A sad day for freedom of speech and expression at the University of Oregon

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:

Ofer Raban

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.

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21 Responses to A sad day for freedom of speech and expression at the University of Oregon

  1. honest Uncle Bernie says:

    Sad indeed. I am getting emails from old friends expressing astonishment at this episode and its development. People outside academia who are well educated, some with Ph.D.s. They can’t imagine why anyone would choose now to become associated with UO. It is so different from the UO of old.

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    • prof at another school says:

      I wonder how it will impact the new provost search, if some candidates will quietly withdraw ? I nominated a candidate for the position, a current-provost at a comparable R1 school, a chap of middle eastern descent, who would fit well with the new Knight campus; I would not nominate him now.

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      • feichangdao says:

        Good lord, are you actually TS Lawrence come back from the grave? Who says “chap of middle eastern descent” before bemoaning the idea that said “chap” might not be able to wear blackface should he be hired as a provost? And what does his “descent” have to do with anything beyond being a transparent ploy to deflect any accusations of racism? Are you at all aware of how condescending you sound? I’m sure this chap has actual achievements that would form a far better basis for being hired at the new campus and aren’t related to his family background.

        This probably won’t pass moderation (free speech isn’t all that important here, after all), but I feel like I’m taking crazy pills. Does no one have any friends who believe intolerance comes in more forms than just “intolerance towards others freedom of speech”? Has no one met anyone who expressed that perhaps they will not be attending or applying to the UofO because of the environment of racial intolerance that exists here? If this site is at all reflective of the attitudes of the UO faculty (and in some respects I believe it is, while in others, thankfully, it is not), it is indeed time for some serious introspection.

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        • Ralph says:

          You interpret the reference to “descent” as a transparent ploy to deflect accusations of racism. I read it as a plea for acknowledging that staging a psycho-social blowup in the law school and eviscerating freedom of speech protections discourage many people we would like to hire, including people who would in fact increase our racial diversity. Here is an interesting difference. I may be wrong. You may be right. The truth may be somewhere else—but this is discussable, isn’t it? We needn’t just assume bad faith or ploys, right? What good does that accomplish?

          Of course intolerance comes in many forms. It is always time to be aware, persistently, of the degree to which, and the manner in which, and the places in which an environment of racial intolerance has developed, or is supported, or is tolerated. There are many places on campus, and there are many people, who work very hard to dismantle such environments and to build an inclusive culture here—including many among the UO faculty and some who post on this blog.

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          • prof at another school says:

            Hi Ralph; My language was clumsy; your interpretation is pretty much correct. This sitting provost grew up in the middle east and witnessed many forms of intolerance; bullets and bombs galore. He wrote some very calming emails to his campus in response to the post election turmoil last fall.
            I merely thought he would be good for UO.
            My last sentence means that I now doubt he would be interested in the job, but I may be wrong; perhaps your search committee has followed up my nomination.

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  2. One Wonders says:

    The full text of Professor Raban’s guest op-ed includes this paragraph:

    “But we should also note that the professor in question was one of seven law school professors who had complained to university officials about the managerial performance of the law school dean. Isn’t it often the case that the settling of personal scores underlie ideological purification campaigns?”

    One wonders if the “managerial performance” complaint(s) exist(s) somewhere in public records?

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    • uomatters says:

      Sort of. UO’s Public Records office released one 3 page complaint about Dean Moffitt’s leadership of the Law School, as part of their 50K page release of some of the UO Presidential Archives. As you can see they redacted it a bit more heavily than the Barran Liebman report on Professor Shurtz:

      http://uomatters.com/wp-content/uploads/2017/01/Letter-to-Gottfredson-from-Law-faculty.pdf

      I seem to remember that there was more on the “zip drive” which I gave to Doug Park.

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      • One Wonders says:

        An administrative pink-out to cover over a collegial attempt to diagnose why the law school’s was drowning in a sea of red!

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      • Daffy duck says:

        the redactions give new meaning to purple prose

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  3. Publius says:

    It is time for a “Sadat comes to Jerusalem” moment: an unexpected act of creative leadership that will put an end to this debacle/nightmare/farce.

