because, of course,
 8  whiteness as a concept is something that's been
 9  very, very flexible over -- over the centuries,
10  since it was created by humans roughly 500 years
11  ago, right -- it gives people who -- who might
12  identify as such a great, great advantage because
13  people by default believe that a person who presents
14  as white and male are -- are more inclined to be
15  like the great music -- so-called great music
16  theorists of the past; right?
17             And it in fact tells our students that
18  this is the model for what music theory should be
19  because quite literally 100 percent of the music
20  theorists we put forth in study were in fact white
21  men, rather than realizing that historically, going
22  back hundreds of years, without question, the
23  country that became known as the United States has
24  valued whiteness over all other forms of races over
25  non-whiteness, let's say.
0057
 1             And it's only now that we are beginning
 2  to unpack some of the racialized histories of music
 3  education and music theory specifically, which is
 4  what I do, in order to unpack some of the -- as
 5  you -- as you quote from me, the array of
 6  privileges --
 7       Q     Uh-huh.
 8       A     -- that whiteness and male -- plus
 9  maleness -- I'm speaking about whiteness because I
10  think that's where your -- your question is more
11  focused on that.
12             Of course, I very clearly link this to
13  maleness and patriarchy in all of my work because if
14  you actually study race, as I have over many years
15  now, you realize that patriarchy is tied right at
16  the hip to the history of white supremacy.
17       Q     Okay.  And is this a fair summary -- and
18  I'm not trying to put words in your mouths [sic] --
19  but the fact that only white men have written,
20  published the corpus of music theory up to the
21  present in the United States, that that has propped
22  up white supremacy in the United States?
23       A     No, that's not true.  I -- I wouldn't say
24  only white men because, in fact, people have
25  theorized music all over the planet since there's
0058
 1  been music; right?
 2             We've only put forth a select few in our
 3  country because historically, the -- the country
 4  that became known as the United States is rooted in
 5  two twin ideologies more than any other and those
 6  ideologies are white supremacy and patriarchy.
 7       Q     So these -- these doctrines of white
 8  supremacy and patriarchy were responsible for
 9  selecting the people in the United States who were
10  considered music theorists?
11       A     Well, when you say "responsible for
12  selecting," it almost sounds as if there's, like, a
13  fair egalitarian selection process that's going on
14  behind the scenes.
15             And that's never been the case; right?
16  It's -- it has quite literally been white men
17  writing the rules.
18             It's not like in 1787 when the
19  Constitutional convention was convened in
20  Philadelphia that there were 55 people from all over
21  the country and half of them were women and over
22  here we have the Scots and over here we have the
23  Cherokee and the Hopi.
24             No.  No.  No.  We all know, they were 55
25  white propertied men, about half of whom who owned
0059
 1  slaves, and they wrote a rulebook, the Constitution,
 2  which benefited themselves.
 3             And to be honest, do you blame them?  I
 4  wouldn't do -- I -- I would have done the same
 5  thing.  You had money, you had education, you had
 6  travel.
 7             I don't blame somebody 240 years ago for
 8  writing a rulebook that benefited themselves.
 9  That's human nature.
10             This is -- there's not -- there's nothing
11  about blame here.
12       Q     And -- and let me ask a question about
13  that specifically.
14             And so in your view, the Constitution
15  itself was written to support white male privilege?
16       A     You keep coming back to the word
17  "privilege" and that's not exactly the word I would
18  use.
19             White male supremacy, I would use --
20       Q     Okay.  Well, let's use your words.
21             It was written to the support white male
22  supremacy?
23       A     Not explicitly to support white male
24  supremacy, but it was written with white male
25  supremacy in mind; right.  I mean, I, quite
0060
 1  literally, would have been three-fifths of a person
 2  because of the Three-Fifths Compromise; right?
 3             And --
 4       Q     And by that, you are referring to the
 5  fact that you identify as black?
 6       A     Correct.
 7       Q     And people at that time certainly would
 8  have identified you as black; right?
 9       A     Correct.  Correct.
10       Q     And keep in mind, this will be on video,
11  so we are not making things up and they'll see you;
12  right?
13       A     That's great.
14       Q     Okay.  So then that's what you are
15  referring to?
16       A     Absolutely, yeah.
17       Q     Uh-huh.
18       A     And so I probably would ask a question:
19  How could that not be seen as supporting whiteness
20  if -- if the Fugitive Slave Clause, which was part
21  of the original Constitution, and the Three-Fifths
22  Compromise, which was part of the original
23  Constitution, quite clearly were anti-black in
24  nature?
25             And the first naturalization law from
0061
 1  1790 very clearly said, If you want to be
 2  naturalized citizen, you have to be white.
 3       Q     Uh-huh.
 4       A     It also said you had to be -- you had to
 5  be a free white person, is the way they wrote the
 6  law.
 7             Well, that's a white supremacist
 8  structure; right.  That's what --
 9             So if -- if you're -- if you're asking me
10  whether the Constitution was written with white
11  supremacy and patriarchy, by the way, in mind, my
12  answer would be unequivocably yes, it was.
13       Q     And that includes the First Amendment to
14  the United States Constitution?
15       A     The First Amendment of the Constitution
16  to free speech, I think, is one of the high water
17  marks of our Constitution --
18       Q     Are you excepting that from the supports
19  of white supremacy in your view?
20       A     I --
21       Q     Let me rephrase that.
22       A     Yeah, yeah, please.
23       Q     Are you excepting the First Amendment
24  from the argument you just made about the sup- -- I
25  guess you didn't say "support" --
0062
 1                  MR. PAINTER:  That
 2             mischaracterizes --
 3                  MR. ALLEN:  Yeah, no, I'm trying to
 4             get it right.
 5                  MR. PAINTER:  He didn't say the
 6             entire Constitution, every provision.
 7                  MR. ALLEN:  Well, let me ask him a
 8             question.
 9  BY MR. ALLEN:
10       Q     I'm asking if you except the First
11  Amendment which guarantees free speech from the
12  argument that you made about the 55, I believe,
13  white men, half of them slave owners, who were
14  advancing white supremacy at the time of the
15  founding?
16       A     Yeah.  This is a very interesting
17  conversation.
18             I -- I fully acknowledge some of the
19  beautiful parts of the United States Constitution.
20  My personal favorite is the 14th Amendment written
21  by John Bingham, a Radical Republican --
22       Q     Which is, of course, after the Civil War;
23  right?
24       A     Correct.  One of the reconstruction
25  amendments.
0063
 1             He was a Congressman from Ohio, a Radical
 2  Republican, and a white man, I'd like to point out
 3  for the record here.
 4             And the First Amendment I think is a
 5  great amendment.  I think the Second Amendment is an
 6  awful amendment, personally, but now we are just
 7  getting into speculation and --
 8       Q     And we don't need to --
 9       A     -- I --
10                 (Whereupon, the court reporter
11                 requests clarification.)
12  BY MR. ALLEN:
13       Q     Well, I -- I want to -- I don't
14  necessarily want to cut this short, but we have
15  other things to talk about and I -- I just wanted to
16  ask you the question about the first amendment since
17  you had made those statements about the
18  Constitution.
19             I wanted to return to music theory, if
20  you don't mind?
21       A     Please.
22       Q     What role did music theory have in -- in
23  forming the founders' drafting of the Constitution
24  or the 1790 law that you mention?
25       A     What role did music theory have --
0064
 1       Q     Yes?
 2       A     -- in forming the Constitution of the
 3  United States?
 4       Q     Yes.  We've been talking about the
 5  white --
 6       A     Uh-huh.
 7       Q     -- racial frame of music theory; correct?
 8       A     Yeah.
 9       Q     And you --
10                  MR. PAINTER:  Correction.  A lot of
11             this has not been about the white racial
12             frame of music theory.  We have been
13             talking about the Constitution for at
14             least five minutes.
15  BY MR. ALLEN:
16       Q     And then we transitioned to talking about
17  the Constitution when I asked you how did this, for
18  lack of a better word, ideology of the white racial
19  frame justify the great array of privileges and
20  assets held by white Americans; right?
21       A     Uh-huh.
22       Q     Do you remember that question?
23       A     Uh-huh.
24       Q     And then we transitioned based on your
25  answer to a discussion of the Constitution and
0065
 1  the -- the law in 1790?
 2       A     Uh-huh.
 3       Q     Which I think we all agree is atrocious.
 4       A     Uh-huh.
 5       Q     And my question then, returning to white
 6  racial framing of music theory, I wanted to know how
 7  those are connected.  How is the white racial frame
 8  in music theory connected to the 55 founders, half
 9  of them slave owners, who drafted the Constitution?
10       A     Well, that's actually pretty easy to
11  answer.  To race scholars like me, it's pretty easy
12  to connect dots to see how the white supremacist
13  foundings of the country are manifested in music.
14             Let's take the New York Philharmonic, for
15  example.  I think that's our oldest symphony
16  orchestra.  It was founded in 1842.
17             The first non-white person to play and be
18  accepted into the orchestra was 120 years later.
19  His name -- he's a black violinist.  His name is
20  Sanford Allen.  He's still alive.  He lives in New
21  York City.
22             One hundred twenty years it took for them
23  to accept into the orchestra a person who was not
24  white.
25             Since I know a lot about patriarchy and
0066
 1  the his- -- the patriarchal underpinnings of the
 2  United States as well, I'll simply point out that
 3  the first woman to be accepted to play in the New
 4  York Philharmonic, not as just a per service player
 5  but someone who is part of the group taken in as a
 6  tenured member of the orchestra, that was Steffy
 7  Goldner.  She was a harpist and that was in 1922.
 8  So it took 80 years for them to accept a woman into
 9  the orchestra.
10             So if the question is:  How did the white
11  supremacist underpinnings of a Constitution or just
12  the founding of the count- -- of the country affect
13  society writ large and, in my case, music and music
14  theory, well, just look at -- look at the New York
15  Philharmonic.
16             Look at the Metropolitan Opera founded in
17  1883.  First opera written by a black composer
18  performed in 2021, four -- three years ago.  That
19  was Fire Shut up in my Bones by Terence Blanchard, a
20  very fine composer and trumpeter.
21       Q     So let me interject for a second.
22             I don't think anyone would seriously
23  question that there has been a racial discrimination
24  in the United States, at least -- not least of which
25  manifested in institutions like philharmonic
0067
 1  orchestras and so forth, just as you have described.
 2       A     Uh-huh.
 3       Q     My question was different.
 4             My question was:  How did music theory
 5  inform this white racial frame that you described?
 6  How did that inform the -- what you've described as
 7  the racial supremacy embedded in the Constitution
 8  and other laws dating back to the 18th century?
 9       A     Uh-huh.  Well, I -- I mentioned
10  performing institutions like New York Philharmonic
11  or the Metropolitan Opera.
12             All of the people involved in those, they
13  went to school and they learned music theory; right.
14  It was very much a feedback loop in the world of
15  classical music.  It still is to a very large
16  extent, although we are making some very interesting
17  steps forward, I think, in a -- in -- in positive
18  directions.
19             If in fact a student goes to an
20  institution to learn music and they are told
21  explicitly that the -- that white people's brains
22  are bigger because racial phrenologists proved it,
23  if they are told that black people couldn't possibly
24  write good music because they are black, well,
25  that's part of music education.
0068
 1             Music theory is a crucial part of music
 2  education.  It has been, of course.
 3       Q     So maybe -- let me ask my question
 4  another way.
 5             Is -- is what you are saying or what you
 6  were trying to advance in your article in Music
 7  Theory Online that the -- the embedded racial
 8  supremacy in our founding documents went on to
 9  influence music theory for generations to come?
10       A     It influenced absolutely every aspect of
11  American life up to and including music theory.
12       Q     Okay.
13       A     And it still influences these things
14  today.
15       Q     Is it your -- also your argument that
16  this white racial frame in Western music theory has
17  the purpose of upholding white supremacy?
18       A     Well, this is the first time you've used
19  the word "Western" and I -- I -- that's not a word I
20  really use anymore.  This is something I unpack also
21  in my monograph from last year.
22             The whole concept of the West, it -- it
23  never happened before 1860 roughly.  It -- the --
24  the West was created out of thin air.
25             Why?  Because Europe could no longer
0069
 1  ignore the money and the power that slave labor had
 2  generated in the United States of America.  In other
 3  words, Europe could no longer ignore the United
 4  States of America.
 5             So we needed a term to link the United
 6  States to Europe.  The Europeans needed a term,
 7  frankly, and that term was "the West."
 8             And that linked up the -- what we now
 9  call North America, which is usually considered to
10  be Canada and the United States, despite the fact
11  that North America is a continent that goes down to
12  the Panama-Colombia border; right.
13             So I personally don't use "the West" in
14  talking about some of the structures of -- of -- of
15  music education.
16             And now, I'm sorry, Mr. Allen, you'll
17  have to go back and repeat the -- the original
18  question because --
19       Q     Sure.
20       A     -- I lost it.
21       Q     So let's leave any conceptions of the
22  West since that seems to be something you don't
23  like.
24             So this white --
25                  MR. PAINTER:  Correction.  I -- I
0070
 1             don't think he said he didn't like it.
 2                  THE WITNESS:  You are right.  I did
 3             not say --
 4  BY MR. ALLEN:
 5       Q     You don't like this term, "Western"?  You
 6  said it's --
 7       A     I didn't --
 8       Q     -- something like it was invented out of
 9  think air or something?
10       A     Yeah, I didn't say I didn't like it.  I
11  said I don't use it.
12       Q     Okay.  Well, I'm sorry if I interpreted
13  something that you refuse to use as something you
14  don't like, so I stand corrected.
15             Let me ask the question a different way:
16  This white racial frame in Wes- -- let me see --
17  white racial frame in what is contemporary United
18  States music theory has the purpose of upholding
19  white supremacy; is that your argument?
20       A     No.  No.
21       Q     Do you argue that the contemporary white
22  racial frame in classical music theory as it's
23  taught in the United States discriminates against
24  black Americans?
25       A     Can you clarify what you mean by
0071
 1  "discriminates against black Americans"?
 2       Q     Let's start with some of the examples
 3  you've used.
 4             It denies black Americans access to, say,
 5  philharmonic orchestras?
 6       A     You mean as members playing in the
 7  orchestra?
 8       Q     Sure, let's start with that.
 9       A     It has, yes.
10       Q     As students of music?
11       A     I don't understand the question.
12       Q     As students in graduate programs in music
13  theory, such as you teach?
14       A     Could you give me a full question?  I --
15  I --
16       Q     Sure.  I'm asking how -- or if music
17  theory, as you've described it having this white
18  racial frame, discriminates against black Americans,
19  and you asked me to be more specific.
20       A     I asked you to -- to -- to explain what
21  you mean by "discriminating black Americans," yes.
22       Q     And I said it keeps black Americans out
23  of positions as performing artists in philharmonic
24  orchestras, and you agreed?
25       A     Yeah.
0072
 1       Q     And I asked if it keeps black Americans
 2  out of music theory education programs, such as the
 3  one you teach.
 4             So let's then move onto that question.
 5       A     Are you --
 6       Q     Is that an argument you would make, that
 7  this white racial frame discriminates against black
 8  Americans by keeping them out of music theory
 9  programs?
10       A     I don't understand what you mean by
11  "keeping out of."
12             You mean like not being admitted to
13  study.
14       Q     Sure.  It excludes them?
15       A     It excludes them as undergraduates or as
16  masters or doctoral students?
17       Q     Let's take them in turn.  As
18  undergraduates?
19             Do you know of any undergraduates who are
20  black Americans who wanted to study in music theory
21  who were excluded from a program in the United
22  States because of the white racial frame of music
23  theory?
24       A     Well, so I 00 I often refer to history in
25  these terms and now I would refer to Paul Brent, who
0073
 1  is the first black student to study at Peabody.
 2  That was 1949.  He was most certainly excluded
 3  because of his blackness but he did ultimately get
 4  in before that.
 5             It was quite routine to exclude black
 6  people from conservatories and from music education
 7  because -- quite explicitly because of their
 8  blackness.
 9             Carl Seashore was a music theorist at the
10  University of Iowa who died years ago.  He was
11  essentially a musical eugenicist and he is -- his
12  goal was to prove the inferiority of black musicians
13  in the country.
14             The reason I'm laying out the history
15  here is because it sounds like you want me to answer
16  something about today and I have a hard time
17  answering such a question without laying out a
18  little bit of --
19       Q     Sure.
20       A     -- the history as to exactly how and why
21  blacks were in fact discriminated against in music
22  educational settings in horrific ways, I might add,
23  going back to the 19th century.
24             But Paul Brent was 1949.  That's not that
25  old.  My folks were alive in 1949.  That's not that
0074
 1  far in -- into the past.
 2             And it's not that much of a leap to think
 3  that such discrimination could have happened in the
 4  late 20th century.
 5             Now, if you are asking me if I know
 6  specifically, I'd have to think.  I could probably
 7  come up with some instances where it actually has
 8  been part of the "do you get admitted or do you not
 9  get admitted" --
10       Q     Uh-huh.
11       A     -- "into this program as an
12  undergraduate, as a masters student, as a doctoral
13  student?"
14       Q     So this is still happening today is -- is
15  what you believe?
16       A     If the question is racial discrimination
17  is still happening --
18       Q     No, that --
19       A     -- in music --
20       Q     -- wasn't my question.
21             Are students being excluded from
22  undergraduate programs because they are black today?
23       A     In undergraduate music programs?
24             I think that it -- not explicitly, but in
25  fact implicitly yes, probably yes.
0075
 1                  MR. PAINTER:  Take a break fairly
 2             soon?
 3                  MR. ALLEN:  You want a break?
 4                  MR. PAINTER:  Yeah, pretty soon.
 5                  THE VIDEOGRAPHER:  Okay.
 6                  MR. PAINTER:  Brief break.
 7                  MR. ALLEN:  Let's go off the record
 8             and take a break now.  It's fine.  It's
 9             11:18.
10                  THE VIDEOGRAPHER:  We are going off
11             the record.
12                  MR. PAINTER:  Just go to the
13             bathroom.
14                  MR. ALLEN:  Yeah, sure.
15                  THE VIDEOGRAPHER:  The time is
16             11:18.
17                 (Whereupon, there was a recess taken
18                 from 11:18 a.m. to 11:31 a.m.)
19                  THE VIDEOGRAPHER:  We are going back
20             on the record.  The time is 11:31.
21  BY MR. ALLEN:
22       Q     Professor Ewell, I believe before our
23  short break you were talking about -- we were
24  answering questions about specific incidents of
25  discrimination in the field of music theory and the
0076
 1  admission to undergraduate.  You had also mentioned
 2  graduate schools.
 3             So I want to continue with that line of
 4  questioning, if you don't mind.
 5             Do you know of any black students who
 6  have been denied admission to the University of
 7  North Texas graduate program in music theory?
 8       A     Nope.
 9       Q     Do you know of any specific incident in
10  which my client, Timothy Jackson, has discriminated
11  against a black American?
12       A     No.
13       Q     Any black person, whether American or
14  not?
15       A     No.
16       Q     While we are at it, do you know of any
17  racist actions committed by my client?
18       A     No.
19             I would ask, I guess, just to define
20  "racist" because I -- could you define what you mean
21  by "racist" as --
22       Q     Well, this is something he's accused of,
23  so I don't know how graduate students or faculty at
24  the University of North Texas define that.  Maybe
25  you could illuminate.
0077
 1             Do you -- you know the fac- -- you know
 2  some of the faculty at the University of North Texas
 3  in their school of music; right?
 4       A     Yeah, a couple.  The one that I knew best
 5  was Ellen Bakulina.
 6       Q     Uh-huh.
 7       A     She's also a Russianist --
 8       Q     Uh-huh.
 9       A     -- as am I -- who's no longer there.
10       Q     Uh-huh.  Do you know what she means by
11  "racism"?
12       A     And she's now associate professor of
13  music theory at McGill University.
14             Sorry, could you repeat that?
15       Q     Do you know what Ellen Bakulina means by
16  racist?
17       A     No.
18       Q     Okay.  So back to the -- to questions
19  about the white racial frame in music theory, as
20  you've described it in your article, how has the
21  white racial frame in music theory impeded your
22  career personally?
23       A     I -- before I answer that I just want to
24  once again highlight -- because you've said "white
25  racial frame" quite a bit, that's not my -- I didn't
0078
 1  come up with this -- this phraseology.
 2             It's Joe Feagin who just retired from
 3  Texas A&M University as a sociologist.  He's
 4  85 years old.  He's an American icon, as a matter of
 5  fact.
 6             And so I really have to just kind of say,
 7  I didn't come up with white racial framing.  That's
 8  Joe Feagin.  He's written many books on this topic.
 9             And, you know, so part of me wants to
10  say, We should be reading his work because he's the
11  expert on white racial framing.
12             And I'm sorry, could you please repeat
13  the question about the white racial frame of music
14  theory?
15       Q     Well, by mentioning Joe Feagin you are
16  not suggesting that your articles weren't developing
17  the idea of the white racial frame as it applied to
18  music theory taught in the United States; right?
19       A     No, they were very much --
20       Q     Okay.
21       A     -- using his ideas, yes.
22       Q     Okay.  And I understand -- I think you
23  would -- we all would agree that scholars build on
24  the scholarship of others; correct?
25       A     Yes.
0079
 1       Q     I'm most interested in the ideas that
 2  you've developed --
 3       A     Uh-huh.
 4       Q     -- defining, elaborating, identifying the
 5  white racial frame in music theory as it's taught in
 6  the United States; is that fair?
 7       A     Fair, yes.
 8       Q     And you've written on that in your
 9  article that grew out of your plenary talk in
10  2019 --
11       A     Uh-huh.
12       Q     -- and it was eventually -- and please
13  say "yes" or "no."
14             Yes?
15       A     Yes.
16       Q     And that was eventually published in your
17  article in Music Theory Online; correct?
18       A     Yeah.  Yes.
19       Q     And in fact it has "white racial frame"
20  in the title; correct?
21       A     Yes.
22       Q     Okay.  So that's what I'm talking about;
23  is -- can we agree on that?
24       A     Yes.
25       Q     All right.  I'm asking:  How did the
0080
 1  white racial frame in American music theory as
 2  you've described it impede your career as a black
 3  American man?
 4       A     Oh, that's a vast, vast question.
 5             The first part I would say, it's hard for
 6  me to even know because much of anti-black -- much
 7  of anti-blackness happens behind the scenes.  So
 8  if -- if something didn't happen for me, there's a
 9  chance that anti-blackness might be the reason why
10  that happened.
11             So that's unclear to me how that might
12  have happened.
13             In terms of how has it affected me, well,
14  I've already mentioned the fact that the article
15  under question was -- they changed decisions about
16  the revision -- about the reviews from "accept with
17  revisions" to "revise and resubmit."
18             I believe that anti-blackness was, in
19  part, part of the reason that happened; right?
20             I believe that -- I had a very difficult
21  tenure battle at Hunter College from 2014 to 2016 in
22  which the chair of the music department at the time
23  tried very, very vigorously to get me fired,
24  something I just briefly mention in the introduction
25  to my -- my monograph last year.  That, I believe,
0081
 1  was most certainly driven by anti-blackness.
 2             So -- I even mentioned at some point in
 3  that book that it -- you know, this two-year tenure
 4  battle that I had to wage because this particular
 5  one person was essentially claiming I was
 6  incompetent at what I did, and I do believe driven
 7  by anti-blackness, nobody should have to do -- go
 8  through that; right.  That's not something that a
 9  white person should go through, that a -- or any
10  non-white person should go through.
11             But to bring it back to anti-blackness,
12  this is historically part of the fabric of the
13  United States; part that we will continue to work
14  through together, I hope, and -- and confront and
15  make things better for our children and
16  grandchildren.
17       Q     So you've given two examples, this SMT --
18       A     Decision on the --
19       Q     -- decision on your -- not the Spectrum
20  article, but the -- the one we've been discussing in
21  Music Theory Online; right?
22       A     Yes.
23       Q     In which you eventually got them, in your
24  words, to follow their own rules?
25       A     Correct.
0082
 1       Q     Did anyone ever say they wanted you to be
 2  converted to a "revise and resubmit" status because
 3  you were black?
 4       A     No.
 5       Q     So that was just your surmise that it had
 6  to do with anti-blackness?
