It was dumb. It was dumb given the environment. It was dumb no matter what the purported justification. University of Oregon prof Nancy Shurtz should have known better than to go to a Halloween party in black face. And no doubt the uproar her decision caused drove that point home.
But it didn’t end there. Nor did it end with her dean having a stern talking-to about engaging in dumb conduct. As soon as it became known beyond a small circle of friends, Shurtz’s purpose, her intent, no longer mattered. It was no longer just a particularly dumb decision by a prof, but an act that left the campus analogue for horror in its path. Josh Blackman expands:
Nancy Shurtz, a tenured professor at the University of Oregon Law School, wore black face to a halloween party. Her costume, which also included a white lab coat and stethoscope, was meant as some sort of social commentary about the book “Black Man in a White Coat.” Nearly two dozen of Shurtz’s colleagues called on her to resign. Shurtz was suspended with pay, pending an investigation. That investigation came to a close on November 30.
Calls for her to resign. An “investigation,” a word simultaneously meaningless and scary, since the word “inquisition” has fallen from favor, undertaken.
Though the report recognizes that Professor Shurtz did not demonstrate ill intent in her choice of costume, it concludes that her actions had a negative impact on the university’s learning environment and constituted harassment under the UO’s antidiscrimination policies.
Furthermore, the report finds that pursuant to applicable legal precedent, the violation and its resulting impact on students in the law school and university outweighed free speech protections provided under the Constitution and our school’s academic freedom policies.
The math is easy to do, even for lawyers: No ill intent + Impact on students + Outweighs Free Speech and academic freedom = Burn the witch!!! The students who were present at the “occurrence” were, as one would expect, scarred for life:
From the student interviews, it appears clear that for the majority of the students their presence at the event subjected them to an occurrence sufficiently severe to interfere with their participation in University programs or activities.
What the Halloween party trauma has to do with their ability to benefit from a college education might be unclear to the unwoke.
Almost every student reported feeling shocked, offended, angered, disappointed, surprised, anxious or uncomfortable being at the event. The discomfort was not limited to the students of color.
These were primarily law students. They are really gonna hate their first trip to lockup, or even worse, the first time a judge peers over the bench to tell them gently to STFU because they’re morons. But I digress.
Had the impact been limited to the law students, perhaps it could have been contained, addressed within the small community of strong, empowered people. But nope. It didn’t stop there.
We find that this environment was and is intimidating and hostile and has impacted a wide range of students from different backgrounds. It is also apparent, given the unanimous response from the witnesses, that a reasonable person who is similarly situated would have experienced such an effect. Almost every student interviewed reported that they knew the costume was “not okay.”
Interpreting for the unwoke, when a student says something was “not okay,” they mean it was “literally Hitler.” What sort of college wants “literally Hitler” teaching its students?
Our evaluation, consistent with our finding of discriminatory harassment, is that the effects of Shurtz’s costume constitute disruption to the University significant enough to outweigh Shurtz’s interests in academic freedom and freedom of speech in the type of speech at issue. In addition, the resulting hostile learning environment and impact upon the academic process renders this particular speech to be speech that the University has a strong interest in preventing.
Thankfully, the school responded quickly to quell the disruption that would have ended life as we know it on campus. But for that free speech detail.
This is a very, very dangerous standard. An off-campus event that a small number of students attended now gives rise to on-campus discipline because students (who did not even witness the event) feel compelled to “avoid the resulting negative environment.” If this is the standard, then anything and everything can create a “hostile educational environment.” Consider several examples I raise in my my forthcoming piece in the Georgetown Journal of Legal Ethics on Model Rule 8.4(g).
Recognizing the irony in this particular situation is important, as there isn’t any comfort to take by characterizing Shurtz’s actions as alt-right or White Supremacist. Those are good enough reasons to suspect constitutional rights, because the only people who avail themselves of such loopholes are deplorables.
But Shurtz was no deplorable. Indeed, her motives were pure, laudatory even. She was on the side of truth and justice, wearing blackface to promote social justice. She was on their team. Still…
A number of students, some of whom had never attended a Federalist Society meeting before, spoke to me after the event. One student told me that he attempted to defend Prof. Shurtz’s First Amendment rights on Facebook, and he was savagely attacked by other students, who charged that he was racist. Another student said that certain professors were dedicating class time to the issue (which upset some students), and other professors were not dedicating class time to the issue (which upset other students). Another mentioned the “fear of retribution” among students on the right. Another said that only one professor on campus offered a tepid response of Shurtz, and this professor was lambasted by colleagues. All noted that there was a tension in the air, and a distinct fear of defending Professor Shurtz’s rights.
You can’t do it. You can’t discuss it other than to condemn it. You can’t defend it. Because the hurt felt by people who only heard about this travesty outweighs the Constitution. And Shurtz’s fellow lawprofs are hiding in corners silently, hoping no one points any of this out. Except Josh Blackman did.
Update: Shurtz has released a statement in response to the unlawfully disclosed report by University of Oregon.
On Wednesday, Dec. 21, 2016, the University of Oregon improperly released a flawed investigative report into events surrounding a Halloween party that I hosted in my home. This release violated rights of employees to confidentiality guaranteed by law. In addition, the report contains numerous mistakes, errors and omissions that if corrected would have put matters in a different light. For example, it ignored the anonymous grading process, the presence of many non-students as guests, and the deceptive emails that created a firestorm in the law school.
I, and my legal advisers, were preparing a response to the draft report. Although the University was aware of our intention to submit our corrections by noon (local time) yesterday and to deal with its errors in-house, the Provost’s office or its advisers cynically decided to try to publicly shame me instead.
Shurtz calls the UO disclosure an act of “supremely public retaliation” to raise issues of lack of diversity in “American professions.” That may be a facile characterization on her part, but does not change the irony of the situation or impropriety of releasing a confidential and potentially disingenuous report.
As Josh Blackman notes, the silence of the rest of the law faculty at UO on this violation of the First Amendment is deafening, and he plans to write “a critique of the stunning silence of the law professors at Oregon, and elsewhere, in light of this troubling episode.”
Josh wrote about this. Paul Caron posted as well. Where are all the other “scholars”? Hiding in the corner, hoping you can’t smell the acrid scent of hypocrisy and cowardice.
Update 2: Josh provides a survey of the relevant law, together with the pointed approach of responding to expression that offends you with expressions of your own. Also, a few additional academics are noted, although the silence remains as loud as before.
I’ve seen only a few posts by Brian Leiter, Paul Caron, Glenn Reynolds, Ann Althouse, and Tom Smith, as well as a few tweets. A few professors have emailed me privately, so I suspect there are many more that are incensed by this incident. There needs to be more outrage here.
Since this issue arises within the Academy, noting the expressions of “grunts” isn’t worth the pixels.