    One problem is that no one is in control of the narrative. After Coltrane, no one has any confidence in administrative pronouncements/actions, Nancy is constrained by her looming legal action, laws profs–except for Prof Raban–have been mute since the “open letter”. So the impression is that rash action has been followed by utter aimlessness; it feels like the Nixon White House during Watergate.

    Perhaps the Senate needs to step forward, as it did after the basketball fiasco. The Law School’s problems now impact everyone. I don’t think a Senate resolution will be enough. Perhaps the Senate could appoint a special committee, as it did after the basketball incident–to speak for the sane people at the U of O, and suggest some ways forward.

    Just a thought.

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    • environmental necessity says:

      This is sensible.

      On top of the all the various issues at stake (inclusiveness, racism, cluelessness, freedom of speech, employment due process, etc.) is the fact whatever our view of the situation the handling has further worsened the fallout.

      Someone thoughtful needs to take charge of a collaborative process that drives forward a just resolution in a timely manner that is well-regarded by students, faculty, and administrators here and around the country.

      I tend to think Shurtz’ actions, as we are aware of them, are highly problematic and not easily excused; I think the Dean and the President and some other faculty have made missteps and have shown poor judgment; I think some UOM posters are too quick to focus on the Prof’s rights and grab the free expression cudgel, glossing over some important issues in an entirely predictable way.

      *But above all that* I agree this episode shows a lot of damaging “aimlessness” as Publius puts it. That lack of principled, deliberative, collaborative, considered yet expeditious resolution through leadership puts this university in a very poor light from a lot of different angles. Deservedly so, based on performance to date.

      Along with CASI a defining career moment for President Schill. Please step up on this issue with much more thoughtfulness and effectiveness. The Oregon community needs to see and hear a community-building plan he will oversee. This is really hurting many Ducks as well as our reputation. Solve it, sir, and the Senate can help you do so.

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  4. thedude says:

    Here’s the rub.

    This month my department is going to be recruiting.

    Here’s two things I expect to hear from candidates.

    1. Isn’t that new knight campus exciting? How is that going to affect your department?

    Answer: Yes its exciting. Problem will not directly benefit us because we’re not a hard science.

    2. I read this WA-Post article. What bearing does this have on freedom of speech for new ast profs?

    Answer: For research, I think you’re fine, do whatever you want provided your methodology is sound. For teaching, TBD. She was wrong and her actions were racist and hurtful. But as an ast. prof, be careful you don’t piss off the students when you teach because mob mentality and fear of bad pr appears to rule here.

    We will feel a chill in recruiting efforts is my best guess.

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    • just different says:

      Or you could tell them you’ve instituted some obviously much-needed training in not being an insensitive asshole to a diverse student body. It would be a great shibboleth–the candidates who are on board with it are already there, and the ones who think it’s PC nonsense so you don’t “piss off students” are the ones you don’t want anyway. It’s very revealing that you’re framing the problem as lying with the students and not with the faculty.

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      • reaction says:

        So your response to concerns about a lack of freedom of speech at UO is to tell candidates that we’ve implemented training about how to not be insensitive?

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        • just different says:

          No, that’s my response to someone who would advise a job candidate not to “piss off the students” because of the “mob mentality” at UO.

          Here’s what I actually would say to a job candidate who expressed concerns about free speech at UO because of what he read in the Volokh column:

          “There are some reasons to be concerned about free speech at UO, for example, saying things that piss off someone powerful [as this blog sometimes does], but the Shurtz matter isn’t evidence of it. Although the Shurtz matter was to some extent about central admin overreacting to bad PR, it’s undeniable that Shurtz shouldn’t have done what she did because it was bad for her students and bad for the racial climate on campus.

          “As for the WaPo column, Volokh has a very extreme point of view about protecting discriminatory expression as ‘free speech’ that neither the DOE, nor the state of Oregon, nor the university agrees with. The university has an essential obligation to create a space of equal access for all students, and Shurtz failed to fulfill that obligation. [Incidentally, I don’t think this matter was handled at all well by the administration, but I also don’t think that Shurtz should get a free pass via academic freedom.]