 7       A     Correct.
 8       Q     In the tenure dispute, which was a second
 9  example you gave from your personal life, you
10  mentioned, I believe, the chair --
11       A     The chair of the department.
12       Q     -- campaigned to get you denied tenure?
13       A     Correct.
14       Q     Did he ever say that was because you were
15  black?
16       A     No.
17       Q     He said that was because you were
18  incompetent?
19       A     Yes.
20       Q     And you disagreed?
21       A     Well, yeah, I disagree that I was
22  incompetent.
23       Q     Correct.  And it seems the school
24  eventually agreed and sided with you?
25       A     Correct.
0083
 1       Q     And you were granted tenure?
 2       A     Correct.
 3       Q     Do you know of white professors at Hunter
 4  College who have gone through similar struggles with
 5  tenure.?
 6       A     Not similar anti-black struggles, no.
 7       Q     Let me rephrase that then because you
 8  yourself said you never heard anyone expressly say
 9  they were trying to deny you tenure because you were
10  black; correct?
11       A     Yes.  And it's worth pointing out that
12  that's almost always the case with anti-blackness in
13  the United States.  It's a very rare person who will
14  say, I'm doing this because you are black.
15             That's just not the way anti-blackness
16  works.  I'm sure you understand that.
17       Q     But nevertheless, you had no evidence
18  that there was specific racist ideas leading to
19  people arguing you were incompetent when you were up
20  for tenure?
21       A     You used the word "racist." I'm using the
22  word "anti-black."
23             Yes, the answer if -- if you're going --
24       Q     Okay.
25       A     Could you revise --
0084
 1       Q     Let's use your word, "anti-black."
 2       A     Correct.  Okay.
 3       Q     Is it fair to say "anti-black racism"?
 4       A     I prefer "anti-blackness."
 5       Q     Okay.  Let's use your term.
 6             There was no evidence that you know of
 7  that anti-blackness led to individuals at Hunter
 8  College to oppose your tenure?
 9       A     Correct.
10       Q     So, again, that's your surmise?
11       A     That you -- my surmise -- my -- yeah.
12  Surmise, my -- my -- my belief.
13       Q     Okay.
14       A     Yeah, my surmise.
15       Q     And at the SMT plenary session, you were
16  received quite well?
17       A     Yes.
18       Q     That wasn't anti-black; right?
19       A     That was not anti-black.  Correct.
20       Q     Incidentally, because you are a black
21  man, do you enjoy the benefits and privileges of
22  patriarchy?
23       A     Yes.
24       Q     But you --
25       A     I'm sorry, because I'm a man, not black
0085
 1  man.  You said because I'm a black man.
 2             Because I'm a man, cisgender, I enjoy the
 3  privileges of patriarchy.
 4       Q     Okay.
 5       A     So -- so get rid of the word "black"
 6  there, please.
 7       Q     I believe you've argued in your article
 8  in Music Theory Online that a reformed American
 9  music theory should be anti-racist; right?
10       A     I'm not sure that's exactly how I put it,
11  but you are not entirely incorrect.
12       Q     So what would an anti-music --
13  anti-racist music theory look like?
14       A     I wrote in my book, we cannot understand
15  what anti-racism will look like in music theory in
16  the future unless we understand what racist -- what
17  racism in music theory looked like in the past,
18  which is a slightly longer way of saying, I don't
19  really know what anti-racist music theory would look
20  like in the future.  We are all still trying to
21  figure that out, in my opinion.
22       Q     Okay.  You are writing a textbook on
23  music theory now; correct?
24       A     Yes.
25       Q     Is that what -- something you state in
0086
 1  your textbook, that you don't know what music theory
 2  will look like?
 3       A     No.
 4       Q     So you have some idea of what it should
 5  look like; correct?
 6       A     Well, yes, of course, based on the
 7  textbook that I'm co-authoring, yes.
 8       Q     So what would an anti-racist American
 9  music theory look like now, today in 2024?
10       A     Well, again, I don't know what the
11  anti-racist music theory would look like.
12             I can tell you what we are doing in our
13  book which would certainly more align with
14  anti-racism than music theory textbooks in the past.
15             Should I say what the book is about?
16       Q     Tell me what your book argues is more in
17  line with anti-racist music theory in the present?
18       A     Well, it's a music theory textbook, so we
19  are not putting forth arguments about anti-racism
20  and anti-blackness.  That's just not something that
21  usually happens in a -- in a music theory textbook.
22       Q     Okay.  That's fine.
23             Now, I want to transition to talk about
24  someone I know you studied in depth, Heinrich
25  Schenker.
0087
 1             You can assume that this case has
 2  Heinrich Schenker in its background in many regards,
 3  so I'm not going to ask you to describe who Heinrich
 4  Schenker was and is.
 5             But I can assume for the record that you
 6  are very familiar with the work of Heinrich
 7  Schenker?
 8       A     Uh-huh.  Yes.
 9       Q     And he was an Austrian, Jewish music
10  theorist born in the middle of the 19th century and
11  lived into the early third of the 20th century;
12  correct?
13       A     1868 to 1935.
14       Q     Okay.  And he ended his life in Vienna,
15  in the center of the state of Austria?
16       A     He ended his life makes it sounds like he
17  committed suicide.
18       Q     I'm not -- I mean his life came to an end
19  in Austria; correct?
20       A     Correct.
21       Q     In Vienna?
22       A     As far -- as far as I know.  I -- I'm --
23  I'm not a -- really a Schenker historian like that.
24       Q     Uh-huh.
25       A     But I do believe he died in Vienna, yeah.
0088
 1       Q     Now, you argue in your article and
 2  elsewhere -- article in Music Theory Online that
 3  Heinrich Schenker has been very important in
 4  advancing this white racial frame in music theory;
 5  is that fair?
 6       A     The -- yeah.  I'll go ahead and say yes.
 7  Yes.
 8       Q     Okay.  And how did he contribute to the
 9  wait racial frame in music theory?
10       A     Well, of course since he died in 1935,
11  and had virtually nothing, you know, directly to do
12  with American music theory, you have to draw a lot
13  of historical parallels, right.
14             And so you first begin with his emigre
15  students who came over here, Hans Weisse --
16       Q     Uh-huh.
17       A     -- would be the first name I would
18  mention.  But then Felix Salzer and Oswald Jonas and
19  Ernst Oster.
20       Q     Can I interrupt to ask you a question
21  about that group of scholars --
22       A     Uh-huh.
23       Q     -- you just mentioned?
24       A     Uh-huh.
25       Q     All of them were music theorists?
0089
 1       A     Yeah -- yes.
 2       Q     And were they all Jewish immigrants to
 3  the United States?
 4       A     That I don't know.
 5       Q     Okay.
 6       A     The reason I hesitated about music
 7  theorists is because the term "music theorists" was
 8  not so well defined back then.  They probably would
 9  have said that they were a -- their specialty was
10  musikwissenschaft, which is --
11       Q     And that means "the science of music,"
12  correct?
13       A     Exactly.  Yeah.  "Musicology," was what
14  we say.
15       Q     You just used a German word --
16       A     For musicology --
17       Q     One of these impossible German words that
18  is about longer than the alphabet?
19       A     Yes.  Yes.
20       Q     Okay.
21       A     And you can keep making them longer by
22  adding stuff at the end or the beginning.  That's
23  correct.
24       Q     Thank you.
25             So please continue.
0090
 1             I -- I had asked you how Heinrich
 2  Schenker contributed to the white racial frame and
 3  you were discussing his students who came to the
 4  United States?
 5       A     Yeah.  But the question, when you say how
 6  Heinrich Schenker contributed, it's a very active
 7  voice you are using.
 8             And in fact, you can't use that active
 9  voice at all because Heinrich Schenker himself
10  didn't contribute to our white racial frame in the
11  sense that we in America created a system of music
12  theory which has, as Joe Feagin would say, a very
13  pro-White subframe of the white facial frame.
14             And -- and the ideas of tonal music were
15  very often understood through some of the musical
16  theories that Heinrich Schenker put forth.
17             But to say, How did he contribute to the
18  white racial frame, that's -- you are using the
19  active voice there that I just disagree with.
20  It's --
21       Q     Okay.
22       A     He didn't.
23       Q     So -- and thank you.
24             You mentioned tonal music?
25       A     Uh-huh.
0091
 1       Q     Can you please describe for the Jury and
 2  for the Court here on this record what is -- in
 3  terms of absolute -- you know, someone with no
 4  knowledge of music theory would be able to
 5  understand, such as myself, for instance.
 6             What -- what does that mean?  What is
 7  tonal music?
 8       A     Well, that's a -- it's a great question
 9  and it's a very -- you know, do you -- do you want
10  the short, middle, or long answer?
11             I'm going to try to go for the --
12       Q     Well, please, a brief -- you know, just
13  for the record --
14       A     Yeah.  I'll try to go --
15       Q     -- again, for the --
16       A     I'll go --
17       Q     -- record, but again --
18       A     -- kind of middle -- middle length.
19       Q     It makes it hard on him.  That's why we
20  can't speak over each other.
21       A     Was it --
22       Q     I apologize.  And it was my fault.
23             But let me rephrase my question.
24       A     Uh-huh.
25       Q     So briefly describe for the record what
0092
 1  "tonal music" is in -- in ways that a -- an utter
 2  layperson can understand?
 3       A     So if you had asked me that ten, 15 years
 4  ago, I would have said something like, tonal music
 5  is music written in a key like C major or D minor
 6  that moves -- that has what we in music theory call
 7  triads and harmonies and chords that move in a
 8  certain logical progression within a key of -- in
 9  music; right.
10             Typical composers of such tonal music
11  would be, for example, names that the Jury probably
12  knows:  Johann Sebastian Bach, Ludwig van Beethoven,
13  Wolfgang Amadeus Mozart, for example.
14             And tonal music represented a roughly
15  200 -- let's call it, 250-year period from the late
16  17th century, call it, 1650, with composers like
17  with Arcangelo Corelli up through, let's say, 1900,
18  roughly.
19             Today I would give a different answer
20  because that very much is part of music theory's
21  hegemony in promoting what essentially is a white --
22  white racially framed way of conceiving of tonal
23  music or tonality; right.
24       Q     And by "hegemony," you mean a system that
25  maintains its own power?
0093
 1       A     It's own power, yes.
 2       Q     Uh-huh.
 3       A     Yeah.  Of course we haven't mentioned --
 4  I haven't mentioned the term "colonial" or
 5  colonialization."  That's often a term used in
 6  academic circles with --
 7       Q     Well, let's leave that aside and get back
 8  to the definition of "tonal music" as you would
 9  define it today?
10       A     Yes, thank you.
11             So as far as I know, all peoples on our
12  planet have musics; right?  And if music has
13  frequencies -- frequencies are -- are in music what
14  we call pitches; right?
15       Q     You mean the actual frequency of the
16  sound?
17       A     Of the sound.
18       Q     Like the sound waves --
19       A     Exactly.
20       Q     Okay.  Sorry, go ahead.
21       A     Any -- any -- any sound has a frequency.
22                 (Whereupon, the witness taps the
23                 table.)
24       A     That --
25
0094
 1  BY MR. ALLEN:
 2       Q     I just want --
 3       A     -- has a frequency.
 4       Q     -- to be clear that you are not talking
 5  about the frequency with which music is heard or
 6  something like -- you know, the -- the oftenness, if
 7  that --
 8       A     Correct.
 9       Q     So let's -- now that we have cleared up
10  that, I apologize --
11       A     Uh-huh.
12       Q     -- and I'll stop interrupting you.  Go
13  ahead.
14       A     Yeah, I'm talking about acoustics and
15  physics and --
16       Q     Uh-huh.
17       A     -- in physics, frequency is called "Nu,"
18  you know, the Greek letter --
19       Q     Uh-huh.
20       A     -- that goes like that?
21       Q     Yeah.
22       A     That's --
23       Q     Please --
24       A     So if somebody says, "What's new?"
25             You say, "Frequency."
0095
 1             That's a joke.
 2       Q     That's a music theory joke?
 3       A     That's -- that's a music theory joke.
 4       Q     Fair.
 5       A     And when musics have freq- -- sounding
 6  frequencies, which vib- -- any vibrating body will
 7  produce, right? --
 8       Q     Uh-huh.
 9       A     -- it has potential tones and tonality;
10  right?
11             So in other parts of the world, the
12  most -- two of the most developed such systems I
13  could cite here would be ragas in the Indian
14  subcontinent or different maqam systems in Turkey
15  and the Middle East and Jordan in Arabic maqams --
16  Turkish and Arabic maqams, for example.
17       Q     Uh-huh.
18       A     Many, many, many centuries of tonalities
19  which are just not the same as the Bach,
20  Beethoven --
21       Q     Uh-huh.
22       A     -- functional tonality.
23             So in other words, rather than saying
24  that -- you'll note that I put the word "functional"
25  in front of "tonality," which is something that we
0096
 1  music theorists often talk about.
 2             Functional means that the chords have
 3  certain characteristics and -- and progressions that
 4  they follow.  So it's a word that we just use in
 5  music theory.
 6             Rather than thinking that functional
 7  tonality is in fact the foundation for music theory
 8  in the United States of America, I now say that it
 9  is a foundation.
10       Q     Uh-huh.
11       A     And this simple grammatical shift from
12  "the foundation" to "a foundation" --
13       Q     Uh-huh.
14       A     -- which it is --
15       Q     Uh-huh.
16       A     -- actually has caused a lot of panic
17  behind the scenes because a lot of people don't want
18  to acknowledge that there are many others, that they
19  represent very interesting rich music theory
20  traditions, potentially, and that we -- a country of
21  30 -- 330 million people coming from all over the
22  planet and some of whom were here before people
23  started arriving, right, indigenous folks -- have
24  ways of thinking about music that are all valid and
25  very interesting.
0097
 1       Q     So everyone can have their own private
 2  music theory; is that what you mean?
 3       A     If you got rid of the word "private," I
 4  would agree with that statement.
 5       Q     Back to Heinrich Schenker, he is one of
 6  the primary music theorists of tonal music, as you
 7  described it, originally as -- let's say, this
 8  period from the enlightenment to the late 19th
 9  century that you described?
10             Enlightenment being the 18th century,
11  sorry?
12       A     And you said, One of the most
13  important -- is that what you -- music theorists?
14       Q     Yes.
15       A     Yes, I think that Hugo Riemann would be
16  slightly more important.
17       Q     Okay.
18       A     Heinrich Schenker was very much an
19  American phenomenon.  For most of the rest of the
20  world --
21       Q     Uh-huh.
22       A     -- dealing with the Bach through Brahms,
23  is what we sometimes call canonic composers or
24  common practice composers.  There's several ways --
25       Q     Uh-huh.
0098
 1       A     -- of talking about that -- those
 2  composers.  Hugo Riemann and his theories actually
 3  were more important than Heinrich Schenker.
 4             American music theorists might not want
 5  to acknowledge that, but that's a true statement.
 6       Q     And you examined his -- I think it's
 7  called Schenker Documents Online.
 8             Can you describe briefly what that is?
 9       A     As far as I know -- I don't even know
10  where it's housed -- but it is -- he was a very
11  prolific writer --
12       Q     Uh-huh.
13       A     -- Heinrich Schenker was.  And aside from
14  his main works, Harmonielehre, and Kontrapunkt, and
15  Freie Satz, Free Composition -- those are his three
16  main works; Counterpoint is in two volumes --
17       Q     Uh-huh.
18       A     -- there are diaries and letters and
19  correspondence and -- and essays and introductions
20  and forwards and many other things.
21             As far as I understand, Schenker
22  Documents Online is a repository -- an online
23  repository of many of those documents transcribed
24  from German and then translated by several people
25  into English.
0099
 1       Q     So a layperson could find this online?
 2       A     I think so, yeah.
 3       Q     And a layperson who didn't even speak
 4  German, which was Schenker's language, could also
 5  read these translations?
 6       A     Correct.
 7       Q     And they are in side by side, you have
 8  the original text and then the translation side by
 9  side?
10       A     Correct.
11       Q     Thank you.
12             And approximately how many pages of
13  Schenker's original writings are online in this -- I
14  think it's called the Schenker Documents Online
15  Archive?
16       A     I have no idea.
17       Q     If I said it was approximately 6,000
18  pages, would that -- do you think that's inaccurate?
19       A     I really couldn't say.
20       Q     Do you have any reason to believe it's
21  not thousands of pages?
22       A     I have no reason to believe that it is
23  not thousands of pages.
24       Q     And I believe in your writings you said
25  you'd identified 57 mentions in the Schenker
0100
 1  Documents Online of the word "race"?
 2       A     I believe so.
 3       Q     And is 57 mentions out of thousands of
 4  pages representative of an intellectual's work over
 5  their lifetime?
 6       A     In terms of talking about human race, I
 7  think it's significant.
 8       Q     Okay.
 9       A     And it -- I would add that I don't think
10  every mention of the word "race" -- Rasse in
11  German -- was necessarily about human race, but the
12  vast majority -- you -- you could say, like, a race
13  between a turtle and a tortoise or something; right?
14  So that's -- it's not always human race, but it
15  virtually always was.
16       Q     Correct.
17             And you mention a -- a -- well, what is
18  that?  It's not a synonym.
19             I mean, race -- running a race and "race"
20  meaning --
21       A     Human race.
22       Q     -- Nineteenth century conceptions of skin
23  color in race, those are the same word in English,
24  but they're not in German, are they?
25       A     Correct.
0101
 1       Q     Wettrennen is the word in German for
 2  "race"; right?
 3       A     I do not know.
 4       Q     How well you know German?
 5       A     I've got a reasonable reading knowledge.
 6       Q     Were you reading the Schenker Documents
 7  Online in the original or were you relying on the
 8  translation?
 9       A     I was relying on the translations, but I
10  did check with the originals as I did that.
11       Q     And were all the mentions of race in
12  Schenker's Schenker Documents Online negative?
13       A     I can't recall.
14       Q     Disparaging of black people?
15       A     I can't recall.
16       Q     But you still maintain that the 57
17  mentions out of something like 6,000 pages, if
18  that's accurate, is nevertheless very significant;
19  correct?
20       A     I did not say "very significant."  I said
21  "significant."
22       Q     It's not cherry picking these 57 mentions
23  out of all those pages?
24       A     I obviously was trying to find instances
25  where Heinrich Schenker had mentioned race.
0102
 1       Q     If you searched some word like "tone" --
 2  what's the German word for "tone"?
 3       A     Tone -- it's "ton," t-o-n -- but --
 4       Q     If you searched the -- the Schenker
 5  Documents Online for the word "tone," just give a
 6  guesstimate of how many times that would appear in
 7  Schenker's work?
 8       A     I really couldn't do that.
 9       Q     Do you think it would be more than 57?
10       A     Probably.
11       Q     A lot more?
12       A     I couldn't say.
13       Q     You do argue that Schenker's music theory
14  was anti-black; correct?
15       A     I argue that there are elements of
16  anti-blackness in his music theories.
17       Q     What's the connection between Schenker's
18  anti-black ideology, if we want to call it that, and
19  his ideas of music theory as it applies to tonal
20  music?
21       A     I don't think he thought that much about
22  black music just for the simple reason that he
23  didn't think that it was worth attention.
24             So the --
25       Q     Let me ask my question again because I
0103
 1  think that's a different -- that's an answer to a
 2  different question.
 3             I'm not implying that you are doing
 4  anything bad here; I just want an answer to a
 5  different question.
 6             What's the connection between his
 7  anti-blackness and his music theory?
 8             Not what's the -- you know, I don't know
 9  if he was hostile to black music or not, but I --
10  you have argued that he was anti-black.
11       A     I --
12       Q     Correct?
13       A     I -- I'll just repeat what I said.  I
14  believe that there are strong elements of
15  anti-blackness within his theories --
16       Q     Uh-huh.
17       A     -- and that he made comments as I
18  cited --
19       Q     Right.
20       A     -- in my work that were unequivocally
21  anti-black.
22       Q     Okay.  And what's the relationship
23  between his anti-blackness as it was expressed in
24  his work and his music theory of tonal music?
25       A     I don't think that there's much
0104
 1  relationship at all in -- with respect to Heinrich
 2  Schenker.
 3       Q     Okay.  So you would agree with Timothy
 4  Jackson in that regard?
 5       A     I do not know.
 6       Q     Have you argued that Heinrich Schenker
 7  had a very hierarchal theory of tones?
 8       A     I've argued that he had a hierarchical
 9  theory of -- of understanding tonality and --
10       Q     Can you please describe that in terms
11  that a layperson could understand, for the record?
12       A     Well, his entire system of music theory
13  was extremely hierarchical; right?  And he found
14  levels of hierarchies in what he would consider to
15  be master works; right?
16       Q     Like the great Bach, Beethoven, and so
17  forth?
18       A     Exactly.
19       Q     Okay.
20       A     There were 12 on his list, 12 composers.
21             And he would find these -- well, he
22  called them Schichte -- these layers of -- of -- of
23  hierarchies, right, and all great music would
24  exhibit these layers and of course they were
25  fundamental structures.  We all know that.
0105
 1             Just for the layperson, the fundamental
 2  structure is a struct- -- the tonal structure of a
 3  so-called great piece of music.
 4       Q     Is that what some piece might refer to if
 5  they say it's written in C minor or whatever it --
 6       A     No, that --
 7       Q     It's not?
 8       A     That's just a key; right.  So C minor is
 9  a key.
10             But if it's a C minor, a piece by
11  Beethoven, well, then, a priori, it's going to be a
12  great masterwork because he was one of the 12
13  composers whom Heinrich Schenker elevated above all
14  others.
15       Q     Uh-huh.
16       A     And it would then exhibit these
17  structural layers, it would exhibit this fundamental
18  structure that -- with a simple harmonic motion from
19  a tonic to a dominant to a tonic with a melodic
20  dissent of scale degrees above that.
21             That's inside music theory baseball, but
22  that is part of his -- well, it's some of the most
23  basic parts of his music theory.
24             And yes, hierarchy was extremely
25  important.
0106
 1       Q     And so is it fair, I guess, from my -- my
 2  very uninformed understanding of music theory, is it
 3  fair to say that in his theory, certain tones were
 4  subordinate to others in the structure of an entire
 5  musical piece?
 6       A     Yes.
 7       Q     And would those vary from composition to
 8  composition, or was it always the case that there
 9  was a superior tone?
10       A     Well, it would always be the case that it
11  would come down to one of three fundamental
12  structures that he conceived.
13       Q     Okay.  And how is that related to
14  anti-blackness?
15       A     Well, you could read my book and you'd
16  probably get some ideas of how it might be related.
17             But you are asking a very specific
18  question about Heinrich Schenker's music theories --
19       Q     And its hierarchy?
20       A     -- and its hierarchies.
21             And the way that I would answer that
22  question is to say, again, Heinrich Schenker died in
23  1935 and he, as far as I know, never traveled to the
24  United States of America.
25             What we have done since then in the
0107
 1  ensuing 85 -- yeah, 90 years is create a system of
 2  music theory that very much has relied on Heinrich
 3  Schenker's beliefs.  His music theory -- music
 4  theoretical beliefs.
 5             And in that 90 years, there have been
 6  strains of, among other things, anti-blackness,
 7  anti-womanness.  And it very much represents what,
 8  again, I'll call it, the pro-white subframe of music
 9  theory's white racial frame.
10       Q     So what's the relationship between the
11  hierarchal nature of his theory of tones and this
12  anti-blackness, anti-womanness that you've just
13  sub -- described?
14       A     That's something that -- that, you know,
15  one would need so long to explain that.  I mean,
16  this is a deposition.
17             And I just have to fall back to the
18  history and -- and simply say that over 90 years, we
19  have created a system of tonal understanding based
20  largely on Heinrich Schenker's theories in the
21  United States of America in which the works of white
22  men -- 12 for him -- but more broadly the concepts
23  of whiteness and maleness are held in higher regard
24  than those composers who may not have identified as
25  both white and male.
0108
 1       Q     So is it true that you have argued -- and
 2  I'm going to quote from your article in Music Theory
 3  Online -- "the notion of hierarchy of a strict
 4  ordering of the tones of composition is so
 5  thoroughly consistent with Schenker, his deeply
 6  conservative outlook on life and culture, that it is
 7  difficult to uncouple his theory entirely from two
 8  of his most consistently expressed ideological
 9  stances:  One, the centrality of the German people
10  in European culture; and two, the steady decline of
11  culture and political order in Europe since the late
12  18th century."
