Another law school Dean castigates UO over First Amendment fail

In November Vikram Amar,  Dean of the University of Illinois law school reviewed the legal issues with UO law dean Michael Mofffitt’s decision to suspend Professor Shurtz from teaching on the well-read law blog Above the Law: “On Academic Freedom, Administrative Fairness, And Blackface“. On November 14th UO law professor Ofer Raban had an op-ed in the Oregonian, “A teachable moment on practicing what we preach”, here. On Dec 26th, UCLA law professor Eugene Volokh wrote an Op-Ed in the Washington Post: “At the University of Oregon, no more free speech for professors on subjects such as race, religion, sexual orientation“. On Jan 1st, Raban wrote a second Oregonian Op-Ed, “A sad day for freedom of speech and expression at the University of Oregon” explaining the legal issues with the investigation and interpretation of UO policy and free speech law conducted by UO’s hired employment law specialists, Edwin A. Harnden & Shayda Z. Le of Barran Liebman, LLP.  Their report and the letter from Provost Coltrane are here. (If anyone knows of any analyses by legal scholars – aside from Harnden & Ze – defending Coltrane’s statement that “… 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” please post a link in the comments.)

Today there’s an opinion piece from Erwin Chemerinsky, UC-Irvine Law school Dean. He was the founding dean in 2007, and UC-I is now the 28th rated law school, according to US News. “The 2014 Most Influential Person in Legal Education” according to National Jurist. His UC-I webpage and google scholar citations.

The most recent example of this occurred when an investigative report for the University of Oregon concluded that a professor had created a “discriminatory learning environment” by wearing blackface at a Halloween party in her own home. Earlier the professor had been suspended for doing this. No doubt many were offended by her actions, but unquestionably she was engaged in speech protected by the First Amendment and any discipline is unconstitutional.

In October 2016, University of Oregon law professor Nancy Shurtz hosted a Halloween party for about 25 students, faculty members, alumni and family members. Her costume was wearing black makeup on her face and hands, an Afro wig, and a white doctor’s lab coat. She told her guests that she was inspired by the anti-racist message of Damon Tweedy’s memoir about a black man starting his medical career, “Black Man in a White Coat.” She also had recently attended her daughter’s white coat ceremony — a tradition that begins a medical student’s first year — and she noticed an almost complete absence of black men. She said that she meant to draw attention to the lack of diversity in higher education.

Word quickly spread of Professor Shurtz’s costume and by the next day, she was condemned by students, faculty and University of Oregon President Michael Schill in a message expressing outrage to the entire university community. Shurtz was suspended from teaching pending review. Within a few days of the party, 23 law school faculty members wrote a letter urging Professor Shurtz to resign. It concluded: “If you care about our students, you will resign. If you care about our ability to educate future lawyers, you will resign. If you care about our alumni, you will resign.”

University of Oregon commissioned an investigation which concluded: “We find that Nancy Shurtz’s costume, including what constitutes ‘blackface’ through use of black makeup, constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment.”

The report found that her costume exacerbated racial tensions on campus in a way that had a disproportionate impact on students of color, because “minority students [felt] they have become burdened with educating other students about racial issues and racial sensitivity,” and because some students used “other offensive racially based terminology during class times in the context of discussing this event and broader racial issues.”

Professor Shurtz exercised poor judgment in choosing her costume and not realizing that some would be very offended by it. But poor judgment and offending people cannot be a basis for a university punishing speech. In countless cases, the courts have been adamant that speech cannot be punished because it is offensive. The Nazi party had the right to march in Skokie, Ill., despite the offense to its largely Jewish population and the many Holocaust survivors who lived there. Members of the Westboro Baptist Church have the right to go funerals of those who died in military service and express a vile, anti-gay and anti-lesbian message. The government would have almost limitless power to censor speech if offensiveness is a sufficient ground for punishing expression.

