University of Oregon School of Law professor Nancy Shurtz stated last week that she was “evaluating [her] legal options” following UO’s response to a Halloween costume for which she wore blackface. First Amendment advocates, too, are speaking out against the university’s actions and the conclusions of a report on the incident released by UO.
Shurtz hosted a Halloween party off campus in her home, and students, professors, and others attended. According to Shurtz, she “intended to provoke a thoughtful discussion on racism” with her costume, a reference to Damon Tweedy’s memoir, Black Man in a White Coat. An investigative report commissioned by UO noted that even though “student witnesses reported feeling and observing shock, anger, surprise, anxiety, disappointment, and discomfort” due to Shurtz’s costume, “nobody told Shurtz during the event that her costume was inappropriate, that it was offensive, or that she should consider removing the black makeup.” After receiving critical feedback, though, Shurtz offered several personal and public apologies.
In early November, the university placed Shurtz on paid leave. Over 1,200 individuals, including some UO faculty, signed a petition asking for Shurtz’s resignation. Administrators also sent members of the campus community a message about the incident condemning Shurtz’s behavior and declaring, “Bigotry and racism have no place in our society or at the UO.”
As a public university bound by the First Amendment, UO cannot lawfully punish expression simply because it is deemed bigoted or racist. UO’s action against Shurtz and its broad statement to students, faculty, and staff make clear that no one affiliated with the university may exercise their First Amendment rights without fear of punishment.
The investigative report, dated November 30, devoted several pages to a list of “Impacts and Outcomes” of Shurtz’s costume, which varied considerably. Some of the listed items described the costume’s purported direct impact on students’ ability to do their work. But many of the other items related to subsequent discussions about the costume—including arguments about the First Amendment implications of UO’s response. Several students expressed a desire to avoid the debate, even skipping classes to do so.
The investigative report described the law school environment as “hostile, with discussions and strong conflicts of opinion taking place within the classrooms and on the law school social media pages.” Though this description appears in the section on “discriminatory harassment,” it is paramount for administrators to understand that “strong conflicts of opinion” alone do not constitute the kind of harassment that can be punished at a public institution, consistent with the First Amendment. To the contrary, strong conflicts of opinion are the driving force of the “marketplace of ideas” that universities are supposed to be. If students are skipping class to avoid conversations that are not germane to the course, then professors should be instructed to stay on-topic. If students are skipping class to avoid conversations that are germane to the course, but are heated and difficult, that is a matter to be worked out between the student and professor. It cannot be the basis for punishing the individual who sparked the conversation.
Unfortunately, the investigators found that UO’s policy against discriminatory harassment had been violated. The report reviewed the university’s academic freedom and freedom of speech policies, as well as First Amendment case law, concluding that “the actual disruption and harm to the University resulting from Nancy Shurtz’s wearing of the costume at the stated event are significant enough to outweigh Nancy Shurtz’s interests in academic freedom and free speech.”
The report conceded that it might be impossible to “meaningfully evaluate how much of the resulting impact was caused directly by Shurtz,” versus other factors like the pre-existing racial climate and potentially confusing messages from the administration. Still, according to the report, “Shurtz’s costume and actions set a course of events in motion, even though she did not intend those outcomes, which have been very negative towards, and impactful to, the school and the learning environment.” UO Provost and Senior Vice President Scott Coltrane wrote on December 21 that disciplinary action taken as a result of the report “remains confidential under university policy.”
Shurtz released a public statement alleging that the report violates employee privacy law, omits crucial details, and contains inaccuracies. As a result, she is considering her options with counsel.