13       A     Those are not my words.  Those are the
14  words of William Drabkin, a very imminent Schenker
15  scholar, so you should check your source there.
16             I quoted --
17       Q     Did you quote him?
18       A     I'm quoting him but --
19       Q     Did you quote him positively?  You agree
20  with that?
21       A     Were you suggesting that I had written
22  that?
23       Q     I think it's in your article; correct?
24       A     Yeah, but -- but I didn't write those
25  words.
0109
 1       Q     Okay.
 2       A     You are aware of that; right?
 3       Q     I -- I don't know if you did or not.
 4             I'm certain that you included them in
 5  your article.
 6             So my question -- and this is a good
 7  chance for you to clarify for the Court -- you
 8  quoted another author's work; right?
 9       A     I did.
10             May I ask --
11       Q     Approvingly?
12       A     -- a question?
13             May I ask a question?
14       Q     No.
15       A     Oh.
16       Q     I'm asking the question.
17       A     Oh, okay.
18       Q     I'm asking if you approve of that
19  statement?
20       A     May I ask a clarification?
21       Q     Sure.
22       A     You just said you don't know whether I
23  wrote those words or not.
24             And I'm telling you that I did not
25  write -- write the words that you just spoke.
0110
 1             Therefore, the -- the clarification is:
 2  Do you actually not understand that those were not
 3  my words that you just --
 4       Q     I think I said --
 5       A     -- read?
 6       Q     And I'm not sure if I did say this -- I
 7  think I said, You argued; okay?
 8             And I'm not disputing that you wrote them
 9  or not.
10       A     Uh-huh.
11       Q     If you say you quoted another author's
12  work, that's perfectly normal in academic
13  scholarship.
14             I'm arguing -- excuse me, I'm not
15  arguing -- I'm asking if you agree with that
16  statement?
17             That's a very clear statement about the
18  relationship with the -- between the hierarchy of
19  tonal theory and ideologies of cultural supremacy of
20  the German people?
21       A     Could you --
22       Q     Wouldn't you agree to that?
23       A     Could you reread the --
24       Q     Sure.
25       A     -- the quote from William Drabkin?
0111
 1       Q     Can you spell his name, just for the
 2  record?
 3       A     D-r-a-b-k-i-n.
 4       Q     Thank you.
 5                  MR. PAINTER:  Can I ask for a
 6             clarification?
 7                  Which document are we referring to?
 8             Is this in -- is this an article written
 9             by --
10                  MR. ALLEN:  We are talking about
11             the --
12                  MR. PAINTER:  -- the school?
13                  MR. ALLEN:  -- Music Theory Online
14             article that the -- the deponent has
15             testified that he published 2021.
16                  THE WITNESS:  2020.
17                  MR. ALLEN:  2020.
18                  MR. PAINTER:  Can we make that an
19             exhibit to the deposition so he can have
20             it in front of him?
21                  Because that will also help.  I
22             assume it would have quotation marks.
23                  MR. ALLEN:  It's also publically
24             available online.
25                  THE WITNESS:  It's a block
0112
 1             quotation.
 2                  MR. ALLEN:  Let me -- let me do that
 3             after our next break.
 4                  MR. PAINTER:  Okay.
 5                  MR. ALLEN:  We will do that --
 6                  MR. PAINTER:  So it's a block
 7             quotation --
 8                  MR. ALLEN:  Correct.
 9                  MR. PAINTER:  It's very helpful if
10             it were part of it --
11                  MR. ALLEN:  Sure.
12                  MR. PAINTER:  -- then we would
13             as- -- dealt with this right away, this
14             block quotation --
15                  MR. ALLEN:  Sure.
16                  MR. PAINTER:  -- from another
17             author.
18  BY MR. ALLEN:
19       Q     I think the record shows that the witness
20  remembers it accurately enough to know which author
21  he quoted and know that it was accurate quote from
22  the author; correct?
23       A     Yes.
24                  MR. PAINTER:  Yes, we've just got to
25             reread the statement if you're going to
0113
 1             ask if he agrees with it --
 2                  MR. ALLEN:  Absolutely.  But I don't
 3             want to now break and go get it.
 4                  MR. PAINTER:  Okay.
 5                  MR. ALLEN:  I want to ask him
 6             this -- this question and then we can
 7             come back to this.
 8  BY MR. ALLEN:
 9       Q     You asked me to reread the quotation.
10             "The notion of hierarchy of a strict
11  ordering of the tones of composition is so
12  thoroughly consistent with -- Schenker -- his deeply
13  conservative outlook on life and culture that it is
14  difficult to uncouple his theory entirely from two
15  of his most consistently expressed ideological
16  stances:  One, the centrality of the German people
17  in European culture; and two, the steady decline of
18  culture and political order in Europe since the late
19  18th century."
20             Now, to the best of your recollection,
21  did I read that correctly?
22       A     Yes.
23       Q     And -- and we'll confirm.  I want to get
24  a clean copy of the article for you.  I apologize
25  for not do -- not doing that in advance.
0114
 1             That's a relatively clear statement of
 2  the relationship between Schenker's theory of
 3  hierarchy and tones and what the author, Dubkin, is
 4  arguing is an ideological theory of the hierarchy of
 5  the German culture or people.
 6       A     Uh-huh.
 7       Q     Correct?
 8       A     Uh-huh.  Yes.
 9       Q     Do you argue that that also expresses
10  anti-blackness?
11       A     I did not argue that in that article, no.
12       Q     Is there no relationship between Heinrich
13  Schenker's hierarchal theory of tones and theories
14  of -- I don't know -- bogus phrenology, bogus
15  theories of the hierarchy of the races?
16       A     I don't know.  I couldn't answer that
17  question.
18       Q     Okay.  You can't answer it yes or no?
19       A     Correct.
20                  MR. ALLEN:  Can we go off the record
21             briefly?
22                  THE VIDEOGRAPHER:  We are going off
23             the record.  The time is 12:10.
24                 (Whereupon, there was a recess taken
25                 from 12:10 p.m. to 12:12 p.m.)
0115
 1                  THE VIDEOGRAPHER:  We are going back
 2             on the record.  The time is 12:12.
 3  BY MR. ALLEN:
 4       Q     I want to make a transition,
 5  Professor Ewell, and talk about the University of
 6  North Texas.
 7             As you know, my client, Timothy Jackson,
 8  is a professor there; correct?
 9       A     Correct.
10       Q     Are you familiar with another professor
11  there named Frank Heidlberger?
12       A     Yes.
13       Q     Explain for the record how you know Frank
14  Heidlberger.
15       A     I cannot recall the first time I ever met
16  Frank Heidlberger.  I remember meeting him in person
17  only once and I think it was in the Vancouver
18  conference of the Society for Music Theory.
19             I think I just ran into him on the
20  street, as one does at these conferences, and I saw
21  his name badge and just --
22       Q     Uh-huh.
23       A     -- introduced myself.
24             The Vancouver conference -- well, we'd
25  have to go to the record for that.  That was
0116
 1  probably 2018ish.
 2             So I think that's the only time I met
 3  Frank Heidlberg -- -berg or -berger?
 4       Q     I believe it's Heidlberger?
 5       A     Heidlberger with an "e-r" at the end.
 6  Okay.
 7             Aside from that, at the -- at the impetus
 8  of, I think it was, Ellen Bakulina, I had a piece
 9  published in Theoria, the journal at the University
10  of North Texas, in a short -- in a small little
11  group of -- of three authors:  Ellen Bakulina, whom
12  we've mentioned, Chris Segall, who's a professor of
13  music theory at the University of Cincinnati, and
14  me.
15             And this grew out of a -- of a session
16  that we had given, I think it was for the Russian
17  music theory interest group.
18       Q     Uh-huh.
19       A     And maybe it was in Vancouver.  It was
20  somewhere --
21       Q     This is the 2018 conference that you
22  mentioned?
23       A     Don't quote me on the 2018.  I'm pretty
24  sure it was Vancouver, whenever that happened.
25       Q     Is it fair to say it's a -- you met at a
0117
 1  conference and it was before COVID?
 2       A     Yes.  Oh, yes.  Yes.
 3       Q     Before the 2020 academic year?
 4       A     Correct on both counts, yes.
 5       Q     I'm going to introduce for the record
 6  Exhibit 2, which I'm handing to the court reporter
 7  who will hand it to you.
 8                  COURT REPORTER:  One moment please.
 9                  MR. ALLEN:  Just for the record, for
10             the people -- sorry --
11                  Sorry.  Shall I let you mark the
12             exhibit?
13                  I've got to tell them what it is.
14                  COURT REPORTER:  One moment please.
15             I can't take down -- once it's silent --
16                  MR. ALLEN:  Some day I'll invent an
17             octopus court reporter.
18                 (Whereupon, Plaintiff's Exhibit 2,
19                 Theoria Volume 26, 2020, was marked
20                 for identification.)
21                  MR. ALLEN:  I'm introducing for the
22             record Exhibit 2.
23                  And for those who have got the
24             exhibit pack online, this is the exhibit
25             which in my notes was 09, Theoria volume
0118
 1             26, 2020.
 2  BY MR. ALLEN:
 3       Q     And, Professor Ewell, is that an accurate
 4  description of what I've just handed you?
 5       A     Yes.
 6       Q     So I've introduced this exhibit because
 7  you were just mentioning publishing in a journal.
 8             Is this the journal which that discussion
 9  referred to?
10       A     Oh, yes, for Theoria, yes.
11       Q     And describe just briefly what is the
12  journal Theoria?
13       A     It's a journal that's housed at the
14  University of North Texas Press, I believe, and
15  Frank Heidlberger is the editor, the -- the -- the
16  lead.  I -- you know, he's essentially -- well, does
17  it say it here?
18       Q     He's listed on the --
19       A     Yeah, editor.
20       Q     -- first page --
21       A     Yeah.
22       Q     -- as the editor; correct?
23       A     Frank Heidlberger, yeah.  Uh-huh.
24       Q     And that's the Frank Heidlberger you were
25  referring to in your testimony?
0119
 1       A     Correct.
 2       Q     And if you go the second page, there's a
 3  table of contents.
 4       A     Uh-huh.
 5       Q     Correct?
 6       A     Yeah.
 7       Q     And you were talking about publishing in
 8  a group of three some articles in Theoria; right?
 9       A     Uh-huh.
10       Q     And in the title page where it says,
11  "Russian Music Theory Panel SMT 2018," is that the
12  series of articles you were referring to?
13       A     Yes.
14       Q     And you are listed here, I guess, the
15  fourth article down in the table of contents, Philip
16  Ewell, "Harmonic Functionalism in Russian Music
17  Theory: A Primer."
18             Did I read that correctly?
19       A     Correct.
20       Q     And your article started on page 61;
21  right?
22       A     Yes.
23       Q     Okay.  I just wanted to establish we were
24  talking about the same thing and it turns out the
25  SMT conference seems to have been in 2018, just as
0120
 1  you remembered.
 2       A     I've got a good memory then.
 3       Q     So with that said, can you describe the
 4  process of publishing these articles with Frank
 5  Heidlberger's journal, Theoria?
 6       A     Yeah.  I can recall -- again, I think
 7  the -- the -- the key -- Ellen may have been the
 8  chair of the Russian music theory interest group at
 9  that time.
10       Q     Uh-huh.
11       A     So she was almost certainly the
12  go-between.  She was of course teaching at the
13  University of North Texas at the time.
14       Q     Uh-huh.
15       A     I think I mentioned that she moved to
16  McGill.
17       Q     Yup.
18       A     Okay.  So she was working with Frank,
19  like the pivot between me and Chris -- Chris
20  Segall -- and -- and -- and putting this together.
21       Q     Uh-huh.
22       A     And as far as I can recall, you know,
23  we -- we worked on our articles, we, you know --
24  turning a presentation into an article --
25       Q     Uh-huh.
0121
 1       A     -- was, you know, something that we all
 2  do.
 3             And we submitted them together.  I think
 4  we each read each other's work and just commented on
 5  it.
 6       Q     Uh-huh.
 7       A     And -- and then ultimately, I don't know
 8  what Frank Heidlberger did with -- with them.  I
 9  pre- -- so yeah, I'll just stop there.
10       Q     And when you say, "We read each other's
11  work," are you referring to Ellen -- please
12  pronounce her last name?  Bakulina?
13       A     Bakulina.
14       Q     Bakulina?
15       A     Yeah.
16       Q     I assume Russian?
17       A     That's Russian.
18       Q     In origin?
19       A     Yes, correct.
20       Q     Thank you.
21             So Ellen Bakulina and Christopher Segall
22  and you read each other's articles?
23       A     Uh-huh.
24       Q     That's what you were referring to?
25       A     Yes.
0122
 1       Q     And did Frank Heidlberger solicit these
 2  articles?
 3       A     I'm not sure.  I'm not sure how --
 4  solicitation, whether Ellen approached him, he
 5  approached Ellen.  I can't even recall whether Frank
 6  Heidlberger was at that session where we
 7  delivered --
 8       Q     I understand.  It was 2018.
 9       A     Yeah.  Yeah.
10       Q     So do you remember these articles being
11  peer reviewed in the processes we've discussed
12  earlier?
13       A     If I could just go briefly back to the --
14  the plenary because we talked about the plenary and
15  the --
16       Q     Correct.
17       A     -- music theory Spectrum and then MTO.
18       Q     Right.
19       A     I didn't point out back then and I would
20  just say it now because we are talking about peer
21  review again, that as far as I can tell, as far as I
22  recall, the plenary talks for music theory are never
23  peer reviewed.  So that didn't surprise me at all.
24             The -- this, eight years -- or six years
25  ago, however many years ago, I don't think that it,
0123
 1  like, was sent out for the doubly-anonymous peer
 2  review.
 3       Q     Uh-huh.
 4       A     I don't think so.  I don't know how Frank
 5  Heidlberger dealt with the behind-the-scenes, but
 6  I'm pretty certain that I didn't see any reviewer
 7  one, reviewer two --
 8       Q     Okay.
 9       A     -- you know, which you normally see when
10  you are doing that.
11             So I do, of course, remember batting
12  around these articles with Ellen and Chris.
13       Q     Correct.  And they are close colleagues
14  of yours; is that fair to say?
15       A     Yeah, yeah, yeah.  They both went to the
16  CUNY Graduate Center, but I -- well, I actually
17  chaired Christopher Segall's dissertation committee.
18       Q     Uh-huh.
19       A     And -- and I -- I was also serving on
20  Ellen -- Ellen's dissertation committee.
21       Q     Is she junior to you?
22       A     Yeah, they're both junior to me.  They're
23  both associate professors, both with tenure --
24       Q     Uh-huh.
25       A     -- and I'm a full professor, so --
0124
 1       Q     Do you know if in this time period, 2018
 2  to 2020 while these articles were in the works,
 3  let's say --
 4       A     Uh-huh.
 5       Q     -- were they tenured then, to your
 6  knowledge?
 7       A     I think they were both untenured.
 8       Q     Okay.  And you had tenure at this time;
 9  right?
10       A     2016 is when I got tenure, yes.
11       Q     Okay.  So, again, although you have a
12  very clear memory of the Music Theory Online article
13  being peer reviewed -- correct?
14       A     Yes.
15       Q     -- you have no memory of getting peer
16  reviews for these articles?
17       A     Correct.
18       Q     And do you consider the vetting of a
19  conference proposal to give a paper at the Society
20  for Music Theory in any way comparable to, I think
21  what you called, double-anonymous peer review?
22       A     Yes and no.  It is usually anonymous.
23       Q     Uh-huh.
24       A     It is reviewed and -- and a decision is
25  handed down.  So yes.
0125
 1             No, in the sense that you are writing
 2  three- to 500 words about some ideas you want to
 3  present.  So it's certainly different from -- from
 4  an article that appears in a -- in a journal.
 5       Q     And just for the -- the sake of the
 6  record of a lay Jury that may not be involved in
 7  publication, three- to 400 words is basically a
 8  paragraph; right?
 9       A     I would call it two paragraphs.
10       Q     Okay.  And it's certainly not a article
11  that spans 24 pages such as you published in --
12       A     Correct.
13       Q     -- Theoria?
14       A     Correct.
15       Q     So in that sense, the 24-page paper that
16  was published in Theoria was not peer reviewed,
17  correct, to the best of your recollection?
18       A     Yes, that's correct.
19       Q     So if -- well, I'll strike that.
20             And do you have any reason to believe
21  that the process for publishing the other two
22  papers, the paper by Ellen Bakulina or Christopher
23  Segall, which are also listed here, were subjected
24  to any other process than -- or was it the same as
25  yours?
0126
 1       A     I -- I don't know.
 2       Q     Okay.  Was there any controversy that you
 3  recall over the review process at UNT for the
 4  publication of these articles?
 5       A     Any controversy, you --
 6       Q     Yes?
 7       A     -- said?
 8             No, not that I can recall.
 9       Q     Was there any criticism, to the best of
10  your knowledge, that these articles were not
11  subjected to double-anonymous peer review?
12       A     Not that I recall, no.
13       Q     While we are at it -- and this will be
14  the last few questions before we break for lunch --
15  have you ever published -- besides this article,
16  which we just talked about, and also the Spectrum
17  article, which we talked about earlier, have you
18  ever published articles that weren't subjected to
19  peer review in any academic journal?
20       A     I think the short answer would be no.
21             I could just elaborate a little bit and
22  say that I have -- well, certainly over 30
23  publications, somewhere between 30 and 40, let's
24  say.  The article is one genere, let's call it;
25  right.
0127
 1       Q     Of course.
 2       A     So a review essay, book chapters,
 3  review -- conference review, the introduction I
 4  mentioned earlier.  So obviously they all come with
 5  different sets of guidelines --
 6       Q     Uh-huh.
 7       A     -- and expectations.
 8             The academic articles that I have
 9  published have all been peer reviewed with, I
10  suppose, this exception.
11             And in my own mind, if I could just
12  elaborate a little bit, because I do recall that
13  this was not peer reviewed.  This almost in my --
14  it's almost as if it wasn't an article in the same
15  way that "Music Theory and the White Racial Frame"
16  was, if that makes sense.
17       Q     The -- the one that was published in
18  Music Theory Online?
19       A     Correct.  Yeah.
20       Q     Okay.  And -- well, we've already
21  discussed the -- the difference between that and
22  Spectrum.
23             Okay.  Just -- just one more question.
24             So have you ever known academic articles
25  to cite Wikipedia in any way?
0128
 1       A     No.
 2       Q     Do you know if Theoria has ever had
 3  articles that cite Wikipedia?
 4       A     I do not know.
 5       Q     Is that a sign that a journal is of
 6  inferior qualify, in your mind as an academic
 7  scholar?
 8       A     Well, it's highly unusual because of the
 9  open access, open nature of Wikipedia.
10       Q     Is it appropriate to -- to cite anything
11  like social media in the same way?
12       A     It depends on the article, it depends on
13  the journal, it depends on the editor, it depends on
14  the topic --
15       Q     Uh-huh.
16       A     -- of -- of what's being written in what
17  venue.
18             So you'd -- you'd have to be more
19  specific.
20       Q     Is it appropriate to cite, I don't know,
21  content on YouTube in an academic article?
22       A     If in fact the author -- of course, all
23  of these decisions would ultimately fall with the
24  editor and the editorial team; right?
25             And if in fact something is put up on
0129
 1  YouTube with some type of, I don't know, gravitas
 2  behind it, and I don't even know what that would
 3  look like frankly, I imagine that there -- I don't
 4  know, a Ted talk or something, that there's
 5  something that's out there, that that would
 6  potentially be more acceptable to the editor of an
 7  academic journal than Wikipedia would be because of
 8  the open nature of Wikipedia.
 9       Q     Would it be acceptable in an academic
10  field to quote Wikipedia, for instance, as an
11  example of what the state of common knowledge out
12  there in the world may be?
13       A     Sure.  That would be acceptable, yeah.
14       Q     Okay.
15       A     I mean, that's -- that's my opinion,
16  obviously.
17       Q     Your opinion as an informed academic
18  scholar?
19       A     Absolutely yeah.  But I'm sure there
20  would be people who would disagree with me.
21       Q     And, as you said, an author -- an author
22  of at least 30 academic publications?
23       A     Thank you for the compliment.
24       Q     And how many books to date?
25       A     Oh, just one.
0130
 1       Q     Just one?
 2       A     Yeah.
 3                  MR. ALLEN:  We'll go off the record.
 4                  THE VIDEOGRAPHER:  We are going off
 5             the record.  The time is 12:27.
 6                 (Whereupon, there was a recess taken
 7                 from 12:27 p.m. to 1:28 p.m.)
 8                 (Whereupon, Plaintiff's Exhibit 3,
 9                 Article Entitled "Music Theory and
10                 the White Racial Frame" Written by
11                 Philip Ewell, Published in Music
12                 Theory Online, was marked for
13                 identification.)
14                  THE VIDEOGRAPHER:  We are going back
15             on the record.  The time is 1:28.
16  BY MR. ALLEN:
17       Q     Professor Ewell, I have taken the liberty
18  of marking as Exhibit Number 3 for the record.  This
19  will be -- for the people who are remote, this will
20  be sent to you as marked 023.
21             It's an article in Music Theory Online,
22  which we've discussed earlier.  And I'm going to ask
23  you to confirm for the record that this is the
24  article that we discussed earlier?
25       A     Correct.
0131
 1       Q     And it's titled, "Music Theory and the
 2  White Racial Frame"?
 3       A     Correct.
 4       Q     And if I could ask you to turn to
 5  section 4.4 in the article, I believe you'll find
 6  that on page 11?
 7       A     Uh-huh.
 8       Q     Right above that is a subsection where
 9  there's the quote that I had read aloud into the
10  record earlier; correct?
11       A     Correct.
12       Q     And just as you said, it's a block quote
13  from William Drabkin?
14       A     Uh-huh.
15       Q     And prior to introducing that quote, you
16  said, "In numerous writings, he" -- meaning
17  Schenker; correct? -- "insisted that his views" --
18  meaning Schenker's views -- "on racial and national
19  hierarchies were key to his beliefs on life and on
20  music."
21             Right?
22       A     Right above the block quotation?
23       Q     Yeah.
24       A     Oh, yeah.
25             Okay.  Can you -- can you say that again,
0132
 1  please?
 2       Q     Yeah, the -- the second to last
 3  sentence --
 4       A     Uh-huh.
 5       Q     -- before that quote is introduced is
 6  your writing; correct?
 7       A     Correct.
 8       Q     And it says, "In numerous writings,
 9  he" -- meaning Schenker -- "insisted that his
10  views" -- meaning Schenker's view -- "on racial and
11  national hierarchies were key to his beliefs on life
12  and music."
13             Correct?
14       A     Correct.
15       Q     And in fact, you introduced that
16  paragraph with the topic sentence, "I wish to
17  recouple this severed link between Schenker's
18  hierarchal beliefs about music and his hierarchal --
19  hierarchical beliefs about people."
20             Did I read that correctly?
21       A     Yes.
22       Q     So -- and this is the last question, just
23  a yes or no question.
24             So it's fair to say, as we discussed
25  earlier, that you were quoting William Drabkin,
0133
 1  which we read earlier into the record, with
 2  approval?
 3       A     It's not just yes or no.
 4             It's -- it is his agreement with some of
 5  the -- the basic elements of recoupling this -- this
 6  severed link.
 7             With approval?  Ye- -- yeah, I think it's
 8  fair to just say with approval.  Yeah, that's fair.
 9       Q     And you believe there's a link between
10  this view of racial hierarchy, national hierarchies,
11  and Schenker's belief about the hierarchy of tones?
12       A     Yes.  I believe so because Heinrich
13  Schenker was very explicit himself in --
14       Q     Okay.
15       A     -- in making those connections.
16       Q     And I have no further questions about
17  that article, which we've already discussed.
18             I -- I would like to turn to discussing
19  another journal called the Journal for [sic]
20  Schenkerian Studies.
21             Are you familiar with that journal?
22       A     Yes.  Is it "Journal of" or "Journal
23  for"?
