UO Law prof Ofer Raban, on the Oregonian Op-Ed page, identifying a series of problems with the investigation report commissioned by the UO general counsel’s office from Edwin A. Harnden & Shayda Z. Le of Barran Liebman, LLP, one of several firms specializing in representing employers in legal disputes that UO currently has on retainer. Here’s part of Raban’s Op-Ed:
Last week, the University of Oregon released and officially adopted a legal report regarding a law professor who donned a Halloween costume representing an African-American doctor. University leaders suspended the professor and commissioned the report from a Portland law firm, which worked under the “direction and guidance” of university lawyers.
The report recognized that the professor, who has a history of advocacy for minority rights, donned the costume at a party at her home in order to honor an African-American author and call attention to the scarcity of African-Americans in medical schools. The report also noted that she was genuinely shocked and surprised at the negative reactions to her costume, and promptly apologized.
But the report concluded that the costume constituted racial discrimination and harassment in violation of university rules. It goes on to claim that the professor’s expression is not shielded by university rules protecting free speech and academic freedom, nor by the Constitution’s freedom of speech.
This is a deeply flawed report, and the university has made a legal and moral mistake in adopting it.
Most astonishingly, the report fails to address the issue that makes this case so legally fraught: namely, that the costume was worn to advocate for racial equality. While the report concedes that important fact, its legal analysis fails to take it into account. For all we know, the analysis would have been the same if the professor had donned the costume at a Ku Klux Klan rally. Moreover, the report not only concludes that a costume intended to advocate for racial equality constitutes racial discrimination, but also makes no attempt to justify this counterintuitive conclusion. Whatever one thinks of that question, the failure to address it is preposterous.
As for the freedom of speech, the report recognizes that the professor’s expression regarded a matter of “public concern,” which the First Amendment guards with particular rigor. But it then concludes that the university’s interest in preventing disruption to its educational operations outweighs the professor’s rights of free speech and academic freedom.
In another bizarre omission, the report fails to mention or analyze the Oregon Constitution’s free speech provision, which Oregon courts ordinarily address even before the First Amendment since it provides greater free speech protections.
… Whatever the reason for administrators’ responses, let’s not forget what’s at stake in this sordid affair. According to the university, a professor is guilty of racial discrimination and harassment for donning a costume that sought to advocate for racial equality. And that act of political expression is not protected by the rights to free speech nor by academic freedom.
This is a sad day for the freedom of speech and expression at the University of Oregon.
Ofer Raban is a professor of law at the University of Oregon.