Free speech advocates have voiced concerns, too. As George Washington University Law School professor Jonathan Turley pointed out on his website yesterday, several cases involving racially-charged expression suggest that Shurtz’s costume is protected under the First Amendment. In Rodriguez v. Maricopa Community College District (9th Cir. 2010), for example, the U.S. Court of Appeals for the Ninth Circuit held that neither Title VII nor the Equal Protection Clause required the school to punish a professor who “sent three racially-charged emails over a distribution list maintained by the Maricopa County Community College District.” Judge Alex Kozinski’s analysis is highly relevant to Shurtz’s case:
Indeed, precisely because [Professor Walter] Kehowski’s ideas fall outside the mainstream, his words sparked intense debate: Colleagues emailed responses, and Kehowski replied; some voiced opinions in the editorial pages of the local paper; the administration issued a press release; and, in the best tradition of higher learning, students protested. The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. See R.A.V. v. City of St. Paul, 505 U.S. 377, 391 (1992). Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched. See, e.g., Gitlow v. New York, 268 U.S. 652, 667 (1925); id. at 673 (Holmes, J., dissenting). The right to provoke, offend and shock lies at the core of the First Amendment.
Competitive Enterprise Institute senior attorney Hans Bader and South Texas College of Law professor Josh Blackman argued the same. Blackman started his analysis with a review of Berger v. Battaglia, 779 F.2d 992 (4th Cir. 1985), which involved a police officer who was reassigned and “stripped of his police powers” after refusing to “cease appearing in public wearing blackface.” Blackman explained the court’s ruling in favor of the officer and explained how the court’s analysis relates to Shurtz’s case:
Here not only was the perceived threat of disruption only to external operations and relationships, it was caused not by the speech itself but by threatened reaction to it by offended segments of the public. Short of direct incitements to violence by the very content of public employee speech (in which case the speech presumably would not be within general first amendment protection), we think this sort of threatened disruption by others reacting to public employee speech simply may not be allowed to serve as justification for public employer disciplinary action directed at that speech.
This is a perfect encapsulation of where the University of Oregon’s report went awry. Professor Shurtz’s costume did not cause any sort of disruption, but the punishment was justified by the “threatened reaction” to her costume “by offended segments of the public.” At bottom, the dispute arose only because of the so-called hecklers-veto.
University of California, Los Angeles law professor and First Amendment expert Eugene Volokh likewise explained how this application of harassment theories presents a grave risk to freedom of speech on college campuses. He wrote:
Now when you hear “harassment,” you might think of, say, targeted insults, or perhaps sexual extortion. But “harassment” has become a vastly broader term than that: Simply wearing a costume that offends people based on race is, according to the university, “harassment.”
Let’s take religion. Say a professor posts something on his blog containing the Mohammad cartoons (as I have done myself); or say that he displays them at a debate or panel that he is participating on; and say that he has invited students in the past to read the blog or to attend the panel. Then some Muslim students, both ones who are at the event and those who just hear about it, get upset. His colleagues and the administration decide to discuss the matter in detail, which fans the flames — something that could happen with the cartoons as easily as it can with Shurtz’s makeup. Under the logic of the Oregon report, such a post would equally be punishable “harassment.”
Students and professors are in trouble if they are at risk for punishment any time their expression motivates rigorous debate on campus. UO’s actions and the report on this incident make clear that that risk is real, and this could play out in any number of disturbing ways. For instance, public discussion of significant current events might well dominate classroom discussions and social media. The outcome in Shurtz’s case means that if someone expresses their opinion on any race- or sex-related controversy in a way that others deem offensive, that person will be held responsible for all subsequent discomfort and disruption—even if that discomfort is a natural consequence of constitutionally protected speech, and even if the disruption is plainly someone else’s responsibility. (Remember that professors’ clear ability to insist that students stick to the class syllabus didn’t prevent investigators from effectively blaming Shurtz for classes getting derailed by conversation about the controversy.)
Instead of appreciating the dialogue among students and professors as a sign of a well-functioning university, UO administrators have characterized this result as a problem to be avoided. The university’s response thus far and any additional punishment it metes out provide those who disagree with any speaker a perverse incentive to react as disruptively as possible in an attempt to shut the speaker down—effectively creating a heckler’s veto.
UO should reconsider its response and bring Shurtz back to work. In light of UO administrators’ public statements, it is imperative that the university also clarify to its students and professors that they will not be punished for their expression simply because it sparks a strong reaction from the campus community.