24       Q     I believe you are right it's "for
25  Schenkerian Studies"?
0134
 1       A     Oh, no, no.
 2             You said "for" and I thought it was "of,"
 3  but --
 4       Q     You know what, I don't want to make a
 5  mistake for the record here, so I --
 6             So you were correct to point that out.
 7  It is the Journal of Schenkerian Studies.
 8       A     Good.
 9       Q     Thank you.
10             And so I -- I take from your answer that
11  you are familiar with it?
12       A     Of course.
13       Q     Have you published in it?
14       A     Yes.
15       Q     When did you publish an article in the
16  Journal of Schenkerian Studies?
17       A     Oh, when?  2004 or '05.  It was one of my
18  very first published articles.
19       Q     Was that journal article handled by
20  Timothy Jackson?
21       A     I have no idea.
22       Q     Was there any suggestion at that time
23  that the Journal of Schenkerian Studies was
24  publishing racist articles?
25       A     What do you mean by "racist articles"?
0135
 1       Q     Well, I don't -- I don't mean anything by
 2  it, but what I'm asking:  Was anyone accusing the
 3  journal of being racist at that time, whatever they
 4  meant by it?
 5       A     I don't understand the question when you
 6  used -- if -- you'd have to define what "racist"
 7  means.
 8       Q     Do you recall anyone ever accusing the
 9  Journal of Schenkerian Studies at the time you
10  published it -- in it of being racist?
11       A     Again, race -- "racism" and "racist" are
12  in -- as I state, very clearly in my monograph.  I
13  consider those words trip wires, which is why I
14  don't often use them in my own work.  They've become
15  everything and nothing, specifically "racist."
16             So if you are asking me -- the question
17  is if a journal is racist --
18       Q     I'm not asking you if the Journal of
19  Schenkerian Studies is racist, so please don't
20  misunderstand my question.  Let me rephrase it.
21             Did you hear of anyone else accusing the
22  journal at the time you published in it of being
23  racist, whatever they may have meant by that?
24       A     It's hard to answer that question yes or
25  no if you can't clarify what "racist" means in this
0136
 1  context.
 2       Q     Did you ever hear anyone say the journal
 3  was racist?
 4       A     No.
 5       Q     Thank you.
 6             What was your understanding of Timothy
 7  Jackson's relationship to the Journal of Schenkerian
 8  Studies from the time you published in it back in --
 9  in the -- you know, sounds like the 2000s, to 2020?
10       A     Well, in that time, I have to be honest,
11  I basically never thought of that journal.
12       Q     Uh-huh.
13       A     I published in it and then I -- then
14  20 years -- well, I don't know how many years, but
15  almost 20 years passed.
16       Q     Uh-huh.
17       A     And if you were to say that Timothy
18  Jackson was part of the original -- my original
19  thing, I would -- I wouldn't be surprised.
20             But I just don't recall 20 years ago what
21  his relationship was, if there was a relationship,
22  to the journal at that point.
23       Q     By "your thing," you mean your article?
24       A     My article and it was in Volume 1, the
25  very first issue of the journal.
0137
 1             And then up until Volume 12, which had
 2  the symposium of responses to my plenary talk --
 3       Q     Uh-huh.
 4       A     -- that -- it was at that time that it
 5  was kind of -- my memory was jogged that, Oh yes,
 6  Timothy Jackson has something to do with this
 7  journal, in fact.
 8       Q     Okay.  So you anticipated my next
 9  question is that you were aware of a special
10  symposium meant to be published in Volume 12 of the
11  Journal of Schenkerian Studies?
12       A     I was -- the clarification.  I was aware
13  when exactly?
14       Q     Well, why don't you answer your own
15  question.
16             When were you aware that there was a
17  symposium to be published in Volume 12?
18       A     Good.  Okay.  That's a question I can
19  answer.
20             I think -- and I wrote about this in my
21  book -- I think somewhere or somehow I heard that
22  there might be a symposium in the fall of -- oh,
23  God, this would have been the -- right -- some time
24  the fall, winter of 2019 --
25       Q     Uh-huh.
0138
 1       A     I'm sorry, 2019 -- yes, 2019.
 2             But then I for sure became aware of it
 3  when there was a call for papers announced.  And I
 4  think, if I'm not mistaken, that was on
 5  December 31st, 2019.
 6             And it had a very quick turnaround, which
 7  everybody was like, Wait, what's going on with this?
 8             So it was a strange three-week
 9  turnaround, like, sub- -- submit this by then.
10       Q     Uh-huh.
11       A     So when that call for papers was
12  announced, whatever date it was, but late -- call it
13  late December 2019, I was of course aware --
14       Q     Uh-huh.
15       A     -- that this was happening.
16       Q     Do you remember who you heard that from?
17       A     I think it was the SMT Listserv where
18  call- -- where such calls are usually put out.
19       Q     Okay.  And so you were a subscriber to
20  the SMT list -- Listserv?
21       A     Correct.
22       Q     And you had already testified today, I
23  believe, you were -- you were at that time a member
24  of the Society for Music Theory, SMT?
25       A     Yes.
0139
 1       Q     Did you ever read any of the articles in
 2  the symposium which appeared in Volume 12, published
 3  in 2020?
 4       A     Not when it came out.
 5       Q     Have you since read them?
 6       A     Yes.
 7       Q     When did you read them?
 8       A     As I was writing my book, because that's
 9  when I actually did respond to ten of the authors
10  of -- of that symposium.
11             And -- well, the book came out in
12  2023 April, so I would guess if I would say when I
13  actually read the 15 responses -- and I have to put
14  the "responses" in scare quotes because it didn't
15  seem to me that they were really responses to what I
16  had said in the plenary -- I would guess -- let me
17  think here -- fall -- fall of '21, early 2022.
18       Q     Okay.
19       A     Some time in 2022 probably.
20       Q     Okay.  And this was the time leading up
21  to the publication of your monograph; is that fair?
22       A     Correct, yeah.
23       Q     Okay.
24       A     During the process.  Because chapter
25  three or four is in fact --
0140
 1       Q     Okay.
 2       A     -- on the Journal -- Volume 12 of the
 3  Journal of Schenkerian Studies.
 4       Q     And just to be clear, by "monograph," we
 5  understand I mean an ac- -- an academic book?
 6       A     Correct.
 7       Q     All right.  So I want to take you back to
 8  the time before you had read the responses published
 9  in the symposium and when you heard about it.
10             And what was your criticism of the
11  symposium in that time window before you had
12  actually read the symposium papers?
13       A     I had seen on Twitter and probably
14  Facebook -- I've -- I left Twitter between one and
15  two years ago; I deleted my account.
16             But I was on Twitter and Facebook and I
17  saw some of the quotations, and they were very
18  strange, I thought to myself.
19       Q     Uh-huh.
20       A     And of course, I knew that I had not been
21  contacted to be part of this symposium, which struck
22  me as strange.  So I knew about some of those
23  things.
24             Most of what I was -- any -- if you are
25  asking me what my opinion was of what was going on
0141
 1  not having read the actual responses, it was
 2  probably based on what I was seeing on social media.
 3       Q     What was based on what you were seeing on
 4  social media?  What do you mean by that?
 5       A     My opinions about what the --
 6       Q     Okay.
 7       A     -- symposium was about.
 8       Q     And your opinions were that this seemed
 9  strange?
10       A     Yes.
11       Q     And stuff.
12             Do you think it was improper for the
13  Journal of Schenkerian Studies to publish the
14  symposium before you read it?
15       A     I believe it was improper to do so
16  without any participation by me.
17       Q     Any other reason you thought it was
18  improper for the Journal of Schenkerian Studies to
19  publish the symposium besides not contacting you?
20       A     The anonymous submission.  One of the
21  submissions was written anonymously, and that struck
22  me as very strange also.
23       Q     So we have -- there was -- you allege
24  there was no contact to you.  There's also an
25  anonymous publication in the symposium.
0142
 1             Was there anything else that you
 2  criticized about the Journal of Schenkerian Studies
 3  publishing the symposium?
 4       A     I wouldn't say there was no contact.  I
 5  mentioned in my book that two professors at the
 6  University of North contact -- North Texas contacted
 7  me as it was being put together.
 8             One was Ellen Bakulina.  The other was
 9  Stephen Slottow --
10       Q     Okay.
11       A     -- who I think is an associate professor
12  of music theory --
13       Q     Uh-huh.
14       A     -- at the University of North Texas, also
15  one of the managing editors, along with Timothy
16  Jackson, of that -- of that volume.
17             Separately, they contacted me.  Stephen
18  Slottow wanted to know where he could find the
19  slides to the presentation I had given.
20       Q     The -- the plenary talk at the SMT --
21       A     Correct.
22       Q     -- in 2019?
23       A     Correct.  Yeah.
24             And at that point the slides were on my
25  website --
0143
 1       Q     Uh-huh.
 2       A     -- so I told him where to get them.
 3       Q     Uh-huh.
 4       A     And then Ellen Bakulina wrote an e-mail
 5  simply asking me if I had any questions about these
 6  responses that were being put together, to which I
 7  responded, No, I don't have any questions.
 8       Q     Did anything prevent Ellen Bakulina from
 9  inviting you to participate in the Journal of
10  Schenkerian Studies symposium?
11       A     I have no idea.
12       Q     But she didn't invite you?
13       A     No.
14       Q     You don't know of anything that prevented
15  her from inviting you to participate?
16       A     No.
17       Q     So let me again summarize:  You -- you've
18  identified the, I guess, failure of the journal to
19  contact you in the way you wanted to be contacted;
20  is that fair?
21       A     No.  It -- the way I want to be contacted
22  is -- well, it's not really up to me.
23             I'm -- I am taking issue with the notion
24  that somebody would respond to what effectually was
25  nine minutes of a discussion of Heinrich Schenker --
0144
 1  there were another 13 minutes that had nothing to do
 2  with Heinrich Schenker that I spoke about at that
 3  plenary session, so Heinrich Schenker was roughly
 4  nine minutes -- that responses would be put together
 5  without having the person to whom they were
 6  responding have a chance to address the issues
 7  brought up in the responses, which is industry
 8  standard for such colloquies or symposiums in
 9  academia.
10       Q     What made you think you were being
11  excluded from commenting on the symposium responses
12  to your plenary address?
13       A     I have no idea.
14       Q     Did anyone tell you you would not be
15  allowed to respond to them?
16       A     No.
17       Q     And you now said that you actually were
18  contacted both by Professor Slottow and Ellen
19  Bakulina; correct?
20       A     Yeah, but that was not to ask me to be
21  part of this --
22       Q     And you were --
23       A     -- symposium.
24       Q     -- you received the SMT call for papers;
25  correct?
0145
 1       A     I did.
 2       Q     But it's your testimony today that that
 3  also wasn't an appropriate way to contact you?
 4       A     Yes, it was not appropriate.
 5       Q     And can you just explain for the record
 6  what would have been the most appropriate way to
 7  contact you in your experience as an academic?
 8       A     Well, I've never been a respondent like
 9  that so I would only be speculating.
10             But it would -- I -- I presume that it
11  would be one of the lead editors who would reach out
12  to the person who was -- who -- who originally gave
13  the talk to which people were responding to invite
14  them to be part of a colloquy or symposium.
15       Q     Did you reach out to anyone on the
16  editorial board to ask them about that?
17       A     No.
18       Q     Why not?
19       A     It's not my place to invite myself to a
20  party thrown in my honor.
21       Q     Was there any criticism of your paper
22  aired at the plenary talk you gave in 2019?
23       A     Not to my knowledge.
24       Q     Was that proper?
25       A     A lack of criticism?
0146
 1       Q     That there wouldn't be any invitation to
 2  criticism of your paper at the symposium that you
 3  gave -- not symposium, the plenary talk you gave in
 4  2019?
 5       A     The question is:  Would that have been
 6  proper, you said?
 7       Q     Was it proper that there was no form for
 8  criticism of your plenary address?
 9       A     Yeah, plenary addresses never really --
10       Q     Okay.
11       A     -- have Q&As afterward.  In music theory,
12  I should say.
13       Q     So, again, I'm trying to get a -- the
14  universe of things that you thought was improper
15  about the publication of the symposium in 2020 by
16  the Journal of Schenkerian Studies.
17             It's not improper that it addressed your
18  plenary talk; right?
19       A     No.
20       Q     But you've said that they didn't contact
21  you in the way that you have argued is industry
22  standard?
23       A     Correct.
24       Q     You've also identified the publication of
25  an anonymous author?
0147
 1       A     Correct.
 2       Q     Are there any other things you found to
 3  be improper about the Journal for -- of Schenkerian
 4  Studies publication of the symposium?
 5       A     Only -- I -- I would say only what I've
 6  read in what was ultimately called, I think, an ad
 7  hoc panel that some UNT professors had convened to
 8  look into how this journal issue was put together.
 9             That is something I did read --
10       Q     Uh-huh.
11       A     -- and I think I've hit on the points
12  that they made.  And that's what I'm basing this on
13  because I hadn't read --
14       Q     Okay.
15       A     -- the contents.
16       Q     When did you read the ad hoc panel
17  report?
18       A     Probably shortly after it came out and I
19  can't remember when that was.
20       Q     And just for the record, is this the ad
21  hoc panel that was published by the University of
22  North Texas on its website on November 25th, 2020?
23       A     You -- probably but, you know, I would
24  need to see that document.
25       Q     Do you remember it being around the end
0148
 1  of 2020 when that appeared?
 2       A     I can't recall.
 3       Q     Okay.  You don't know of any other ad hoc
 4  panel that addressed the Journal for Schenkerian
 5  Studies, though; correct?
 6       A     Correct.
 7       Q     Okay.  What were the things that you read
 8  in the ad hoc panel's report that stand out to you
 9  as improper?
10       A     I think the two that I've mentioned:
11  The -- the inclusion of an anonymous --
12       Q     Uh-huh.
13       A     -- author, and the lack -- oh, the lack
14  of peer review that's -- that we hadn't talked about
15  that.  So three things.
16             The lack of peer review, the anonymous
17  author, and the one that we just said, the fact that
18  I was not part of the colloquy.
19       Q     Okay.  Any other things that you
20  remember?
21       A     No.
22       Q     Okay.  So as you sit here today, you only
23  have identified the lack of peer review, the
24  anonymous author's publication, and that you weren't
25  contacted in the way that you feel was an industry
0149
 1  standard?
 2       A     Yes.
 3       Q     Okay.  Did you ever argue that the
 4  Journal for Schenkerian Studies should be censored?
 5       A     I think I used in my book kind of as a
 6  question, Is there no reason for condemnation, or
 7  possibly I used the word "censure."
 8             In other words, it seems so out of the
 9  ordinary, that anonymous authorship and just to not
10  invite the person, that it -- that, you know, I
11  prob- -- think in my book I used, Is there -- is
12  there no situation in which condemnation is -- is --
13  is appropriate for out of the ordinary or as I just
14  said, not industry standard aspects of the
15  publication of this issue.
16       Q     Do you approve of the censorship of the
17  Journal of Schenkerian Studies?
18       A     I don't know enough about it, frankly,
19  to -- to say that I approve of it.
20       Q     Are you aware that the Journal of
21  Schenkerian Studies is no longer published by the
22  University of North Texas Press?
23       A     I was unaware of that.
24       Q     Now that you do know of that, assuming
25  that it's true, do you approve of that?
0150
 1       A     I don't know enough about it to make a
 2  judgment on that.
 3       Q     Do you think a journal should be ordered
 4  to cease publication for pub- -- for publishing the
 5  symposium that was published in the Journal of
 6  Schenkerian Studies that was published in 2020?
 7       A     I would need to know more information.  I
 8  really couldn't say.
 9       Q     What more information do you need to
10  know?  It stopped publication; right?
11       A     You just said, "allegedly stopped
12  publication," so --
13       Q     No, I said it did stop publication.
14       A     Well, you added -- you added the word
15  "allegedly."
16       Q     Let me do this.
17       A     But that's okay.  That's okay.
18       Q     Assume that that's true.
19       A     Okay.
20       Q     Is that appropriate?
21       A     I don't know enough about it to make a
22  comment on it.
23       Q     You commented earlier that you thought
24  the First Amendment was a benefit to the United
25  States; correct?
0151
 1       A     Yes.
 2       Q     And you do though -- know that the
 3  University of North Texas is a public institution --
 4       A     I do, yes.
 5       Q     -- of the State of Texas?
 6             Let me finish.
 7             So is it appropriate in your view as an
 8  academic professional for a state institution to
 9  order the publication of a journal to cease over the
10  publication of the symposium of a --
11                  MR. PAINTER:  Objection.
12                  Are with you asking for a legal
13             opinion interpreting the First Amendment
14             or are you simply asking for an opinion
15             generally as an academic --
16                  MR. ALLEN:  I believe I prefaced the
17             question:  In his experience as an
18             academic professional.
19                  MR. PAINTER:  So you are not asking
20             for First Amendment interpretation and
21             the fact that it's a state institution
22             and the legal questions are not a factor
23             in your --
24                  MR. ALLEN:  Well, the state
25             institution is a simple fact.
0152
 1                  MR. PAINTER:  Yes.
 2                  MR. ALLEN:  That's not a legal issue
 3             in this case.
 4                  The First Amendment is something
 5             he's already testified to.
 6                  MR. PAINTER:  Yes, but he's not
 7             provided legal opinion on that and you
 8             are not asking him --
 9                  MR. ALLEN:  I'm not asking for a
10             legal opinion.
11  BY MR. ALLEN:
12       Q     So, Professor Ewell, I'm just asking in
13  your experience as an academic professional and
14  assuming it's true that the University of North
15  Texas has instructed the University of North Texas
16  Press to stop publishing the Journal of Schenkerian
17  Studies, is that appropriate in your view?
18       A     I don't have enough information to make
19  that judgment.
20       Q     And what more information would you need?
21       A     Well, I could imagine I would need to
22  know some more of the particulars about what
23  actually happened behind the scenes and I'm just not
24  privy to that information.
25       Q     You've read the University of North
0153
 1  Texas, quote, ad hoc panel report; correct?
 2       A     Yes.
 3       Q     That wasn't enough information for you?
 4       A     Correct.  It was not enough information.
 5       Q     Were you ever aware that Timothy Jackson
 6  also replied -- wrote a reply to that so-called ad
 7  hoc panel report?
 8       A     I was not.
 9       Q     Do you know of anywhere his response to
10  the ad hoc panel report has been published?
11       A     No.
12       Q     To your knowledge, is that available on
13  the University of North Texas' website?
14       A     I have no idea.
15       Q     Is that industry standard to issue a
16  report condemning an academic and not allowing his
17  response to be published on the website?
18       A     I have no idea.
19       Q     How long have you been a professor?
20       A     Twenty-two years.
21       Q     But you have no idea?
22       A     I have no idea about the question you
23  just asked me, yeah.
24       Q     Did you feel personally demeaned by the
25  symposium published in the University of North Texas
0154
 1  Press' Journal of Schenkerian Studies?
 2       A     Only in the sense that I was not invited
 3  to this process.
 4       Q     If you were invited, would you have
 5  responded?
 6       A     I would have needed to see the outlines
 7  of the symposium, who was saying what.
 8             I wouldn't have agreed immediately, but I
 9  would have been interested in being part of it.
10       Q     Did you ever speak with Ellen Bakulina
11  about her failure to invite you to respond to
12  symposium?
13       A     No.
14       Q     Why didn't you raise this issue with her?
15       A     It wasn't my place, I felt.
16       Q     Did you talk to any of the editors of the
17  Journal of Schenkerian Studies about the failure to
18  invite you?
19       A     No.
20       Q     Did you ever feel dehumanized by the
21  Journal of Schenkerian Studies?
22       A     Well, you used the word "demeaned" and
23  now you are saying "dehumanized."  So I guess I
24  would ask for a little clarification.
25             What's the difference between those two
0155
 1  things to you?
 2       Q     Well, I'm not testifying today,
 3  Professor Ewell.  So why don't we start with what
 4  you understand by "dehumanized"?  You can put that
 5  in the record.
 6       A     May I ask for points of clarification of
 7  you?
 8       Q     No.  I'm asking you what you understand
 9  by "dehumanized"?
10       A     I'd like a -- a minute just to consult
11  with my counsel.
12                  MR. ALLEN:  He has to answer the
13             question that's on the record.
14                  MR. PAINTER:  Okay.  Are you saying,
15             did he use the word "dehumanize"?
16                  MR. ALLEN:  I want him to explain
17             what he understands by "dehumanize."
18             That's a perfectly normal question in a
19             deposition.
20                  MR. PAINTER:  Yeah.  When he used
21             it?  Are you referring --
22                  MR. ALLEN:  He's an academic with
23             20 years-plus experience.  If he's --
24                  MR. PAINTER:  But if you're
25             referring --
0156
 1                  MR. ALLEN:  If he's going to testify
 2             that he has no idea --
 3                  MR. PAINTER:  Yeah.
 4                  MR. ALLEN:  -- what "dehumanize"
 5             means, he can put that on the record.
 6                  MR. PAINTER:  Okay.  But you are not
 7             asking about a specific time which he
 8             said "dehumanized" in the past?  You are
 9             not asking him that, are you?
10                  MR. ALLEN:  Richard, I'm conducting
11             my deposition and there's a question
12             before him and I want him to answer it.
13  BY MR. ALLEN:
14       Q     If you don't know the definition of
15  "dehumanize" or if you don't understand that word,
16  you can just say so.
17             But I want to know what you understand by
18  "dehumanize"?
19       A     And I just am pointing out that you used
20  whether I felt demeaned and then you asked whether I
21  felt dehumanized.
22             And I think it's perfectly reasonable for
23  me to say -- to ask you for -- as a point of
24  clarification, and that's all it is really, what the
25  difference is between demeaning and dehumanizing.
0157
 1             If you are asking me -- so I'll go ahead.
 2  We don't need to --
 3       Q     Yes.
 4       A     -- to go further down that rabbit hole --
 5  whether I know what the word "dehumanizing" means, I
 6  have some ideas, yeah.
 7       Q     Well, please explain for the Court what
 8  you understand by the word "dehumanized"?
 9       A     To be treated less than human.
10       Q     And did you feel that the Journal treated
11  you less than human in this time period before you
12  read the actual article?
13       A     Only in the sense that they didn't reach
14  out to me to simply make me part of the process.
15       Q     So that, to you, is dehumanizing?
16       A     I think I would prefer to say it's
17  demeaning, the way that you said earlier, and not
18  dehumanizing.
19       Q     Okay.  Incidentally, are you aware of an
20  open letter -- or let me put it this way -- an open
21  letter by the Society for Music Theory condemning
22  the symposium published in the Journal of
23  Schenkerian Studies in 2020?
24       A     I was aware of that, yeah.
25       Q     Do you believe that open letter was
0158
 1  consistent -- well, let me back up and strike that
 2  question.
 3             What did the open letter say, to your
 4  knowledge?
 5       A     Oh, to my recollection, yeah, it was
 6  condemning -- it was an open letter on anti-racism
 7  in the Society for Music Theory.
 8             It was drafted by eight music theorists.
 9  It had over 900 signatories because it was an open
10  letter.  I was one of the signatories.
11       Q     Uh-huh.
12       A     It -- it mentioned the Journal of
13  Schenkerian Studies, Volume 12, although I don't
14  think it mentioned Timothy Jackson's name.
15             And it essentially raised some points
16  about how we can think about anti-racism in the
17  field in the Society for Music Theory moving
18  forward.
19       Q     Do you think that was consistent with the
20  SMT statement of -- on ethics?
21       A     I don't know what you are talking about,
22  the statement on ethics.
23       Q     Sure.
24                 (Whereupon, Plaintiff's Exhibit 4,
25                 Printout from Society of Music Theory
0159
 1                 Website, was marked for
 2                 identification.)
 3                  MR. ALLEN:  I want to introduce in
 4             the record as Exhibit 4 a printout from
 5             the website of the Society for Music
 6             Theory.
 7                  For the people online, this was
 8             marked in the exhibit pack as "07 SMT
 9             statement."
10                  And I'm handing a copy to
11             Professor Ewell's counsel.
12                  MR. PAINTER:  Do we have the letter
13             too as an exhibit so he can look at that
14             letter?
15                  MR. ALLEN:  I don't.  Not right now.
16                  MR. PAINTER:  So his recoll- --
17             he'll just have to try to remember what
18             was in that letter.