          “Although Shurtz meant well in the sense that she wasn’t motivated by hatred or bigotry, her decision to wear blackface reflected a profound lack of awareness about how hurtful and damaging that could be. We don’t want to do anything like that to our students, and we don’t want to hire anyone who would do anything like that to our students, even if it was out of ignorance.

          “If you’re concerned that you might inadvertently create an environment in the classroom that discriminates against some students, as part of our commitment to inclusion we encourage new hires to participate in a series of workshops that addresses some of the most common issues that can arise. We want to be supportive of both our faculty and our students.”

          Hope that answers your question.

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          • Ralph says:

            This is a good, thoughtful reply. It makes me think again about this case, as I often do. Honestly, though, if I were, as a job applicant, told this–that at the UO my intent would not count, that at the UO my expertise and training as a teacher were possibly not reliable, that at the UO the consequences for making mistakes in this regard could be disastrous for me, but that there were UO “workshops” planned for me to get aligned with the campus on controversial issues–well, I would most likely–unless there were huge offsets–put the UO at the bottom of my list. Why go willingly into such an obviously troubled and risky environment?

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            • just different says:

              Thank you, Ralph. First, it’s not true that intent didn’t matter in the Shurtz case, only that “good intentions” shouldn’t be completely exculpatory. (Imagine what the reaction would have been if she had instead been at a minstrel show or a Klan rally.) I’m not a lawyer, but my understanding is that discrimination case law for the private sector has been this way for several decades: Basically, if you’re doing something that has a disproportionate negative impact on a protected group, then it’s discrimination and you need to fix it, period. Your intentions and excuses don’t matter. Academia has for various reasons often been able to evade the brunt of that standard, usually by invoking some variant of academic freedom, but this has been changing.

              Second, I have no doubt that many interviewees would respond the way you describe–it is still true that the great majority of competitive R1 applicants are from professional-class families, grew up in segregated neighborhoods, and attended de facto segregated schools all the way through the PhD. They also have no training or experience with teaching diverse students and probably little reason to have ever thought about it. Worse, most of them seem to assume that it’s not their responsibility and just being a good person should be enough to get them through.

              Things were certainly simpler back when you could assume that everyone was like you and that anyone who wasn’t like you either wouldn’t complain or wouldn’t be taken seriously by your university. We no longer live in that world. I would argue that this is a good thing, but it certainly upends a lot of privilege that faculty are accustomed to taking for granted. The kicking and screaming on these threads makes it clear how this is going over.

              Any institution that recognizes the need to adapt is going to have to deal with this sooner or later; UO is just being forced to deal with it now. I would rather see constructive and cooperative policy developed that helps everyone move forward instead of seeing the current lose-lose situation where the faculty pretends it’s still 1959 while the administration becomes a capricious enforcer, at least whenever someone does something that embarrasses or legally jeopardizes the university.

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            • thedude says:

              Justdifferent,

              Intent does matter. If I institute a drug testing program because I don’t want to hire people who use drugs, and this happens to disproportionately affect minority applicants, I wouldn’t be guilty of discrimination legally. Maybe a sociology prof might argue that is an inter-locking system of oppression…

              The interviewees who have attended segregated schools would include the minority applicants alike on average. The fact of the matter is that the UO has increased its diversity, but not of black students, chiefly because there are not many of them in Oregon.

              Universities should be places would people can express controversial ideas. Where students are prepared to become leaders in the world. Where they are prepared to deal with conflict.

              What is the world where we live in? Where there is no conflict? Where we have zero-tolerance for certain types of speech? Which ones exactly? Anything offensive? Or only things offensive to protected groups? How is that equal access? Also how exactly have zero-tolerance laws for violence worked out?

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    • PBF says:

      Or better yet, you could just tell the new recruits not to do things with a loaded history of racism attached to it like blackface. I can assure you, talking about blackface will be received differently than showing up with it to class.

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      • dkslfj says:

        Why? Nothing in the tone of current postings here, including your own, PBF, and nothing in the way the Law Prof case was handled suggest your bland assurance is something I should bank my employment on.

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        • PBF says:

          So that I understand your perspective, could you give me an example of a professor talking about an issue like blackface and facing the same scrutiny as Schurtz currently is? This is not me being sarcastic; as someone who makes a distinction between talking about racist acts and actually committing them, I really am curious.

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