Nancy Shurtz And The Trauma Of The Extended Victim (Update)

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.

And “investigate” they did, reaching the shockingly inevitable conclusion that Shurtz wasn’t going to win prof of the year.

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 LeiterPaul 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.

27 thoughts on “Nancy Shurtz And The Trauma Of The Extended Victim (Update)

  1. Ross

    So, a situation that should have been handled with a quick “That was pretty fucking stupid, you might want to do something else next time” comment from the Dean gets blown up into a huge “Let’s kill the Constitution” saga. Forget the concern over Trump, the country is being destroyed from the inside by people who ought to know better.

    I am starting to wonder if anyone under the age of 50 has ever been subjected to a harsh response after making a mistake or saying something stupid. The cupcakes would be crying on the floor if they were subjected to some of the sarcastic “corrective commentary sessions” I’ve seen over the years.

    1. SHG Post author

      If the First Amendment dies, the question will be who killed it, the far right or left. Will there be an investigation or just a sigh of relief.

      1. norahc

        Both sides will have equal responsibility in the death of the First Amendment…but the blame should be placed on those in the center who stood by and did nothing to prevent it.

    2. losingtrader

      “I am starting to wonder if anyone under the age of 50 has ever been subjected to a harsh response after making a mistake or saying something stupid.”

      Definitely if they comment on this blog-

        1. losingtrader

          Email is now only being used to spoof my friends’ accounts and send them emails from themselves. I will get rid of this computer…… just as soon as I get a cell phone. No, really.
          That’s only to find out which old relatives are dead. As you know, we bury the next day, and it would be bad form not to show up.

    3. David Sims

      Social justice warriors sometimes turn against one another in what looks like a rush to prove themselves “holier than thou.” Nancy Shurtz is probably as leftist as they are, but in trying to promote a leftist idea, she did so in a way that was open to misinterpretation by other, more malicious leftists with an ambition to climb socially. The professor missed a step in the political correctness dance, and now she must face the guillotine. I understand that Paris was like this shortly after the French Revolution. Even if you were with the revolutionaries, you had to mind what you said and how you said it, or the people nearest would grab you and shout: “here’s an aristocrat sympathizer!”

  2. Dragoness Eclectic

    I find it’s easier, actually, if you don’t claim to be an enlightened social justice activist ally person. You get less flack if you openly do not give a crap what the special snowflakes call you.

    I wish the snowflakes would quit misusing (i.e., lying) about the “severe and persistent/hostile environment” condition; they know it’s a requirement for harassment to be a legal issue, so they lie like rugs to make it so. Unfortunately, that makes it harder for real harassment cases to be taken seriously.

  3. REvers

    “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.”

    Gently? Shirley, you jest.

  4. Matt H

    I am about four years out of UO Law. I remember a lunch time program put on by the Federalist Society that had some strange man talking about some thing or another. I don’t remember the exact substance of it, as I didn’t attend–I only heard about it after–but suffice it to say that the views he expressed were deemed offensive and were contrary to those of the majority of the student body. It was handled as one would expect in an environment that values free speech: He was challenged, mocked, derided, then largely ignored.

    No cries for discipline for the organization hosting or the students who organized it. People just dealt with it. Imagine that.

    But more to the point of your post, I’m struggling to see how the fact that “almost every student” feeling “shocked, offended, angered, disappointed, surprised, anxious or uncomfortable,” means that an actionable violation occurred.

    So now free speech bends when “almost everyone” feels that something is “not okay.” Great.

    1. SHG Post author

      One of the problems with stepping lightly onto the slippery slope is that you may not realize you’ve done so until you realized you’re sliding.

      1. Ross

        “But it seemed like a really good idea at the time”

        This is all starting to sound like the royal court manners several hundred years ago, without the edged weapon duels.

  5. The Present-Minded Professor

    Protip: next time just go as “White Woman In A Black Coat.” These kids are stupid, but they’re not morons.

  6. Mike

    If these students need a safe place from harsh words or in this case a Halloween costume, their parents failed.

    This is what we get when there is not a loser and everyone gets a trophy.

  7. Erica

    The only person who deserves free speech is whichever student is currently on Twitter raising awareness about racism at University of Oregon. I thought that’s how it works now. No?

  8. KP

    Ban Halloween, its the only answer.

    After all, several countrys have banned Guy Fawkes on November 5th, so it can be done.

    Then ban anything else that upsets them at all… Twitter, Facebook, Reddit…. smartphones, the internet…

    Lets push it back to the 1950s for them!

    1. Norahc

      Don’t forget to ban the rest of the holidays that offend somebody…Christmas, Valentines Day, President’s Day, Independence Day, Martin Luther Kind Day, Columbus Day, Thanksgiving.

      Just think of how much more work the government could get done in screwing things up with all those holidays removed from their paid day off schedules.

  9. Grum

    Ah young people. I remember going (on my parent’s sugestion) to a halloween party as a “darkie”, complete with burnt cork blacking and a crap wig about age 10; the adults there were somewhat taken aback, not that my folks would have given a shit about that. They had lived through a war, and, inter alia, had raised two much-loved twins who were the illegitimate progeny of my great aunt and an italian prisoner of war. My Mum has a pile of old family bith certificates of her family; one of them is blue – signifying lllegitimacy; she has only ever shown it to me once, saying “I think that’s disgraceful; doing that to someone”, and she’s not wrong.
    Can’t be arsed with these judgemental idiots; what the hell is wrong with them, and happy christmas to you all!

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