19                  MR. ALLEN:  Uh-huh.  That's fine at
20             this time.
21                  MR. PAINTER:  Okay.
22  BY MR. ALLEN:
23       Q     Have you had a chance to review this,
24  Professor Ewell?
25       A     One second.
0160
 1       Q     Sure.
 2       A     Okay.
 3       Q     So you testified earlier that you believe
 4  strongly in academic societies like the Society for
 5  Music Theory honoring its own policies; right?
 6       A     Yes.
 7       Q     They should follow their own rules;
 8  right?
 9       A     Correct.
10       Q     This SMT policy on ethics should be
11  followed by the Society for Music Theory; correct?
12       A     Correct.
13       Q     It "upholds and promotes the following
14  basic principles of ethical conduct in our
15  profession," in the first line; correct?
16       A     Correct.
17       Q     And they are numbered one through seven?
18       A     Correct.
19       Q     The first is, "Freedom of inquiry and the
20  widest possible access to information of use to
21  scholars."
22             Right?
23       A     Correct.
24       Q     Can we both agree that the censorship of
25  an academic journal is not consistent with that
0161
 1  policy number one?
 2       A     Can I ask what you mean by "censor- --
 3  censorship"?
 4       Q     Sure.  Ordering an academic publication
 5  to cease and suppressing its publication?
 6       A     And now the original question, please?
 7       Q     Is suppressing the publication of an
 8  academic journal consistent with the principle
 9  number one in the SMT policy on ethics?
10       A     I -- I would say no.
11       Q     I want to skip down to number three.
12             "Respect for diverse points of view and
13  the potential worth of scholarship on any aspect of
14  music theory or any related subject."
15             Did I read that correctly?
16       A     Uh-huh.  Yes.
17       Q     Is the -- I'm sorry.
18             Is the suppression of a journal, an
19  academic journal, by a state institution such as the
20  University of North Texas consistent -- consistent
21  with principle number three?
22       A     One second.  I'm going to read it again,
23  please.
24       Q     Uh-huh.
25       A     It's not consistent only in the sense
0162
 1  that the diverse points of view to which they claim
 2  they -- they followed should have included a
 3  response the person to whom they were responding.
 4             So they did not respect the diverse
 5  points of view because that --
 6       Q     "They" being?
 7       A     "They," the -- the Journal of Schenkerian
 8  Studies, Volume 12, did not respect the diverse
 9  points of view.
10             If they had, I would have been invited --
11  and I shouldn't have to respond to a call for
12  papers -- invited to be part of a colloquy because
13  this is academic freedom and inquiry.
14       Q     So that really wasn't my question.
15             Was suppressing the publication of the
16  Journal of Schenkerian Studies consistent with
17  principle number three?
18       A     I don't know in the sense that -- in the
19  sense that I don't believe that they completely
20  followed point number three, whether --
21       Q     "They" being the SMT?
22       A     No, "they" being Volume 12 of the Journal
23  of Schenkerian Studies.
24             And how exactly authorities at the
25  University of North Texas deal with that, well, I
0163
 1  don't know.  I can't comment on that.  I just don't
 2  know enough.
 3       Q     Do you believe the SMT open letter
 4  condemning the Journal of Schenkerian Studies as you
 5  remember it was consistent with these policies on
 6  ethics that they have promulgated here?
 7       A     That's a tough one because I don't
 8  rec- -- remember it, obviously, verbatim.  I -- I
 9  just -- I -- I -- that's too hard for me to answer
10  because I just don't recall what -- what's written
11  there.
12       Q     If you believed the SMT had violated this
13  policy on ethics at the time, would you have spoken
14  up about it?
15       A     If I believed that they had violated it?
16             I believe that it would have been
17  virtually impossible for me to know that at the
18  time.  So that's a very hypothetical question that I
19  would rather not answer yes to because of its
20  hypothetical nature.
21       Q     That's fair enough.
22             Do you remember anyone in the SMT raising
23  the policy on ethics at that time in reference to
24  the Journal of Schenkerian Studies?
25       A     Well, there were the eight authors of the
0164
 1  open letter.  They certainly raised it.
 2       Q     No.  No.  I mean, did they raise this
 3  policy on ethics?
 4       A     Oh.  Raise -- I don't recall anyone, no.
 5       Q     Okay.  Were you aware of this policy on
 6  ethics in 2020?
 7       A     I don't think I was, no.
 8                  MR. ALLEN:  I'm going to introduce
 9             in the record a document I've marked as
10             Exhibit Number 5.
11                  And for people who are viewing the
12             deposition virtually, this was originally
13             in your packet, 012, the Denton Record
14             Chronicle article.
15                  And I'm handing a copy to
16             Professor Ewell's counsel.
17                 (Whereupon, Plaintiff's Exhibit 5,
18                 Article Titled "A UNT Professor
19                 Challenged Claims of Racism in Music
20                 Theory and Now He's Facing the Music"
21                 by Lucinda Breeding Dated August 2,
22                 2020, was marked for identification.)
23  BY MR. ALLEN:
24       Q     So, Professor Ewell, I -- I'm going to
25  give you some time to look at this, but I want to
0165
 1  just represent for the record that this is an
 2  article with the title "A UNT professor challenged
 3  claims of racism in music theory and now he's facing
 4  the music" by Lucinda Breeding, a journalist, and
 5  it's dated August 2, 2020.
 6             Did I read that correctly?
 7       A     Yes.
 8       Q     Now please examine it.
 9             But I really don't want to discuss -- the
10  whole article isn't that relevant to the entire
11  discussion we are having today.
12             But I do want to address points in the
13  article where she quotes you.
14       A     Uh-huh.
15       Q     So before we do that, do you remember
16  being interviewed by Cindy Breeding?
17       A     Lucinda, yeah?
18       Q     Correct.
19       A     Yeah.  Yeah, I think so, yes.
20       Q     Do you have any reason to think that she
21  would misquote you in this article?
22       A     No, other than it wasn't recorded, as far
23  as I can recall so it's taking notes.
24       Q     Did you make any objection to any of the
25  quotations of you in this article to the paper?
0166
 1       A     Can I -- may I read it?
 2       Q     You may, but I just want to get these --
 3  some -- some general questions out of the way first.
 4       A     Please, go ahead.  Ask again.
 5       Q     Did you ever object to the journalist or
 6  to the paper that you were misquoted?
 7       A     No.
 8       Q     Okay.  So please go ahead and read.  I --
 9  and feel free to read the whole thing, but --
10       A     Uh-huh.  Uh-huh.
11       Q     -- on page three of this document, I
12  believe you are mentioned --
13       A     Uh-huh.
14       Q     -- and quotes by you?
15       A     Uh-huh.
16       Q     And then -- and so on it goes.
17                  THE WITNESS:  Can I use this pen?
18                  MR. ALLEN:  I'm going to ask you not
19             to mark on the exhibit.
20                  Perhaps -- I don't want to keep him
21             from making notes, Richard --
22                  MR. PAINTER:  Okay.
23                  MR. ALLEN:  -- but I don't want him
24             to mark on the exhibit.
25                  THE WITNESS:  Can I just --
0167
 1                  MR. ALLEN:  If you want -- do you
 2             mind --
 3                  MR. PAINTER:  You can mark on my
 4             copy.
 5                  THE WITNESS:  Can I?
 6                  MR. ALLEN:  And we are actually
 7             going to take your notes and enter them
 8             into the record, too, just so you know.
 9                  MR. PAINTER:  Yeah.
10                  THE WITNESS:  I've just got to
11             circle something.
12                  MR. ALLEN:  Yeah, please.
13                  MR. PAINTER:  Yeah.
14                  THE WITNESS:  Okay.
15                  MR. ALLEN:  Again, this is a
16             conversation for the record.  That's why
17             we are doing this.
18                  MR. PAINTER:  Okay.
19                  THE WITNESS:  Okay.
20  BY MR. ALLEN:
21       Q     So I just want to call your attention to
22  page three --
23       A     Uh-huh.
24       Q     -- where I believe you're -- you're
25  mentioned with some extensive quotations by the
0168
 1  journalist, Ms. Breeding.
 2             You are talking about the -- quote, a
 3  white racial frame of music theory; correct?
 4       A     Yes.
 5       Q     And there's a relatively lengthy quote
 6  from you.
 7       A     Uh-huh.
 8       Q     It says, "'In its most abstract form,
 9  music theory is not racist,' Ewell said.  'It's
10  talking about music in an analytical way.  But I
11  look at this question from the angle of the United
12  States and its history.  It takes something as a
13  simple Google search of the country's Naturalization
14  Act of 1790, which is the very first citizenship act
15  in the country and I can sum it up:  The
16  Naturalization Act of 1790 said in order to be a
17  citizen of these United States, you've got to be
18  white.  Have a nice day.'"
19             Did I read that accurately?
20       A     Yes.
21       Q     And then it goes on to quote you still
22  further, "'If you think about it from that angle, if
23  you think of American music theory, then it has to
24  be part of that white racial frame,' Ewell said."
25             It goes on, "Quite literally, the people
0169
 1  in the U.S. at that time, the people of color, they
 2  weren't important because they weren't white.  We
 3  shouldn't be fooling ourselves that music theory
 4  can't be part of that history.  That's as structural
 5  and institutional as it gets."
 6             Did I read that correctly?
 7       A     Yes.
 8       Q     And is it fair to say that's more or less
 9  similar to what you've testified to today, this link
10  between the Naturalization Act of 1790 and the white
11  racial frame of music theory?
12       A     Not quite.
13             So you -- it seems to me you are trying
14  to draw a direct line between 1790 and 2024 when you
15  say those two things.  And --
16       Q     I'm just trying to understand what you
17  are saying?
18       A     And I'm going to explain that.
19             So without weigh stations every ten to
20  20 years, it's -- it's hard to make that.  It -- it
21  doesn't sound -- it sounds nonsensical to say that
22  the first Naturalization Act of 1790 is directly
23  related to music theory's white racial frame.  And
24  that is inaccurate.
25             So if you are asking me that it is, my
0170
 1  answer is no, it's not.  It's --
 2       Q     But here you say, "That's as structural
 3  and institutional as it gets."
 4             Right?
 5                  MR. PAINTER:  He should be allowed
 6             to finish --
 7                  THE WITNESS:  Yeah.
 8                  MR. PAINTER:  -- the question --
 9             answer.
10                  THE WITNESS:  Yeah.
11       A     And so the -- what's structural and
12  institutional is how over decades and centuries all
13  of these ideas of white superiority --
14  BY MR. ALLEN:
15       Q     Uh-huh.
16       A     -- and non-white inferiority manifested
17  themselves in many, many ways in our country, as I'm
18  sure we all know here.
19             And ultimately, in my field, music
20  theory, which really became a well defined field in
21  the United States only in the 1960s, obviously very
22  hard for something in 1790 to directly affect
23  something that happened in the 1960s.
24             Absolutely is part of the same white
25  supremacist structures and institutions that have
0171
 1  happened long before, frankly, 1790 in the United
 2  States of Am- -- well, in the country that became
 3  known as the United States of America.
 4       Q     Do you have any reason to think that that
 5  was misquoted, what Cindy Breeding wrote in this
 6  article?
 7       A     No.
 8       Q     Can we skip forward to page -- at the
 9  bottom, you'll see five of five?
10       A     Uh-huh.
11       Q     In the middle of that page there's
12  another quote by you and it -- it begins the
13  paragraph before.
14             "Ewell said he has seen some of the
15  tweets about the journal before he 'unplugged.'  He
16  hasn't read the rebuttals and doesn't plan to, he
17  said."
18             Did I read that correctly?
19       A     Correct.
20       Q     Do you understand that to be referring to
21  your engagement with the Twitter comments about the
22  Journal of Schenkerian Studies?
23       A     Among other comments, Facebook, and yeah.
24       Q     And that's more or less consistent with
25  what you discussed today about your getting off
0172
 1  Twitter; right?
 2       A     Yes.  And also I can recall when -- this
 3  was kind of blowing up, I think, in July, August of
 4  20- --
 5       Q     Uh-huh?
 6       A     -- '20.  2020?
 7       Q     Yeah.
 8       A     Yeah.  Yeah.  The pandemic was just
 9  starting, yeah.  And I can recall I spoke with one
10  journalist, and it might have been this person,
11  actually --
12       Q     Uh-huh.
13       A     -- when I was unplugged and I was
14  literally upstate with my wife and son.
15       Q     And you say here -- or it says here in
16  the article, "He hasn't read the rebuttals and
17  doesn't plan to."
18             Correct?
19       A     Uh-huh.
20       Q     Is that -- was that accurate at that
21  time?
22       A     Yeah.
23       Q     And then you are quoted saying, "I won't
24  read them because I will not participate in my own
25  dehumanization."
0173
 1             Did I read that right?
 2       A     Yeah.
 3       Q     Is that something you told to the
 4  journalist?
 5       A     Yes.
 6       Q     And you also say here, "They were
 7  incensed by my blackness challenging their
 8  whiteness.  The Journal of Schenkerian Studies has
 9  done far more to damage Schenkerian studies than
10  Schenkerian studies."
11             Did I read that correctly?
12       A     You did and that's a bit of a misquote.
13  It doesn't quite read.  But --
14       Q     But --
15       A     -- you get the idea.
16       Q     -- what is misquoted?
17       A     Well, the Journal of Schenkerian Studies
18  has done -- done far more to damage the field of
19  Schenkerian studies than the field of Schenkerian
20  studies itself.
21       Q     That's a good clarification.
22             All right.  And did anyone who was
23  connected to the journal ever criticize you for your
24  blackness?
25       A     Anyone connected to the journal?  So if I
0174
 1  take comments, for instance, from David Beach, who
 2  said, "Philip -- my suggestion to Philip Ewell is
 3  that he stop complaining about us white guys."
 4       Q     Who is Philip Beach?
 5       A     I'm sorry, David Beach --
 6       Q     David Beach?
 7       A     -- wrote in response to my nine minute
 8  plenary talk, "My advice to Philip Ewell is that he
 9  stop complaining about us white guys."
10             That would probably fall under the rubric
11  of being incensed by my blackness.
12       Q     Did he mention your blackness or just
13  said you shouldn't complain about his whiteness?
14       A     Did David Beach mention my blackness?  I
15  would have to go back to his actual report.
16       Q     And at that time you hadn't read those
17  reports, had you?
18       A     Correct.
19       Q     At this time had anyone from the journal
20  expressly criticized you for being black?
21       A     No.
22       Q     And you did say that you would not
23  participate in your own dehumanization; right?
24       A     Correct.
25       Q     You didn't say "demeaning" you or
0175
 1  anything like that here?
 2       A     Correct.
 3       Q     So you seem to know what that word meant
 4  at this time; right?
 5       A     I've always known what dehumanization
 6  means, Mr. Allen.
 7       Q     Did you equivocate about the meaning of
 8  that word with the journalist at this time?
 9       A     No.
10       Q     And you basically said you weren't going
11  to read the Journal of Schenkerian Studies symposium
12  in 2020; right?
13       A     Correct.
14       Q     So that would suggest that had they
15  reached out to you personally, you wouldn't have
16  participated; right?
17       A     No.  Because that's kind of -- you are
18  conflating, like, the timeline here.
19             Had they reached out to me in a -- in a
20  expedient fashion before publication of this journal
21  issue, I most likely would have been very interested
22  in being part of a colloquy because I believe in
23  collegiality and -- and respect among colleagues.
24             To post factum, after the journal comes
25  out, to try to engage me in a response of sorts,
0176
 1  that is -- I'm uninterested in.
 2       Q     And yet you didn't raise that with Ellen
 3  Bakulina?
 4       A     I -- I already said that when I responded
 5  to Ellen Bakulina, I simply said -- she said, Do you
 6  have any questions about these responses?
 7             I said, No, I have no questions.  Have a
 8  nice day.
 9       Q     Did you raise the issue of not being
10  invited with the journalist?
11       A     No.  To my knowledge, no.
12       Q     If that was so important to you at the
13  time, why didn't you raise that with the journalist
14  when you were explaining your dehumanization?
15       A     You know, back in 2020 a lot of things
16  were happening so it wasn't like I was laser focused
17  on one thing.
18             This one little aspect of a lack of
19  industry -- industry standard following the -- the
20  rules of inviting people to whom you are responding.
21             So in a brief ten-minute phone call
22  probably with this journalist, no, I did not bring
23  that up.
24       Q     Did you bring up your other complaint
25  that there were articles that weren't peer reviewed,
0177
 1  to your knowledge?
 2       A     To my knowledge, no.  I don't think so.
 3       Q     How about the anonymous publication?
 4       A     I don't think so.  I don't think so.
 5       Q     You were aware that people published in
 6  the symposium who supported your point of view in
 7  your plenary talk of 2019; correct?
 8       A     Only in the sense that two of them had
 9  reached out to me to -- to let me know that they
10  were going to submit something and I -- I read it
11  before it was even approved for publication.
12             And those are the pieces by Richard
13  Beaudoin and Chris Seegal.
14       Q     Uh-huh.
15       A     And it was clear from what I wrote that
16  they were supportive of some of the points I was
17  making.
18       Q     Did that dehumanize you?
19       A     I don't think so, no.
20       Q     And was that in any way improper as an
21  academic professional?
22       A     No.
23       Q     Your full length article --
24                 (Whereupon, the court reporter
25                 requests clarification.)
0178
 1  BY MR. ALLEN:
 2       Q     Your full length article in Music Theory
 3  Online, I think you've said this before but if you
 4  could just remind us, when did that come out?
 5       A     I'm going to say June 2020.
 6       Q     So it came out right before the Journal
 7  of Schenkerian Studies published the symposium in
 8  July of 2020, to your knowledge?
 9       A     To be honest, I don't know which came out
10  first.
11       Q     Okay.  Do you have any reason to believe
12  that Timothy Jackson was solely responsible for not
13  inviting you to participate?
14       A     No, I have no reason to believe that.
15       Q     You were aware that more than one person
16  worked on the journal's editorial staff; correct?
17       A     Yes.
18       Q     Do you know of any reason that Timothy
19  Jackson alone should have been made responsible for
20  the whole editorial staff?
21       A     No.
22                  MR. ALLEN:  Now, I'm going to mark
23             for the record, the next exhibit is
24             Exhibit 6.  This will fit in the
25             category -- and I obviously don't want
0179
 1             you to read all of these -- we'll go to
 2             selective portions of it and I'll explain
 3             what this is --
 4                  THE WITNESS:  Uh-huh.
 5                  MR. ALLEN:  -- in a second.
 6                  I'm going to give this to you also,
 7             Richard.
 8                  I'm marking for the record
 9             Exhibit 6.
10                 (Whereupon, Plaintiff's Exhibit 6,
11                 Collection of Documents Submitted by
12                 Timothy Jackson to Ad Hoc Panel
13                 Convened at University of North
14                 Texas, was marked for
15                 identification.)
16  BY MR. ALLEN:
17       Q     Now, I'm going to direct your attention
18  to the cover page -- or the first page, I should
19  say.
20       A     Uh-huh.
21       Q     And I'm just going to represent to you --
22  because obviously this is not an e-mail to you --
23  this is a collection of documents which was
24  submitted by Timothy Jackson to the, quote, ad hoc
25  panel which was convened at the University of
0180
 1  North Texas to basically investigate Timothy Jackson
 2  and his role in the Journal of Schenkerian Studies?
 3                  MR. WALTON:  Mr. Allen, what --
 4                  MR. ALLEN:  Yes, Ben.
 5                  MR. WALTON:  What document did you
 6             end up labeling Exhibit 6 here?
 7                  MR. ALLEN:  Appreciate the
 8             clarification and I apologize.  This was
 9             011UNT2645.
10                  MR. WALTON:  Thank you.
11                  MR. ALLEN:  No, thank you, Ben.
12  BY MR. ALLEN:
13       Q     So you'll look at the bottom,
14  Professor Ewell.
15             Do you see there's a page marking
16  UNT02645?
17       A     -002645, yes.
18       Q     Correct.  I'm just going to tell you,
19  those are Bates numbers.
20       A     Uh-huh.
21       Q     These are numbers that attorneys assign
22  to documents produced in discovery.  It's a
23  continuous series throughout the record in this
24  case.
25       A     Uh-huh.
0181
 1       Q     I will be referring to them as basically
 2  equivalent of page numbers.
 3       A     Okay.
 4       Q     On the other hand, that's the sole
 5  alteration of this document by the attorneys.
 6       A     Okay.
 7       Q     It's a -- it's a document that was
 8  produced by the University of North Texas, thus the
 9  abbreviation "UNT."
10             So with that understood, I'm just going
11  to call your attention to various parts of this
12  record.
13             These were documents that were disclosed
14  to the ad hoc panel by Timothy Jackson to disclose
15  simply the internal workings of the journal that led
16  to the publication of the symposium?
17       A     Uh-huh.
18       Q     I'm not asking you to comment on whether
19  that's true, but I'm just going to ask you to assume
20  that for the record.  All right?
21             So can I direct your attention to
22  page UNT2663, please?
23             This is a copy of an e-mail dated
24  December 31st, 2019.
25             Did I read that correctly?
0182
 1       A     The second one, yeah.
 2       Q     Sorry, the one at the bottom of the page?
 3       A     Uh-huh.
 4       Q     Correct?
 5       A     Uh-huh.
 6       Q     And it seems to be from someone named Bob
 7  Kosovsky?
 8       A     Uh-huh.
 9       Q     The thing I want to ask you about is the
10  "to" line, SMT-announce@societymusictheory.org.
11             Do you recognize that e-mail?
12       A     Yes.
13       Q     Can you explain for the record what that
14  e-mail is?
15       A     It's a Listserv where music theorists
16  make announcements.
17       Q     And would you have received that e-mail?
18       A     Yes.
19       Q     And in fact I think you've testified you
20  did receive that e-mail?
21       A     Correct.
22       Q     And this has the caption in the first
23  line, "The Journal of Schenkerian Studies Volume 12
24  2019 Call for Papers."
25             Right?
0183
 1       A     Correct.
 2       Q     If I could ask you to just review that
 3  through the next page.
 4             And I was just going to ask if this is
 5  the call for papers that was sent out over the SMT
 6  Listserv, to the best of your knowledge?
 7       A     Yes, to the best of my knowledge.  Yeah.
 8       Q     So to the extent that you've testified
 9  today that you didn't receive an invitation to
10  participate in the Journal of Schenkerian Studies
11  Volume 12, it's not because you weren't asked
12  through this Listserv; it's because you weren't
13  asked in the way that you would have preferred and
14  thought of as industry standards?
15       A     Well, when you say, "would have preferred
16  or thought of," I would go a step further and say in
17  22 years, I've never heard of a general Listserv
18  announcement making a call for papers tried to be
19  substituted for a specific invitation to a person
20  who -- whose work has been under scrutiny in
21  responses as my work was with the Journal of
22  Schenkerian Studies Volume 12.
23             In fact, I would go so far as to say is
24  that is so far outside of industry standards to --
25  to think that this somehow represents an invitation
0184
 1  to Philip Ewell, a direct invitation to
 2  Philip Ewell, that that is a very strange thing
 3  indeed.
 4       Q     Now, I never said that it was a --
 5  somehow a direct invitation to you, but you did
 6  receive it; right?
 7       A     I received it.
 8       Q     It's an invitation to participate;
 9  correct?
10       A     Not to me specifically.
11       Q     You specifically received it on a
12  Listserv that you subscribe to; correct?
13       A     Yeah, but thousands of people probably
14  received that.
15       Q     And you didn't respond to it, in fact;
16  right?
17       A     Along with -- along with other thousands
18  of people that didn't respond, yeah.  In fact, if I
19  could say, Listservs aren't meant to be responded
20  to.
21       Q     The statement that you never received an
22  invitation to participate in the Journal of
23  Schenkerian Studies, which was made repeatedly at
24  this time, was false, however; correct?
25       A     No, I disagree.
0185
 1       Q     You disagree that this announcement was
 2  an invitation which you received to participate in
 3  the Journal of Schenkerian Studies?
 4       A     Not --
 5                  MR. PAINTER:  Could you clarify who
 6             the announcement came from?  Did this
 7             come from the Journal of Schenkerian
 8             Studies?
 9  BY MR. ALLEN:
10       Q     Do you see where it says, "forwarded
11  message from" on page -2663?
12             This is a question for you, Professor
13  Ewell.
14       A     Oh, I see.  Yes, I --
15       Q     Do you see the cc line, Levi Walls,
16  LeviWalls@MyUNT.edu?
17       A     Uh-huh.
18       Q     And it says, "Forwarded message from:
19  Levi Walls," the same e-mail, "LeviWalls@MyUNT.edu.
20             Correct?  Did I read that right?
21       A     Yes.
22       Q     Do you know who Levi Walls is?
23       A     He was one of the student editors, I
24  believe, of the journal issue.
25       Q     And do you know who Bob Kosovsky is?
0186
 1       A     I -- I know the name.  I think he's
 2  somebody at SMT.  He might have been a -- like an
 3  executive director of the Society for Music Theory,
 4  but I --
 5       Q     And do you --
 6       A     -- I don't think I've ever met him.
 7       Q     And do you have any reason to believe
 8  that this wasn't a message, the call for papers,
 9  forwarded to the SMT-announce list by Levi Walls?
10       A     I think it was such a message.
11       Q     Okay.  And you received it, which we've
12  already discussed?
13       A     Yes.
14       Q     And it is an invitation to participate in
15  the journal; correct?
16       A     Yes.
17       Q     It's just not the one that you wanted?
18       A     It's not the one that anybody who
19  actually -- whose work is under scrutiny would
20  expect.  It's just not what happens.  It never
21  happens that way.
22       Q     Did this call for papers dehumanize you?
23       A     I can't comment on that.
24       Q     Does that -- you can't comment on it
25  because it's not true or it is true and you don't
0187
 1  want to comment on it?
 2       A     Just because I -- it's a very difficult
 3  thing to think about.  I'd have to think about
 4  whether it dehumanized me.
 5             I -- I hesitate to say whether it
 6  dehumanized me.
 7             What I would prefer to say is that this
 8  is not the way colloquies or symposia happen in
 9  academia.
10       Q     Do you find anything objectionable --
11  objectionable about the call for papers itself?
12       A     Actually, if I remember, they just had
13  mis- -- mis- -- misquoted something I said, but it's
14  so -- it's so minimal that -- that I don't -- I
15  wouldn't really raise any objection.
16             Something here written is not exactly
17  what I said at that plenary session.  And that's
18  what happens of course when you take a plenary
19  session.
20       Q     I want to talk about the role of two
21  individuals at the University of North Texas:  One
22  is a defendant named Benjamin Graf and the other is
23  someone we've already discussed in -- a little bit
24  named Levi Walls.  Let me start with Mr. Graf.
25             Who is Benjamin Graf?
0188
 1       A     Ben Graf was the other student -- to my
 2  knowledge, to my recollection, the other student
 3  editor of the journal issue, Levi Walls and Ben
 4  Graf.
 5             I think that they were both mentioned in
 6  that ad hoc panel, which is when I found out, if --
 7  if I remember correctly, that they were in fact the
 8  student editors.
 9             And, of course, Timothy Jackson and
10  Stephen Slottow were also mentioned in that ad hoc
11  panel as the editorial advisors, I think, the
12  faculty, and the editors, the -- the two graduate
13  students, Levi Walls and Ben Graf.
14             And what else about Ben Graf?  He -- I
15  presumed that both students were graduate students
16  working with Schenkerian studies, potentially with
17  one of two faculty advisors.
18       Q     Uh-huh.
19       A     Excuse me.
20             That's my recollection of -- of Ben Graf.
21       Q     So did you know Ben Graf before this
22  episode in late 2020?
23       A     I do not think so, no.
24       Q     Were you aware that Benjamin Graf was on
25  faculty at University of North Texas at this time?
0189
 1       A     No, I thought he was a grad student.
 2       Q     And had you had any contact with him when
 3  he was the editor of the Journal of Schenkerian
 4  Studies?
 5       A     Somebody sent me -- after the issue came
 6  out, I think one of those two people, Levi Walls or
 7  Ben Graf, sent me a PDF of the journal issue because
 8  I had not been sent a copy --
 9       Q     Uh-huh.
10       A     -- physical or otherwise.
11             And I do remember, I think -- I think on
12  a Twitter direct message hearing from one or both of
13  them just kind of explaining, saying, I'm sorry this
14  happened.
15             Because it, you know, it had blown up, to
16  a large extent.
17             And -- and me replying, It's okay.
18             I mean, it's --
19       Q     Uh-huh.
20       A     These things happen, I guess, yeah.
21       Q     Do you remember the exact words that
22  either of them used?
23       A     No, I do not.
24       Q     Okay.  And I believe from your testimony
25  today you've deleted your Twitter account?
0190
 1       A     Yes.
 2       Q     So those are no longer retrievable?
 3       A     Not by me.
 4       Q     Now, I asked -- I asked you about
 5  Benjamin Graf.
 6             But let me ask the same question about
 7  Levi Walls, although I know you've answered some of
 8  that.
 9             What was your understanding of the role
10  in -- of Levi Walls in the journal in July of 2020?
11       A     I -- i thought he was a graduate student
12  editor of the Journal of Schenkerian Studies, as I
13  thought Ben Graf was, too.
14       Q     Have you met with Benjamin Graf since
15  that time?
16       A     I saw Ben Graf at the Pedagogy into
17  Practice conference that happened not too long ago.
18             And as far as I know, that's the first
19  time I've ever met him in person.  And we had lunch
20  with a big group of people.
21       Q     Did he talk about the Journal of
22  Schenkerian Studies with you at all at that lunch?
23       A     He did not.
24       Q     What did you talk about, if I may ask?
25       A     Music theory pedagogy.  There were six of
0191
 1  us at a table and we had a nice lunch.
 2             We talked about these issues -- I
 3  imagine -- I mean, I knew the name from the ad hoc
 4  panel and also he -- he -- he's still at University
 5  of North Texas, I think, Ben Graf.
 6             So -- but I think he knew that he, you
 7  know, wasn't to -- I -- I -- I presume that he was
 8  told by someone, Don't talk with people about this
 9  and with Philip Ewell either.
10             So that's not something I pried and I
11  wouldn't want to.
12       Q     Did he tell you that?
13       A     Oh, I can't recall.  I can't recall
14  whether we even mentioned the Journal of Schenkerian
15  Studies, to be honest.
16             But I do remember that there was no
17  substantive conversation.
18       Q     Okay.
19                  MR. ALLEN:  I'm going to mark for
20             the record Exhibit 7.
21                  COURT REPORTER:  One moment.
22                  If I could, sir.
23                  MR. ALLEN:  Uh-huh.
24                 (Whereupon, Plaintiff's Exhibit 7,
25                 Facebook Exchange, One-Page Document
0192
 1                 Dated July 25, 2020, was marked for
 2                 identification.)
 3                  COURT REPORTER:  Thank you.
 4  BY MR. ALLEN:
 5       Q     And while you are reviewing that, it's a
 6  one-page document which seems to be the printout of
 7  a Facebook exchange; is that correct?
 8       A     Uh-huh.  Uh-huh.
 9       Q     And it's dated July 25th, 2020.
10                  MR. ALLEN:  I'm going to inform the
11             people online here that it's marked in
12             your exhibit pack as 03UNT0441.
13                  And you'll see that Bates stamp in
14             the lower right-hand corner but it may
15             not be legible because it's printed black
16             on black.
17  BY MR. ALLEN:
18       Q     So is this a message you remember getting
19  via Facebook?
20       A     I certainly do now, yes.  Uh-huh.
21       Q     And that's your, I guess, avatar there,
22  the -- the charming fellow playing the cello?
23       A     Correct.  Yeah.
24       Q     And Benjamin Graf said to you, "At this
25  time, the JSS would likely welcome a response from
0193
 1  you."
 2             Right?
 3       A     Yes.
 4       Q     And JSS stands for Journal of Schenkerian
 5  Studies?
 6       A     Uh-huh.
 7       Q     Was that dehumanizing?
 8       A     No.
 9       Q     And then he says he felt -- or, "We felt
10  uneasy about the situation from the beginning."
11             Do you see where he says that in the next
12  sentence after --
13       A     Uh-huh.
14       Q     Did you have any discussion with him
15  about how he felt so-called uneasy from this
16  beginning?
17       A     No.
18       Q     He also claimed to get, quote,
19  significant pressure from the advisory board.
20             Do you see that?
21       A     I'd like to find it here.
22                  MR. PAINTER:  In the middle here.
23                  THE WITNESS:  Uh-huh.  Okay.
24       A     Uh-huh.  Yes.  Go.
25
0194
 1  BY MR. ALLEN:
 2       Q     Did he ever explain what he meant by
 3  that?
 4       A     No, not to my recollection, no.
 5       Q     If you skip down a few sentences, do you
 6  see the sentence that says, "I really enjoy
 7  reading"?
 8       A     Uh-huh.
 9       Q     It says -- he said to you here, "I really
10  enjoy reading your blog post and the JSS advisors
11  mentioned asking you about a response after your
12  planned visit to UNT."
13             Did I read that right?
14       A     Correct.
15       Q     Were you planning to visit the University
16  of North Texas around this time?
17       A     Not around this time.
18       Q     What is he referring to when he says,
19  "your planned visit"?
20       A     The planned visit was to have happened a
21  year roughly beyond this.  I think the fall -- if
22  this is 2020, this -- I think the fall of 2021,
23  perhaps, it was planned.
24       Q     The -- your visit, you mean?
25       A     Correct.
0195
 1       Q     Ah.
 2       A     And it was -- it was about Russian music
 3  theory, which is -- I'm a Russianist.  That's
 4  what --
 5       Q     Sure.  Sure.
 6       A     -- that's my field.
 7       Q     And did that visit take place?
 8       A     It did not.
 9       Q     Why is that?
10       A     I cancelled it.
11       Q     Why did you cancel it?
12       A     Because I didn't want to go down to the
13  University of North Texas.
14       Q     Why?
15       A     Because this was blowing up and I didn't
16  want to be part of it.
17       Q     It was specifically because of the
18  publication of the Journal of Schenkerian Studies
19  Volume 12?
20       A     Among other things happening around this,
21  yeah.
22       Q     So there was no opportunity for JSS
23  advisors to ask you about a response at that visit?
24       A     After the journal issue had come out, no.
25       Q     And your response here in the gray bubble
0196
 1  is, "Thanks, Ben.  I understand the difficult
 2  position you were in.  Yes, the next time we meet,
 3  I'd be happy to get a coffee.  Best, Phil."
 4             Right?
 5       A     Correct.
 6       Q     And it sounds like you actually did meet
 7  for dinner?
 8       A     Lunch, yeah.
 9       Q     Lunch?  Okay.
10       A     Uh-huh.
11       Q     What did you understand by the difficult
12  position that Benjamin Graf was in?
13       A     Well, graduate students -- and I thought
14  he was a graduate student -- I think he had been a
15  graduate student at the University of North Texas
16  right prior to this.
17             But even so, I thought he was a graduate
18  student, like Levi Walls, are under enormous
19  pressure if they are caught between the faculty
20  and -- and outward-facing scholarship, such as a
21  journal.
22             So it's very difficult to walk that line.
23  That's what I was referring to.
24       Q     And having met Benjamin Graf in person,
25  do you think of him as a weak person?
0197
 1       A     I don't know him well enough to comment
 2  on that.
 3       Q     Do you think of him as in any way an
 4  uncourageous person?
 5       A     Again, I -- I just don't know him well
 6  enough -- well enough to comment on that.
 7       Q     In your experience of meeting him in
 8  person, did you have any reason to believe that he
 9  was lacking in courage in any way?
10       A     It was one lunch with five other people
11  at the table.  I really can't comment on that.
12       Q     And you've already testified that you
13  thought he was a graduate student, not on faculty;
14  right?
15       A     Correct.
16       Q     The fact that he was on faculty, does
17  that change any of your testimony?
18       A     No.  Because there are, as you know,
19  many, many levels of faculty rank and levels of
20  vulnerability.
21             And I was presuming at the time, and I
22  think accurately, that he was a graduate student.
23             But if he were in fact faculty, I'm
24  pretty sure that he was not a tenured faculty,
25  because tenure is what actually gives you power at a
0198
 1  university.  So anyone who is not tenured walks a
 2  very fine line.
 3       Q     Do you know if Benjamin Graf benefited
 4  from editing the Journal of Schenkerian Studies in
 5  terms of advancing his career?
 6       A     I imagine that there's some small
 7  benefits, yeah, of -- of being listed as an editor
 8  of a journal, yeah.
 9       Q     He also says something here, you know, in
10  the middle of this post or exchange with you, "We
11  tried to distance ourselves from some of the content
12  of the responses as a result, but as you well know,
13  silence is complicity and I sincerely apologize for
14  that."
15             Did I read that correctly into the
16  record?
17       A     Yes.
18       Q     What did you understand by this phrase,
19  "silence is complicity"?
20       A     I imagine since I had only seen a few of
21  the postings like on -- like on Twitter about some
22  of the content, that someone could have been saying
23  something at some point about some of the commentary
24  that was getting some pushback that we shouldn't be
25  publishing X, Y, or Z; right?
0199
 1       Q     Uh-huh.
 2       A     And I presume that's what Ben is talking
 3  about when he says, "silence is complicity."
 4       Q     Was keeping silence about these
 5  supposedly improper methods for contacting you also
 6  complicity in the Journal of Schenkerian Studies?
 7       A     No.
 8       Q     So about this engagement that you, I
 9  guess, cancelled to visit the University of
10  North Texas, is that a -- is that standard
11  professional comportment to cancel an engagement
12  you've already made to visit another school and --
13       A     No.
14       Q     -- give a talk?
15       A     No.
16       Q     If I could refer you back to Exhibit
17  Number 6, that's the rather thick packet?
18       A     Uh-huh.
19                  THE WITNESS:  I'm sorry, Mr. Allen,
20             could I get a bathroom break?
21                  MR. ALLEN:  Oh, absolutely.
22                  THE WITNESS:  Yeah.
23                  MR. ALLEN:  And there's no question
24             on --
25                  THE WITNESS:  Uh-huh.
0200
 1                  MR. ALLEN:  -- so let's go off the
 2             record.
 3                  THE VIDEOGRAPHER:  We are going off
 4             the record.  The time is 2:41.
 5                 (Whereupon, there was a recess taken
 6                 from 2:41 p.m. to 2:48 p.m.)
 7                  THE VIDEOGRAPHER:  We are going back
 8             on the record.  The time is 2:48.
 9  BY MR. ALLEN:
10       Q     So, Professor Ewell, I'm going to ask you
11  some questions about things that are in the
12  contemporaneous documents of the journal only for
13  the purpose of asking what you know about things
14  that are said about either your talk or the
15  individual's relationships to you and things like
16  that.
17       A     Uh-huh.
18       Q     So I'm going to ask that you look at
19  2657, UNT2657?
20       A     Uh-huh.
21       Q     This is an e-mail by your colleague, the
22  defendant, Ellen Bak- -- Bakulina --
23       A     Uh-huh.
24       Q     -- on December 1st, 2019.
25             Do you see that?
0201
 1       A     Uh-huh.
 2       Q     And I just want to direct your attention
 3  to the first sentence.
 4             It says, "I just had a conversation with
 5  a colleague about the SMT plenary session of which
 6  Ewell's talk was a part and he told me that I should
 7  have known all along -- told me what I should have
 8  known all along because this was announced right
 9  before the presentations that the plenary talks will
10  be published in Music Theory Spectrum."
11             Did I read that correctly?
12       A     Yes.
13       Q     And is -- does that comport with your
14  memory of how that worked, that they were always
15  meant to be published in Spectrum from the get go?
16       A     No, I did actually -- I did not know that
17  back in 2019.
18       Q     So that, as you understood it, is not an
19  accurate statement?
20       A     Well, accurate for Ellen.  Let me reread
21  it, what -- what you just wrote [sic].
22             Not an accurate statement from me.  I
23  didn't know that it was going to be published in
24  Music Theory Spectrum in 2019.  I had never given a
25  plenary talk before November 2019.
0202
 1       Q     So if you skip down to -2657 at the
 2  bottom there --
 3       A     Uh-huh.
 4       Q     -- there's some sort of "from Ellen
 5  Bakulina"?
 6       A     Uh-huh.
 7       Q     Then it goes forward.
 8             It says, "Dear Ellen, hyphen" -- or,
 9  excuse me -- "comma, colleagues, comma."
10             And that appears to be an e-mail signed
11  by Timothy Jackson.
12             Do you see that one that spills over to
13  the next page, UNT02658?
14       A     To Levi Walls, to Timothy Jackson,
15  Benjamin Graf, Stephen Slottow, Diego Cubero, and
16  it's from Timothy Jackson?
17       Q     Well, it's -- it's not entirely clear
18  here, but if you see at the bottom, it says, "Best,
19  Tim," at the bottom of the e-mail?
20       A     Of the next page, yeah.
21       Q     Yes.
22       A     Okay.  Yeah.
23       Q     So this message, "All things considered,
24  JSS" --
25       A     Uh-huh.
0203
 1       Q     -- "should go forward with the call as
 2  planned"?
 3             Right?
 4       A     Okay.
 5       Q     Now, if we -- if we look up to the
 6  previous e-mail which we were just talking about,
 7  Ellen Bakulina says in her last sentence, "Does the
 8  prospective Spectrum publication means that" -- I
 9  guess that's a typo -- "means that perhaps we should
10  wait with our call for responses until after that
11  publication appears."
12             Did I read that right?
13       A     Yes.
14       Q     So they are addressing that within the
15  journal?
16       A     Uh-huh.
17       Q     Timothy writes this next e-mail, "The JSS
18  should go forward with the call as planned"?
19       A     Uh-huh.
20       Q     Right?
21             And then do you see right under that,
22  Benjamin Graf on December 2nd, 2019, in the morning,
23  9:14 a.m. --
24       A     Uh-huh.
25       Q     -- writes, "I agree with Tim"?
0204
 1       A     Uh-huh.
 2       Q     Right?
 3       A     Uh-huh.
 4       Q     Did Benjamin Graf ever discuss with you
 5  agreeing that the call should go forward?
 6       A     No.
 7       Q     Is that consistent in your view with him
 8  being pressured?
 9       A     No, not pressured.
10       Q     Does it look like he's opposing the
11  publication --
12       A     No.
13       Q     -- of some special symposium?
14       A     No.
15       Q     And, again, these were records disclosed
16  to the so-called ad hoc panel.
17       A     Uh-huh.
18       Q     That's why I'm presenting it to you.  All
19  right.
20             Do you remember in July 27, 2020 an
21  apology posted by Levi Walls on Facebook?
22       A     I -- I'm -- I wouldn't deny it existed.
23  I don't recall it.
24       Q     Let me ask it this way:  Do you have no
25  memory of it now as you sit here today because you
0205
 1  think you didn't read it?
 2       A     I -- if it were posted as a general
 3  Facebook post, it's entirely possible I did not read
 4  it.
 5             If it were a direct message to me which I
 6  would have found because I did -- I digged -- dug --
 7  I dug -- digged -- I dug in my Facebook direct
 8  messages --
 9       Q     Yes.
10       A     -- and I would have found it, I presume.
11  So the -- I rarely read Facebook posts.
12       Q     Okay.
13       A     Although back then I was reading them
14  slightly more often than I -- certainly than I do
15  now.
16       Q     Yes.
17                  MR. ALLEN:  I'm going to mark for
18             the record -- record as Exhibit 8 a
19             Facebook post by Levi Walls.
20                 (Whereupon, Plaintiff's Exhibit 8,
21                 Facebook Post by Levi Walls, was
22                 marked for identification.)
23  BY MR. ALLEN:
24       Q     And I just have one question, given your
25  previous answers to my questions.
0206
 1             I just want you to look at this, maybe
 2  briefly, and tell me if you remember reading this at
 3  the time?
 4       A     Sure.
 5                  MR. WALTON:  Which document is this,
 6             Mr. Allen?
 7                  MR. ALLEN:  Thank you.  I was going
 8             to just say that.
 9                  This is also marked 08 Jackson 0234.
10                  MR. WALTON:  Thanks.
11                  THE WITNESS:  Okay.
12  BY MR. ALLEN:
13       Q     So just, again, did you ever read this at
14  the time?
15       A     I think I did.
16       Q     And in that case, you knew at that time,
17  this date being dated July 27th, 2020; correct?
18       A     Uh-huh.  Yeah.
19       Q     -- that Levi Walls, who you formerly
20  testified you knew, was a graduate student working
21  on the journal --
22       A     Uh-huh.
23       Q     -- was claiming to have no control over
24  the content of the journal; right?
25       A     That's what it says here, yeah.  I kind
0207
 1  of skimmed through it, yes.
 2       Q     If you skip down to Jackson -235, that's
 3  the second page of this Exhibit Number 8?
 4       A     Uh-huh.
 5       Q     There's a second sentence that begins on
 6  the page, "However, after Philip Ewell's SMT
 7  presentation, Timothy Jackson decided that it was
 8  the responsibility of the journal to 'protect
 9  Schenkerian analysis.'"
10             Then he says, "Although, after serious
11  thought, I essentially agreed with Ewell's talk, it
12  was not up to me what did or did not go into the
13  journal."
14             Did I read that correctly?
15       A     Yes.
16       Q     Is that your understanding at the time of
17  what had happened inside the journal?
18       A     Among other things.
19       Q     Okay.  Well, and I just want to focus on
20  this thing for now.
21       A     Uh-huh.
22       Q     So now if I could get you to go back to
23  Exhibit 6, that's the big packet?
24       A     Uh-huh.
25       Q     And go to UNT2705.
0208
 1             There's an e-mail at the bottom of that
 2  page that says, "Walls, Levi," it gives his e-mail.
 3  And it says, "to me," meaning to Timothy Jackson.
 4             Do you see that?
 5       A     Uh-huh.
 6       Q     Could I ask you to review that e-mail?
 7       A     Uh-huh.
 8             This is -2705, Bates number?
 9       Q     UNT02705?
10       A     Uh-huh.
11       Q     An e-mail beginning on the bottom of that
12  page dated November 15th, 2019?
13       A     Uh-huh.
14             Okay.
15       Q     So this e-mail says in the second
16  sentence that begins in that e-mail addressing
17  Timothy Jackson, "You've likely heard about it" --
18  referring to a particular Schenker paper from SMT --
19  "as it caused quite a stir.  I was very ambivalent
20  about it because it suggested that analysis that
21  utilizes levels of hierarchy is inherently racist
22  which strikes me as naive."
23             Did I read that correctly?
24       A     Yes.
25       Q     Do you understand this to be referring to
0209
 1  your paper at the SMT?
 2       A     I think so.
 3       Q     Does that sound like someone who agreed
 4  with your paper?
 5       A     Agreed but misunderstood.  "Inherently
 6  racist" is not something I would say, but yeah.
 7       Q     So does that seem to suggest that he was
 8  lying in his Facebook post on July 27th, 2020?
 9       A     No, because this is November 2019, after
10  my talk -- a week after my talk.  And the 2020
11  Facebook that you just referenced was after the
12  publication of the Journal of Schenkerian Studies.
13             And apparently, Levi Walls had worked on
14  that so had been kind of deeply involved in it.  So
15  clearly he changed some opinions.
16       Q     Don't you think he changed his opinions
17  because the journal was attacked by almost every
18  single academic in the SMT?
19       A     I disagree.  I don't think every single
20  academic attacked the journal.
21             So that's -- that's -- to answer your
22  question -- can you state the question again?
23       Q     You don't think that Levi Walls was
24  posting an apologia on Facebook because the journal
25  was being attacked as racist?
0210
 1       A     No.
 2       Q     You don't think Levi Walls was
 3  misrepresenting his actual true feelings about your
 4  work because the entire Society for Music Theory had
 5  published an open letter condemning the Journal of
 6  Schenkerian Studies?
 7       A     You say "entire Society for Music Theory"
 8  and it wasn't.  It was 900 signatories.  So they
 9  don't speak for absolutely 100 percent of the
10  membership, obviously.
11             And I don't believe that Levi Walls was
12  misrepresenting his beliefs.  I believe that they
13  had changed, just from the two documents you showed
14  me.
15       Q     He never said he changed his beliefs, did
16  he?
17       A     Well, something changed, did they -- did
18  they not -- did it not?
19       Q     Yeah, the thing that changed was the
20  Journal of Schenkerian Studies came under attack;
21  right?
22                  MR. PAINTER:  Do you have a
23             question?
24       A     Yeah, is there a question there?
25
0211
 1  BY MR. ALLEN:
 2       Q     Did you understand my question?
 3                  MR. ALLEN:  Could you read back the
 4             question to the witness?
 5                 (Whereupon, the referred-to text was
 6                 read back by the court reporter.)
 7  BY MR. ALLEN:
 8       Q     Is that question unclear to you?
 9       A     No, it's not unclear.  It's just a
10  question of whether I agree with it or not.
11             The Journal of Schenkerian Studies came
12  under attack -- okay.  Fair.  I'll go ahead and say
13  yes.
14       Q     Thank you.
15             Could I direct your attention to
16  UNT02707?  That's the -- the next -- I want -- I
17  know this is causing you to jump around.
18       A     Uh-huh.
19       Q     But, again, these were documents provided
20  to the so-called ad hoc panel convened to --
21       A     Uh-huh.
22       Q     -- investigate my client.
23       A     Uh-huh.
24       Q     Do you see an e-mail at the bottom of
25  that page from Monday, November 18th, 2019?
0212
 1       A     Yes.
 2       Q     And, again, this would have been within
 3  plus or minus a week of your talk; right?
 4       A     A week, two weeks, yeah.
 5       Q     Okay.  And again it's by Levi Walls?
 6       A     Uh-huh.
 7       Q     Okay.
 8       A     After -- after the talk.  Let's not --
 9  not plus or minus.  It's after, plus.
10       Q     Correct.
11             Levi Walls writes to Dr. Jackson.
12             Did I characterize that correctly?
13       A     It just says to me.
14       Q     Do you see it says, "Dear Dr. Jackson"?
15       A     Correct.  Okay.  Yes.
16       Q     And it says at the end, "Regards, Levi"?
17       A     Yes.
18       Q     And then he goes on in the second
19  paragraph that begins in this e-mail, "Yes, the
20  paper's willful ignorance of Schenker's Jewish
21  identity is indeed troubling.  That seems to mark it
22  as implicitly antisemitic at the very least.  I
23  think that had he limited his criticisms to
24  Schenker, the man, it would have been slightly less
25  problematic.  But his claim that the entire
0213
 1  theoretical world view and, by extension, those who
 2  help spread it, is racist becomes very problematic
 3  when we consider the intimate connection between
 4  Schenkerian analysis and the Jewish identity."
 5             And then he ends that paragraph, "Ewell's
 6  talk certainly failed in that regard."
 7             Do you see that?
 8       A     Uh-huh.
 9       Q     So, again, is this consistent with a
10  graduate student who agrees with your talk?
11       A     In November of 2019, it is.
12       Q     You think this indicates his agreement
13  with your talk?
14       A     Oh no.  No.  No.  No.  I think that this
15  does not in- -- indicate agreement.
16       Q     Okay.
17       A     I think that he had some qualms about my
18  talk in November of 2019.
19             I also would just point out the
20  misreading that the entire theoretical world view is
21  racist.
22             It's a common misquotation attributed to
23  me.  I've seen it many times.  But it's not true.
24  I've never said that.
25             And -- it -- I would love to see somebody
0214
 1  actually point to where I wrote that because they
 2  would be looking for a very long time.
 3       Q     Have you ever sought out Mr. Walls to
 4  discuss your work?
 5       A     No.
 6       Q     Has he ever sought out you to discuss
 7  your work?
 8       A     Again, a direct message?
 9             There were a lot of -- a lot of
10  communications going back and forth.
11             I don't remember seeing -- I mean, in my
12  Facebook direct messages, I searched.
13       Q     Uh-huh.
14       A     And that was a search term.  So I -- did
15  I have something in my Facebook direct messages?
16             I mean, you -- you looked at it.  I -- I
17  can't recall.
18             And it's possible that if it's not there,
19  that it -- there was a Twitter direct message.
20  Probably it would have happened in one of those two
21  places if I had any contact with Levi Walls.
22       Q     And so to sum up, you don't recall that
23  ever happening?
24       A     Correct.
25       Q     Okay.  Let me ask you to jump to --
0215
 1       A     May I -- may I -- may I --
 2       Q     Please.
 3       A     -- qualify?
 4             I gave a talk -- a remote talk in Florida
 5  and -- and Levi Walls was also giving a talk at some
 6  point.
 7             And I recall, I -- it must have been from
 8  my Hunter e-mail because virtually all of these
 9  communications were professional and from my Hunter
10  e-mail.
11             I recall writing Levi Walls just saying,
12  I see you are giving a talk in Florida.
13       Q     Uh-huh.
14       A     I look forward to listening to it.
15             I don't think I was actually able to
16  attend his --
17       Q     Uh-huh.
18       A     -- his virtual talk.
19       Q     Uh-huh.
20       A     And I also don't know whether he attended
21  my virtual talk because it -- it wasn't one -- I
22  don't think it was one where all the Zoom windows
23  were available.
24       Q     Right.
25       A     Even if it was, as a -- as a keynote
0216
 1  speaker I don't pay attention --
 2       Q     Of course.
 3       A     -- to the -- the Zoom gallery.
 4             But I just want -- since we are talking
 5  about Levi Walls, I did have -- I think I instigated
 6  an e-mail saying, I see you're giving a talk.  I
 7  look forward to hearing your talk.
 8             And that's what it was.
 9       Q     There was no more substantive discussion
10  between you about that?
11       A     About -- that's correct.
12       Q     Okay.  Could I ask you to skip to
13  UNT02708?
14             There's an e-mail here from Timothy
15  Jackson to Mr. Levi Walls dated November 19th, 2019?
16       A     Uh-huh.
17       Q     And it appears to be from Timothy
18  Jackson?
19             He says, "Dear Levi, It occurred to me
20  that it might be appropriate for the journal to
21  solicit responsible -- responses to Ewell from a
22  number of prominent Schenkerians."
23             Did I --
24       A     Correct.
25       Q     -- read that --
0217
 1             Now, it's relatively long and I don't
 2  want to spend that time on it.
 3             But if we skip down to the next page,
 4  there's a response from Levi Walls; right?
 5             And this is November 19th, 2019 at
 6  3:16 p.m.?
 7       A     Yes.
 8       Q     And he writes, "Dear Dr. Jackson, I agree
 9  that a response in the JSS would be very
10  appropriate.  It would be nice to have it for the
11  upcoming issue, although it is very forthcoming
12  around mid-December.  A response in Issue 13 would
13  of course be quite late.  Did you have any
14  particular Schenkerians in mind?  Dr. Graf and I can
15  discuss some candidates tomorrow at our weekly
16  meeting and get requests out as early as tomorrow
17  evening."
18             Did I read that right?
19       A     Yes.
20       Q     Does that sound like someone who has no
21  control over the content of the journal?
22       A     No.
23       Q     One of Levi Walls' claims was that he was
24  instructed by Timothy Jackson, something like, to --
25  to censor people who were in favor of your paper.
0218
 1             Do you recall anything to that effect?
 2       A     No.
 3       Q     Let me direct your attention to UNT02758.
 4  This time we'll be looking to the top of the page.
 5             But before I ask you a question about
 6  this communication internal to the journal, I want
 7  to ask if you remember in the UNT so-called ad hoc
 8  panel report --
 9       A     Uh-huh.
10       Q     -- a kind of very graphic description of
11  Mr. Walls being forced into Timothy Jackson's car
12  and coerced to basically publish something he didn't
13  want to publish?
14       A     I do remember something about a car,
15  yeah.
16       Q     Okay.  But you don't remember that in
17  detail?
18       A     No, I don't.
19       Q     Right?  Its connection to censorship?
20       A     I do not, no.
21       Q     Okay.  So if we look at the top of
22  page -- sorry, UNT2758, do you see how that e-mail
23  is signed by Levi Walls?
24       A     Uh-huh.
25       Q     And if we look at the very bottom of the
0219
 1  previous page, it states from February 13th,
 2  10:54 a.m.?
 3       A     Very bottom --
 4       Q     Of the -- of the page -02757?
 5       A     Two seven --
 6       Q     I'm sorry to jump around but the e-mail
 7  spills over --
 8       A     Uh-huh.
 9       Q     -- from one page to the next --
10       A     Okay.
11       Q     -- in an inconvenient way.
12       A     Yeah.  Could you say what you just said
13  again?
14       Q     So the e-mail is from Levi Walls; right?
15       A     Uh-huh.
16       Q     It's dated February 13th?
17       A     10:54 a.m.
18       Q     Yes.
19       A     Uh-huh.
20       Q     It says, "To me" -- meaning Timothy
21  Jackson -- "and Benjamin Graf."
22             Did I read that right?
23       A     Correct.
24       Q     He writes, "Dear Dr. Jackson," he copies
25  some other people who are working on the journal?
0220
 1       A     Uh-huh.
 2       Q     But not Dr. Slottow?
 3       A     Uh-huh.
 4       Q     He says, "Dr. Graf and I were wondering
 5  what your thoughts were concerning the submission
 6  from Clark Beaudoin" --
 7       A     Beaudoin.
 8       Q     Beaudoin.
 9       A     Uh-huh.
10       Q     Thank you.
11             -- "and Lett.  As you may have seen,
12  these responses are, at least implicitly,
13  anti-Schenkerian.  Despite disagreeing with much of
14  what they have to say, Dr. Graf and I think it is
15  important to publish these responses."
16             Did I read that right?
17       A     Yes.
18       Q     So it sounds like he was in favor of
19  publishing responses that were favorable to you;
20  right?
21       A     Correct.
22       Q     Do you know if those three responses were
23  in fact published?
24       A     They -- so Beaudoin, Lett, and Clark,
25  yes.  We're talking about Suzannah Clark, Harvard
0221
 1  University; Richard Beaudoin, Dartmouth College --
 2       Q     Uh-huh.
 3       A     -- Stephen Lett, who is no longer, I
 4  think, in the field.
 5       Q     Is that consistent with someone who is
 6  being pressured not to publish these pro-Ewell
 7  papers?
 8       A     Again, I would take issue with the
 9  conflation of this timeline.
10       Q     Uh-huh.
11       A     Because we started with Levi Walls in
12  July --
13       Q     Uh-huh.
14       A     -- after the publication of Volume 12,
15  and you've gone back to November.
16       Q     Correct.
17       A     Now we are in February; right?
18             So I think that it's quite reasonable to
19  presume that once all of the journal responses were
20  collated into an issue, it seems that Levi Walls
21  read it and then began to take issue with some of
22  the points that were being raised there and so
23  essentially -- well, as I said, changing his
24  opinion.
25             Which, over the course of eight months,
0222
 1  is not so unreasonable, I think.
 2       Q     Isn't the simpler explanation that at the
 3  moment it appeared there was a massive social media
 4  attack on the journal and they, quote, changed their
 5  mind?
 6                  MR. PAINTER:  Asks for speculation.
 7  BY MR. ALLEN:
 8       Q     That's all right.  You can answer.
 9                  THE WITNESS:  Do I have to?
10                  MR. PAINTER:  You should give some
11             answer, whatever answer you think
12             is the --
13                  THE WITNESS:  Okay.
14       A     Can you repeat the question, please?
15  BY MR. ALLEN:
16       Q     Isn't the simplest explanation that they
17  were attacked on social media and by the SMT and by
18  everyone claiming the journal was racist and they,
19  quote, changed their mind then?
20       A     No.
21       Q     You don't find that plausible at all, do
22  you?
23       A     I wouldn't say plausible at all.  I would
24  say that's not the actual issue, though.
25       Q     Somehow they are saying at the time the
0223
 1  journal articles are being gathered and published,
 2  they -- Levi Walls disagrees with your work?
 3       A     Uh-huh.
 4       Q     They want to solicit these papers, they
 5  want to solicit others.
 6             And then all of a sudden, they change
 7  their mind after the journal comes out?
 8       A     I think it's probably a little bit of
 9  both, don't you?
10       Q     Well, I'm not the one testifying.
11       A     That's true.  I apologize.
12             I think it's entirely reasonable,
13  however, to think that two things can be true at
14  once.
15       Q     Do you know that after the attack on the
16  journal, Levi Walls openly expressed his fear for
17  his career?
18       A     I do not know that.
19       Q     Just one last example here.  If you could
20  skip to UNT02697?
21       A     Six, nine -- six, nine, seven.  I'm in
22  the sevens...
23       Q     -2697?
24       A     -2697, yes.
25       Q     And this is an e-mail from Benjamin Graf
0224
 1  to JSS authors and advisory board; do you see that?
 2       A     Yeah, start- --
 3       Q     Oh, sorry, I should say, the bottom of
 4  the page?
 5       A     Uh-huh.  Yeah.
 6       Q     March 14th, 2020?
 7       A     Uh-huh.
 8       Q     And I'm just going to represent to you
 9  this was the time when the special volume -- the
10  special symposium and the entire Volume 12 went to
11  the press.
12       A     Okay.
13       Q     So it was finished in its editorial phase
14  and it was just going into production.
15       A     Uh-huh.
16       Q     Just going to skip down past the numeral
17  three on that bottom of that page; do you see that?
18       A     Uh-huh.
19       Q     "Levi Walls has done excellent work on
20  this volume and the journal will be in good hands as
21  he takes over sole editorship of the JSS.  In my
22  view, the additional content that we collected this
23  winter following Ewell's SMT plenary makes a great
24  addition to an already remarkable publication."
25             Did I read that correctly?
0225
 1       A     Yes.
 2       Q     Is that consistent with Benjamin Graf
 3  telling you in his Facebook message to you that, I
 4  don't know, he was complicit in some sort of
 5  silence?
 6       A     Huh.
 7       Q     Or he didn't want to do it or --
 8       A     No.
 9       Q     Okay.  He says, "Cheers getting this to
10  press."
11             Right?
12       A     Uh-huh.  Yes.
13       Q     Then on March 20, there's another message
14  from Ben Graf to Barry Wiener, maybe pronounced it
15  Wiener.
16             You would know?
17       A     I don't know.
18       Q     You don't know.
19             Was Barry Wiener critical of you or in
20  favor of you?
21       A     Critical.
22       Q     Ben Graf writes to a critical respondent,
23  I suppose we'll call him, "Thank you, Barry.  I
24  should note that I enjoyed reading your response to
25  Ewell."
0226
 1             Did I read that correctly?
 2       A     Yes.
 3       Q     Do you have any reason to believe that
 4  Benjamin Graf would lie about that?
 5       A     No.
 6                  MR. ALLEN:  I think I have one last
 7             document to present to you and I think we
 8             will probably be able to wrap this up.
 9                  I can't promise that Benjamin Walton
10             won't have some questions for you.
11                  THE WITNESS:  Sure.
12                  MR. ALLEN:  But let me move on.
13                  I'm going to -- we're done talking
14             about Mr. Walls and Mr. Graf.
15                  I want to ask you some additional
16             questions about your colleague, Ellen
17             Bakulina.
18                  THE WITNESS:  Bakulina.
19                  MR. ALLEN:  So if I could mark this
20             for the record.  We are introducing here
21             Exhibit Number 9.  This is marked in the
22             exhibit folder 06 UNT2559.
23                 (Whereupon, Plaintiff's Exhibit 9,
24                 Document Presented to Ad Hoc Review
25                 Panel, was marked for
0227
 1                 identification.)
 2                  MR. ALLEN:  Sorry.
 3  BY MR. ALLEN:
 4       Q     Now, before you look at this, again, I'm
 5  not suggesting that you know anything about this
 6  document.
 7             It's because some things are represented
 8  about you in the document that I want to ask you
 9  questions about it.
10       A     Sure.
11       Q     This is also a document that was
12  presented to the so-called ad hoc journal review
13  panel that UNT convened to investigate solely
14  Timothy Jackson for the supposed whatever they
15  thought the journal of Schenkerian studies did
16  wrong, I suppose.
17             And you can see that in the header; do
18  you see that in the first message?
19       A     "Talk with UNT ad hoc journal review
20  panel"?
21       Q     Yes?
22       A     Yes.
23       Q     And that's Ellen Bakulina --
24       A     Uh-huh.
25       Q     -- and her e-mail at UNT?
0228
 1       A     Correct.
 2       Q     And I understand she's no longer there.
 3             So if you skip down a few pages, you'll
 4  see that there's an attachment that says, "Dear Dean
 5  Richmond"?
 6       A     Uh-huh.  "Dear Dr. Richmond," yeah.
 7       Q     Uh-huh.  And you'll see -- I just want
 8  to -- you see how there's a subheading A, close
 9  paren?
10       A     Uh-huh.
11       Q     I guess it's the third paragraph.
12       A     Uh-huh.
13       Q     She gives a little bit of a history of
14  her participation in the journal?
15       A     Uh-huh.
16       Q     And then she also says -- I'm just going
17  to begin with the sentence, "The e-mails were an
18  exchange."
19             Do you see that?
20       A     One second.
21       Q     Third sentence?
22       A     Yes.  Go.
23       Q     "The e-mails were an exchange of opinions
24  on Ewell's keynote talk.  They led to another string
25  of e-mails which were directly related to the call
0229
 1  for responses.  The string was initiated by Levi
 2  Walls whose initial e-mail, November 25th, 2019, was
 3  sent to several theory faculty, included some that
 4  are not on the JSS editorial board.  The second
 5  e-mail exchange led to the formulation of the call.
 6  I discussed the formulation with the editors but
 7  didn't make any substantive suggestions."
 8       A     You said "editors" when it said "others,"
 9  but aside from that, yes.
10       Q     I apologize for misspeaking and thanks
11  for catching that.
12       A     Uh-huh.
13       Q     Now, did Ellen Bakulina ever talk to you
14  about her role on the journal?
15       A     No.
16       Q     So you don't know whether she's
17  representing this accurately or not?
18       A     Correct.
19       Q     If you could skip down to UNT02560.
20             And this is one of the infelicities of
21  electronic documents.
22       A     Uh-huh.
23       Q     But do you see there's a page number
24  smack in the middle of the page number three?
25       A     Uh-huh.
0230
 1       Q     I want you to look at the paragraph right
 2  before that?
 3       A     "In retrospect"?
 4       Q     Correct.
 5       A     Uh-huh.
 6       Q     This is Ellen Bakulina in a letter to her
 7  dean, who is Dean Richmond.
 8             "In retrospect, I regret that I did not
 9  contact Ewell to ask if he would like to write a
10  response to the responses or to simply inform him
11  about what is happening in JSS.  A lack of such
12  timely contact with Ewell on part -- on the part of
13  JSS editorship is part of what is currently being
14  condemned on social media.  In fact, I did think of
15  contacting him in December 2019, partly because he
16  is a long-time friend and a former mentor of mine."
17             Did I read that correctly?
18       A     Yes.
19       Q     Now, you've testified today that she did
20  contact you in around that timeframe; right?
21       A     Yes.  I would say it was probably
22  February 2020.
23       Q     But at that time she expressed no concern
24  that you hadn't been personally invited?
25       A     The only thing that was stated in her
0231
 1  e-mail was -- it was maybe one sentence and it
 2  was -- the title of the -- the subject title was
 3  "JSS responses."
 4       Q     Uh-huh.
 5       A     And it was of the order, "Dear Phil, Do
 6  you have any questions about" --
 7       Q     Uh-huh.
 8       A     -- "these JSS responses," because the
 9  call for papers had gone out.
10             So I was aware at that point that --
11       Q     Uh-huh.
12       A     -- that this was being put together.
13             And as I said earlier, I responded, No, I
14  have no questions.
15       Q     And she doesn't say anything about that
16  here, does she?
17       A     She does not.
18       Q     Do you know of any reason that she lacked
19  the power to invite you personally?
20       A     I presume I -- I presume that she was not
21  part of the backbone of the Journal of Schenkerian
22  Studies.
23             As it -- as it was shown in the ad hoc
24  report, Steven Slottow and Timothy Jackson were the
25  editorial advisors.
0232
 1       Q     Uh-huh.
 2       A     And to be honest, I didn't know if Ellen
 3  Bakulina, who is a Russianist --
 4       Q     Uh-huh.
 5       A     -- like me, whether she was involved with
 6  journal at all in any capacity, whatsoever.  And --
 7       Q     If she --
 8       A     If I may.
 9       Q     Please.
10       A     And therefore it didn't even strike me
11  to -- to wait for an invitation from Ellen Bakulina
12  because I just didn't think she was involved with
13  the production of this journal.
14       Q     Right.  And does this message to the dean
15  of her school of music clarify that she was indeed
16  involved in the production of the journal, at least
17  in the fall and winter of 2020?
18       A     Well, what you've read confirms that she
19  regrets that she did not contact me.
20             It doesn't really clarify what role she
21  played, if any, in the journal's structure.  And she
22  may have had a role, maybe on the editorial board.
23  I don't know.
24       Q     And also, I believe I misspoke.  I meant
25  fall and winter of 2019, not fall and winter of
0233
 1  2020.  That was when --
 2       A     Uh-huh.  Nineteen going into '20.
 3       Q     Yes.
 4             Do you -- this is true that -- what she
 5  says here that you were long-time friends and she
 6  was a former mentee of yours; right?
 7       A     Yeah, I -- I mentioned that she -- that I
 8  was on her dissertation committee --
 9       Q     Uh-huh.
10       A     -- when she was at the graduate center,
11  yes.
12       Q     Are you still in regular contact with
13  her?
14       A     Regular, no.  I haven't heard from her in
15  a while.
16       Q     Okay.
17       A     If I could try to say when, it would
18  be -- it actually was some -- let's call it, five,
19  six months ago because she's working on a project --
20  this is irrespective of the Journal of Schenkerian
21  Studies or the University of North Texas -- Thomas
22  Christensen, Carmel Raz, and one other person are
23  putting together this big, thick, multi-volume work
24  on music theory.
25             And Ellen is kind of spearheading some of
0234
 1  the Russian music theory aspects.  And she and
 2  Thomas Christensen, a music theorist -- music
 3  theorist at the University of Chicago, invited me to
 4  write a section on -- on the music theorist Modest
 5  Rezvoi, who was a Russian music theorist who in
 6  198 -- sorry, 1830 translated some very significant
 7  terms.
 8       Q     And can I just interrupt you to say that
 9  she's involved in a very significant work of
10  scholarship?
11       A     Yes.
12       Q     Do you know her to be an especially
13  fragile individual?
14       A     I -- I can say with a little bit more
15  certainty than -- because you asked the same
16  questions of Ben Graf, I think.
17             She -- could you clarify "fragile
18  individual," in what respect?
19       Q     Well, do you know that she is afraid to
20  speak her mind?
21       A     Yeah.  Yeah.  Occasionally, yes.
22       Q     And do you think she's particularly
23  cowardly?
24       A     I wouldn't use the word "cowardly," but I
25  also wouldn't say "forceful" and -- and "ambitious"
0235
 1  and I wouldn't say the opposite of "cowardly"
 2  either.
 3       Q     Do you know of any reason she couldn't
 4  have spoken up and said you needed to be invited,
 5  for instance?
 6       A     I think probably because she was
 7  pre-tenure, if I'm not mistaken.  I think she was at
 8  this time.
 9       Q     Do you know that she was threatened with
10  a denial of tenure if she spoke up in some way?
11       A     No, I do not know that.
12       Q     And in fact, she did feel at least
13  comfortable enough to reach out to you?
14       A     Correct.
15       Q     But she didn't mention any of these three
16  concerns at the time that you said were hallmarks of
17  the improper publication of Volume 12?
18             And let me list them:  The anonymous
19  publication, right; the failure to invite you in
20  person; and I believe you said the failure to have
21  peer review of the article; right?
22       A     Uh-huh.  Yeah.
23             I didn't use the word "hallmarks," but
24  yes, you remembered the three points, correct.
25       Q     She didn't mention any of those things?
0236
 1       A     Correct.  She did not.
 2       Q     Do you know of any reason she couldn't
 3  have spoken up if she really did object to that at
 4  the time?
 5       A     Other than the fact that she's pre-tenure
 6  and pre-tenure people are in fact, as you know,
 7  vulnerable and often hesitant to speak up.
 8       Q     She wasn't hesitant to speak up when she
 9  condemned Timothy Jackson, was she?
10       A     I don't know how she condemned --
11  condemned Timothy Jackson.
12       Q     Do you know that the faculty circulated a
13  petition condemning -- condemning Timothy Jackson
14  after the publication in July 25, 2020?
15       A     I think I have a recollection of that.
16  I -- I can't specifically say.
17       Q     Her lack of tenure didn't prevent her
18  from signing onto that, did it?
19       A     And 900 people signed an anti-racist
20  letter to SMT, most of whom I would presume were
21  un-tenured also, so...
22       Q     So she had at least enough civil courage
23  to do that; right?
24       A     Civil courage?
25             Yeah, let's just say that she signed the
0237
 1  letter, yes, she did.
 2       Q     So just to close this off, the things
 3  that she's representing here to her dean and by
 4  extension, the so-called ad hoc panel investigating
 5  the journal and Timothy Jackson, you didn't discuss
 6  this with her?
 7       A     No.
 8       Q     And you haven't discussed it since?
 9       A     No.
10       Q     Okay.
11                  MR. ALLEN:  Can we go off the
12             record?
13                  THE VIDEOGRAPHER:  We are going off
14             the record.  The time is 3:28.
15                 (Whereupon, there was a recess taken
16                 from 3:28 p.m. to 3:32 p.m.)
17                 (Whereupon, Plaintiff's Exhibit 10,
18                 E-mail Exchange Between Philip Ewell
19                 and Rachel Gain, was marked for
20                 identification.)
21                  THE VIDEOGRAPHER:  We are going back
22             on the record.  The time is 3:32.
23  BY MR. ALLEN:
24       Q     Professor Ewell, I'm marking for the
25  purposes of the record Exhibit Number 10.
0238
 1             This is an e-mail exchange with what
 2  appears to be you and a defendant named Rachel Gain.
 3  It is Bates-stamped UNT1146.
 4             Do you recognize this document?
 5       A     Yes.
 6       Q     Do you remember sending this document?
 7       A     Yes.
 8       Q     Do you know who Rachel Gain is?
 9       A     She was a graduate student at UNT.  I
10  believe she's at Yale University now.
11       Q     Your alma mater?
12       A     My alma mater.  That's right.  Not --
13       Q     Have you had --
14       A     -- far from here.
15       Q     Have you had any further contact with
16  her?
17       A     I gave a talk at Yale -- two things:  The
18  same talk in Florida, the virtual talk I gave --
19       Q     Uh-huh.
20       A     -- was also attended, probably virtually,
21  by Rachel Gain.  And when I e-mailed -- I think I
22  may have e-mailed from my Hunter e-mail both Levi
23  Walls and Rachel Gain and -- essentially saying hi.
24             You know, I had had this e-mail -- this
25  Facebook exchange with Levi Walls -- Walls or Wall?
0239
 1       Q     Walls.
 2       A     With an "S"?
 3       Q     Yeah.
 4       A     Okay.  With -- yeah.
 5       Q     To interrupt you, just for the record,
 6  you were -- when you said, "this," you were
 7  referring to the exhibit --
 8       A     Exhibit 7.
 9       Q     Thank you.
10       A     Uh-huh.  And this note from -- in -- in
11  Exhibit 10 from Rachel Gain.  And I had sent an
12  e-mail essentially saying the same thing that I said
13  to Levi Walls, which is, I look forward to your
14  talks.  I'm giving a talk.  I hope to see you there.
15       Q     Uh-huh.
16       A     And then I gave an in-person talk at Yale
17  University fall of '22.
18       Q     Uh-huh.
19       A     It was whenever Rachel Gain moved.  She
20  was there at the talk.
21       Q     Uh-huh.
22       A     And along with maybe a hundred other
23  people and -- and I saw her.  It was the first time
24  I've ever physically met Rachel Gain.
25       Q     Did she discuss with you any of the
0240
 1  circumstances of the publication of Volume 12 of the
 2  JSS?
 3       A     No.
 4       Q     Did she discuss with you any of her
 5  criticisms of Timothy Jackson?
 6       A     No.
 7       Q     And this e-mail seems to have been
 8  initiated by her; correct?
 9       A     Correct.
10       Q     And she e-mails you on July 27th, 2020,
11  at 7:30 in the evening, an apology from the UNT
12  graduate students; right?
13       A     Correct.
14       Q     Do you know why she was claiming to speak
15  on behalf of the UNT graduate students?
16       A     I thought at the time -- I think that she
17  had some type of student counsel leaders position
18  where she -- I don't know if it's elected or
19  something, but, you know, there was a student body,
20  graduate student alliance.  You know, graduate
21  students have organizations among them.
22             And I think that she was contacting me
23  kind of on -- maybe it's even said here that -- the
24  graduate student --
25             Yeah, so that's my -- my recollection
0241
 1  is -- the MHTE graduate student body -- oh, and she
 2  was the vice president.  There it is.
 3             So I'm looking at the third page.
 4       Q     Yes.
 5       A     I don't want to do your job for you
 6  but --
 7       Q     No, go ahead.
 8       A     But yeah, on the third page the actual
 9  apology that they were writing was from the
10  president -- it seems there are two presidents and
11  then a vice president, Rachel Gain, of the MHTE
12  graduate student body.
13             I do not know what MHTE stands for.
14       Q     Just for the record, do you see where it
15  says "Division of Music History, Theory, and
16  Ethnomusicology" in the top of that letter?
17       A     In the -- I see actually in the top of
18  the email on the very first page that that's listed,
19  so that must be MHTE.
20       Q     Correct.
21       A     Uh-huh.
22       Q     All right.  So in this letter of apology
23  that I suppose these MHTE graduate students sent to
24  you, do they discuss anything about the three
25  objections that you had to the Journal of
0242
 1  Schenkerian Studies in Volume 12?
 2             Again, the anonymous publication, the
 3  failure to peer review, and the failure to reach out
 4  to you individually?
 5       A     Well, I -- I don't recall, but the actual
 6  apology is on the third page of your exhibit.
 7             And I don't know if they -- may I read
 8  this and --
 9       Q     Please.
10       A     -- and then we can actually just put --
11  put some teeth onto that question.
12             Okay.  It seems they did not mention any
13  of those three specific things.
14       Q     They are just engaging with what we might
15  call viewpoints; correct?
16       A     Yeah, I would say opinions but yeah,
17  sure, viewpoints.
18       Q     Fine.  And in fact, they say in her cover
19  e-mail to you:  "I would also like to offer my
20  personal apologies for everything that has happened.
21  There are no excuses for the views published,
22  platform [sic], and encouraged by our department's
23  publication and faculty members.  I am sincerely
24  sorry."
25             Right?
0243
 1       A     Correct.
 2       Q     And she also -- jumping back to the
 3  letter -- says something about structural racism.
 4             Do you see that?
 5       A     Can you give me a line number?  First
 6  paragraph, second paragraph?
 7       Q     First paragraph, seven lines down?
 8       A     Uh-huh.  Okay.  Hold on.
 9             Yes, okay.  Got it.
10       Q     Did you ever lecture Rachel Gain on the
11  meaning or not of racism?
12       A     No, I don't lecture anyone on the meaning
13  of racism.  Never have, never will.
14       Q     So you didn't bring up the lack of
15  meaning of that term that you've kind of testified
16  to today with her?
17       A     No.
18       Q     Okay.
19                  MR. ALLEN:  Okay.  Ben, I have no
20             further questions for this witness.
21                  MR. WALTON:  All right.  Can we go
22             off the record and take a brief break?
23                  MR. ALLEN:  Yes.  And I've been
24             instructed to change chairs.
25                  THE VIDEOGRAPHER:  We are going off
0244
 1             the record.  The time is 3:39.
 2                 (Whereupon, there was a recess taken
 3                 from 3:39 p.m. to 3:47 p.m.)
 4                  THE VIDEOGRAPHER:  We are going back
 5             on the record.  The time is 3:47.
 6                  MR. WALTON:  Dr. Ewell, we are back
 7             after a brief break and it's now my turn
 8             to ask a few questions.
 9                  I'll try -- try to keep these as --
10             as targeted as possible.
11
12                    CROSS-EXAMINATION
13
14  BY MR. WALTON:
15       Q     Just, first off, it's nice to meet you
16  remotely.  Sorry I couldn't be there in person.
17             But to clarify for the record, you and I
18  have never spoken before right now; correct?
19       A     That is correct.
20       Q     Okay.  Could you -- I -- I know there's
21  been a lot of talk back and forth throughout the
22  day.
23             I was wondering if you could give me
24  something as a handle to just as -- as clearly and
25  succinctly as you could, summarize what you see as
0245
 1  the relationship, if any, between Heinrich
 2  Schenker's ideas and music theory as it has
 3  developed in the United States?
 4       A     Yeah.  So the second part of what you
 5  just -- what you just ended with is extremely
 6  important, "music theory as it's been developed in
 7  the United States."
 8             Because Mr. Allen had asked about
 9  Heinrich Schenker and then almost immediately
10  followed it up with the white racial frame.
11             And I essentially pushed back on that in
12  the sense that the direct connection between
13  Heinrich Schenker and music theory's white racial
14  frame, well, there is none.  That's 1935 and now
15  it's 2024.  So one must make connections; right?
16             And the reason -- I often will say not
17  just Heinrich Schenker, but the legacy of Heinrich
18  Schenker.  That's really the main point of -- of my
19  crit- -- my criticism of Heinrich Schenker.
20             It's really not so much about the person,
21  it's very much about the legacy that he left via
22  these emigres to -- first to the east coast and
23  Chicago -- there was one person there.  That might
24  have been Oswald Jonas.  And -- and then what
25  happened in the ensuing 90 years after Heinrich
0246
 1  Schenker died.
 2             So if -- if one studies race scholarship
 3  as virtually no music theorists do, it need be said,
 4  right, it's not a common thing, then it actually
 5  becomes pretty clear to see how and why a figure
 6  like Heinrich Schenker could become so extremely
 7  popular, especially in the 1930s and '40s where
 8  racial segregation and the Jim Crow racism were just
 9  on fire in our country.
10             So when the -- the -- the writings, the
11  pseudoscientific writings of Schenker, the
12  anti-black racist writings, the anti-Asian racist
13  writings, the anti-Islam writings -- he -- he mocked
14  the Arabic language in one very interesting,
15  poignant footnote, for example -- then we can begin
16  to see how in the 1930s in the United States and the
17  1940s, well, that just fit perfectly -- it fit
18  perfectly with the American mind; right?  It wasn't
19  just music theory, it -- it was America.
20             We were living in the 1930s and '40s
21  through a virulently racist -- and now I will just
22  say that word, a word I generally don't say -- a
23  virulently racist period of our country, thousands
24  upon thousands of African Americans slaughtered in
25  lynchings and mass race occurs -- sorry, mass --
0247
 1  mass massacres, race massacres; right.
 2             So when I start -- you're asking about
 3  the connections of Heinrich Schenker and how I'm
 4  putting these things together now.
 5             Well, one must really tell the story in
 6  great detail going through the years and one cannot
 7  distill and say, How does Heinrich Schenker, the
 8  person, connect to today's music theory's white
 9  racial frame?
10             The short answer to that question is,
11  well, in almost no way, actually, if you are going
12  to ask me that specifically.
13             But that's not how I answered a question
14  that was very similar put to me by Mr. Allen because
15  I have to relate this history of how these things
16  actually happened.
17             It's very common among race scholars to
18  do that and I think I did it pretty effectively in
19  music theory.
20             I don't know if I answered that
21  question -- did I answer that question, Mr. Walton?
22       Q     I -- I think so.  And, you know, my
23  question was not coming from a request to clarify a
24  specific thing from earlier today.
25             It was just more of a broad question for
0248
 1  those of us who aren't either sociologists, race
 2  scholars, or music theory scholars, how would you
 3  describe your -- your thesis, as it were, in a
 4  nutshell?
 5       A     Uh-huh.  Yeah, well, the thesis is that
 6  the -- the historic white supremacy -- and
 7  patriarchy, by the way, it's something I always
 8  hasten to add -- of the United States of America
 9  have manifested themselves in the field of music
10  theory.  Obviously they've manifested themselves
11  from top to bottom in any academic field, in any
12  walk of life.
13             And that's something that most people
14  would concede, they would acknowledge that -- that
15  historically the country does have a white
16  supremacist and patriarchal past; right?  That's not
17  an open question.
18             The question for me as an American
19  citizen and as a Ph.D. holder in music theory is --
20  who hap -- who happens to be a black person, is how
21  those things have come together to create a
22  situation in which, as I put in that article that we
23  talked about earlier, out of about 1200 people,
24  there were two associate professors who were black.
25  I was one of them.  Now I'm a full professor.
0249
 1             That's an unacceptable percentage.  It's
 2  an unacceptable percentage to have two black
 3  associate professors, out of -- associate out of
 4  1200 -- 200 people, maybe, let's say, that would be
 5  one percent; right?
 6             Black Americans are roughly 14 percent of
 7  the country.  I'd like to see 14 percent associate
 8  professors in my field.  That would be a fair
 9  system.
10             But apparently there are people who don't
11  want that.
12             We all know that what we are living
13  through in the United States of America, we will get
14  through it and we will get through it together.
15  Together.  We will fight through these racial
16  problems, our racial past.
17             If I can go down one small rabbit hole, I
18  spent some time in Norway this summer and I gave a
19  talk -- a couple of talks:  One at the University of
20  Oslo, the other at the Music Academy in Oslo.
21             And you all probably know, I'm sure
22  you've all been to Europe, you probably know that
23  Europeans are really good at pointing the fingers at
24  Americans when it comes to racism; right.
25             And I tell my colleagues in Norway and I
0250
 1  tell anyone else who will listen, you know what, I'm
 2  a black American.  We're fine.  Leave me and leave
 3  us out of this.
 4             Look at yourselves in the mirror, my
 5  Norwegian colleagues.  You look at yourselves in the
 6  mirror and you ask yourselves about your own views
 7  about black people, for example, or about your
 8  Somali immigrants, about your own anti-blackness;
 9  right.
10             So I'm going to climb back out of my
11  rabbit hole and simply say that these -- these
12  anti-black elements, these anti-woman elements,
13  these anti-Jewish elements, these anti-Islam
14  elements, anti-Asian elements are in fact part of
15  contemporary music theory.
16             In part, why?  Because they are part of
17  our American society.  It's not all about our
18  country.  Our country has many beautiful, great
19  things about it and I do, in fact, highlight those
20  things.
21             I don't get credit for that and I'm fine
22  with that.  People don't want to talk about Phil
23  Ewell actually praising the United States, which I
24  do.  I'm okay with that.
25             And if people want to criticize me
0251
 1  because -- and they call me a racist and a sexist
 2  and an anti-Semite because of something I -- fine.
 3  You know, I'm -- I'm a big boy.  I can handle the
 4  pressure.
 5             But I do -- I do think it's extremely
 6  important to make the connections to show how some
 7  of the structural anti-black, structural white
 8  supremacist elements, and structural patriarchal
 9  elements in music theory have manifested themselves
10  in the United States.
11             And let me just end by that very same
12  statistic.  You are asking, how?
13             I'm like, well, I've explained how in
14  lots of writings.  One result would be two black
15  associate professors.  The numbers don't lie.  The
16  numbers do not lie.
17             There are 94 percent white people who
18  have power in music theory.  Tenure.  That's the
19  result of the racial segregationism, the
20  anti-blackness, etc., of -- of Heinrich Schenker's
21  American legacy, among other problems that we have
22  in music theory.  Heinrich Schenker was obviously
23  not alone.
24       Q     Do you -- just to clarify, do you believe
25  that white males today should not have a say in
0252
 1  music theory's development?
 2       A     Not at all.  That's -- that -- that --
 3  I -- I was about to say, that's a silly question.  I
 4  don't mean to say that.  I'm sorry, Mr. Walton.  I
 5  don't want to say that.
 6             But no, of course not.  I believe that
 7  white men should have absolutely a seat at the table
 8  right here, whether we are in a -- in a table in --
 9  in New Haven.
10             But for my purposes, a table of
11  discussions of music theory moving forward.  I'm
12  honored and humbled that hundreds -- hundreds of
13  white men have reached out to me from high school
14  students who are literally 14 years old who are
15  Zooming with me for an interview or -- or just
16  asking for some -- some questions, you know, to my
17  colleague John Snyder, who finished my book a few
18  weeks ago and just wrote me -- he's at the
19  University of Houston as a professor of musicology.
20             And he's certainly in his seventies, a
21  white man.  He just said, Thank you for your
22  thought-provoking book.  It was very, well,
23  thoughtful.
24             To which I said, Thank you for reading
25  it, John.  I look forward to seeing you at the next
0253
 1  conference; right.
 2             I welcome white men with open arms and
 3  I'm really honored and humbled that so many have
 4  taken me up on these calls.
 5       Q     I'm -- I'm going to jump around just a
 6  little bit and these questions will appear
 7  disjointed just because I'm trying to save time.
 8             Do you -- you were asked at some point
 9  during the day about the idea of censorship.
10             Do you have any personal reason to
11  believe that UNT censored any material that was
12  presented for publication in any of its academic
13  journals?
14       A     I have no reason to believe that
15  happened, no.
16       Q     Okay.  Moving to Levi Walls, do you have
17  any personal knowledge as to why he appeared to
18  change his opinions regarding your presentation?
19       A     Personal knowledge, no.
20       Q     And did you ever talk with Dr. Benjamin
21  Graf about any pressures he may or may not have been
22  feeling in his position?
23       A     No.
24       Q     And did you ever talk with Dr. Graf about
25  why he said or wrote any of the specific things that
0254
 1  you've -- you've looked at earlier today?
 2       A     No.
 3                  MR. WALTON:  All right.  Well, I
 4             hope that was less than 15 minutes.
 5                  I'll pass the witness.
 6                  Thank you for your time, Dr. Ewell.
 7                  THE WITNESS:  My pleasure.  Thank
 8             you.
 9
10                  REDIRECT EXAMINATION
11
12  BY MR. ALLEN:
13       Q     Let me just ask two brief questions.
14             Do you consider Timothy Jackson to be a
15  white man?
16       A     I've never met Timothy Jackson and I've
17  only seen a profile picture in The New York Times
18  because Michael Powell published something.  And he
19  certainly looked like he presented as white.
20       Q     Did you embrace Timothy Jackson's
21  viewpoints because he expressed criticism of you?
22       A     I don't understand that question.
23       Q     Let me strike it.
24             You just testified in response to
25  Attorney Walton's questions that you embraced white
0255
 1  men who had contacted you, something to that effect.
 2             Did I misrepresent that testimony?
 3       A     Slightly.  I've -- I've welcomed white
 4  men who contact me to have discussions, adult
 5  conversations, about race and music theory,
 6  patriarchy, etc.
 7       Q     Have you welcomed Timothy Jackson's
 8  criticism of your work?
 9       A     No.
10       Q     In fact, you've said it's dehumanizing;
11  right?
12       A     I'm thinking about the chapter that I
13  responded to Timothy Jackson.  I do not believe I
14  used the word "dehumanizing" in that chapter.  And
15  that's the most rigorous unpacking of his particular
16  response, so no.
17       Q     You did say it was dehumanizing to the
18  journalist of the Denton Record Chronicle, however;
19  correct?
20       A     Yeah.
21       Q     So isn't it true that you only welcome
22  white people who agree with you?
23       A     That's not true, no.
24                  MR. ALLEN:  I'll pass the witness.
25                  MR. WALTON:  We'll reserve.
0256
 1
 2                    CROSS-EXAMINATION
 3
 4  BY MR. PAINTER:
 5       Q     I think we are going to clarify one issue
 6  on -- and I guess I would ask the question as your
 7  counsel -- about the peer review.
 8             There was some confusion with your
 9  plenary talk.
10       A     Uh-huh.
11       Q     And the plenary talk you were invited to
12  give and I believe there was testimony about how
13  that process worked.
14             But then you gave the plenary talk and
15  then they republished your plenary talk.
16             Did they republish that word for word?
17       A     Yes, more or less.
18             There might have -- you know, when you
19  give a plenary, maybe there's something on a slide
20  that doesn't make it into the text, maybe there's a
21  comma that you want to add.
22             So I can't say verbatim exactly what I --
23  what I spoke.  But, you know, 98, 99 percent
24  verbatim and more or less no change in the content
25  of the talk itself.
0257
 1       Q     Did they do that from a tape recording
 2  or -- or from the -- a piece of paper that you --
 3  because you read the talk that you give them a copy
 4  of the paper?
 5       A     A piece of paper.  And, in fact, Marianne
 6  Wheeldon, the editor at the journal at the time, had
 7  asked us to reproduce the -- the PDF word text of
 8  those talks.
 9             So it -- it wasn't up to them.  We
10  basically went -- I had put in a comma if I needed
11  one and I essentially handed over the PDF of what I
12  had read in front of the -- in front of the plenary.
13             And I should also say that sometimes
14  people extemporize a little bit in addition to
15  speaking from script.
16             My particular talk, since I knew it would
17  be, well, let's say, controversial -- speaking about
18  whiteness as a black person is almost always
19  controversial in a white supremacist system; right?
20             I literally had scripted every word that
21  I read that day.  So the plenary talk was in fact
22  the PDF that I had sent for publication.
23       Q     And you sent it after you gave the talk?
24       A     Correct.  Yeah.
25       Q     And is this common with plenary talks
0258
 1  that when -- if they are published, they are
 2  published word for word what was said, with that
 3  exception that some people give some extemporaneous
 4  comments, but that it's a set talk and then it's
 5  published.
 6             And have you ever heard of any type of
 7  peer review process ever be used really for
 8  republication of plenary talks?
 9       A     No.  Plenary talks are not peer reviewed
10  generally in -- in -- in music academia.
11                  MR. PAINTER:  Okay.  No further
12             questions.
13                  MR. ALLEN:  I have no further
14             questions.
15                  MR. WALTON:  Nothing further here
16             either.
17                  THE VIDEOGRAPHER:  Okay.  This is
18             the end on the video deposition of Philip
19             Ewell.  The time is 4:04.
20                  MR. WALTON:  Dr. Ewell, thank you
21             for your time.
22                  THE WITNESS:  Thank you.
23                 (Whereupon, there was a discussion
24                 off the record.)
25                  MR. WALTON:  Cliff, we will take an
0259
 1   electronic only copy of the transcript.
 2   No need to order a paper copy but I would
 3   like a PDF.
 4        COURT REPORTER:  Okay.  Thank you.
 5       (Thereupon, the deposition was
 6       concluded at 4:04 p.m. EDT.)
 7
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0260
 1                  C E R T I F I C A T E
 2         I hereby certify that I am a Notary Public,
 3  in and for the State of Connecticut, duly
 4  commissioned and qualified to administer oaths.
 5         I further certify that the deponent named in
 6  the foregoing deposition was by me duly sworn, and
 7  thereupon testified as appears in the foregoing
 8  deposition; that said deposition was taken by me
 9  stenographically in the presence of counsel and
10  reduced to typewriting under my direction, and the
11  foregoing is a true and accurate transcript of the
12  testimony.
13         I further certify that I am neither of
14  counsel nor attorney to any of the parties to said
15  suit, nor am I an employee of any party to said
16  suit, nor of any counsel in said suit, nor am I
17  interested in the outcome of said cause.
18         Witness my hand and seal as Notary Public
19  this 3rd day of October, 2024.
20
21                 _______________________________
22                          Clifford Edwards
23  Connecticut Notary Public No. SNPC.0129714
24  My commission expires:  9/30/2026
25
0261
 1                        J U R A T
 2
 3       I have read the foregoing 260 pages and hereby
 4  acknowledge the same to be a true and correct record
 5  of the testimony.
 6
 7
 8
 9                   ________________________
10                    PHILIP ADRIAN EWELL
11
12  Subscribed and sworn to
13  _______________________________.
14  Before me this _____ day of ____________________,
15  2024.
16
17
18
19
20  ________________________________________
21  Notary Public
22  My Commission Expires:
23
24
25
0262
 1                 DEPOSITION ERRATA SHEET
 2
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22
23  SIGNATURE:_______________________DATE:_________
24  NAME:  PHILIP ADRIAN EWELL
25
0263
 1                 DEPOSITION ERRATA SHEET
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23  SIGNATURE:_______________________DATE:___________
24  NAME:  PHILIP ADRIAN EWELL
25