Likewise, it cannot be that a university can punish a professor’s expression on the grounds that it offends students and thereby will make their learning more difficult. That is the primary justification for punishing Professor Shurtz.

If that is enough to justify suspending or removing a professor, it would provide a basis for doing so any time a faculty member participates in activities that make a significant number of students uncomfortable.

Under this rationale, campuses in the 1950s would have been justified in firing professors who were perceived as having communist leanings or in the 1960s could have removed professors who participated in the civil rights movement on the ground that such speech made students uncomfortable and interfered with their learning.

I, of course, am not arguing that free speech on campus is absolute. Campuses can punish speech that is incitement to illegal activity or that threatens or directly harasses others. Campuses also can engage in more speech, which long has been recognized as the best response to the speech we don’t like. There can be efforts to educate the community about the history of blackface. There should be debates about whether it is ever appropriate to use blackface even when advocating against racism in higher education.

But what campuses never can or should do is punish speech because it is offensive.

I would have hoped a law school faculty and a university president who is a lawyer and law professor would have recognized this. Unfortunately, what happened at the University of Oregon is all too typical of what is happening on campuses across the country where the desire to create inclusive learning environments for all students has led to punishing speech protected by the First Amendment.

Erwin Chemerinsky is dean of the UC Irvine School of Law.

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21 Responses to Another law school Dean castigates UO over First Amendment fail

  1. Publius says:

    Chemerinsky is the second most cited scholar in legal academic, the first Cass Sunstein (http://leiterlawschool.typepad.com/leiter/2016/05/ten-most-cited-law-faculty-in-the-united-states-2010-2014.html). He was prominent in the news when some conservatives tried to block his appt as dean at Irvine due to his liberal viewed on gun control, a woman’s right to choose, and other issues.

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    • One Wonders says:

      Yes, in addition to being a preeminent Con Law expert, Prof. Chemerinsky also knows how to build a top-caliber law school, work effectively with people of (sometimes hotly) differing perspectives, successfully resolve employment contractual disputes, overcome massive institutional blunders, and raise money without compromising integrity. See e.g. http://www.americanthinker.com/blog/2007/09/erwin_chemerinsky_hired_then_f_1.html

      One wonders whether President Schill is listening to the caliber of legal minds and leaders he needs around him. This incident could have gone so many other ways than it has. However, the good (and bad) news is that it is not over: there is still time for what Publius has called a serious display of “creative leadership.”

      Publius, given your references to Watergate, the Nixon administration, and 1970s geopolitics, let me ask you this: How could the UO administration pursue a course of “peace with honor” here, in order to bring this nightmare to an end and cultivate the conditions for a brighter future?

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      • Publius says:

        The fundamental mistake here was taking a problem that was—and should have remained–internal to the Law School, and dragging the whole University into it. By itself, the fact that a professor of taxation in the Law School does something stupid is no more evidence of a university-wide crisis than if, say, a professor of jazz band in the Music School did something stupid. Neither merits apocalyptic emails from Johnson Hall, portentous “investigations” by outside attorneys etc. Problems were compounded by the fact that the Law School is currently a singularly dysfunctional community, creating the impression that its toxic faculty/student culture is typical of the University generally. I suppose it’s possible that if a jazz band professor did something stupid, the professors of trumpet, piano, and flute would immediately write a bilious letter demanding their resignation—but somehow I doubt it.

        Things need to be pushed back to the Law School, where it belongs. The best thing Schill could do is immediately announced the appointment of a new Dean of the Law School, with a proven track record on both free speech and diversity. The analogy here would be Bush’s replacing Rumsfeld with Gates—acknowledging, without explicitly saying so, that things were totally screwed up. Another precedent, if that’s unlikely, is the appointment of Howard Baker in the Iran-Contra scandal: someone universally respected and liked who can be given de facto managerial control. In the Law School case, put them in charge of “transition” until the new dean comes along. Margie Paris served exceptionally as interim Dean during a previous episode of conflict, so one possible choice (despite her signing the “resignation” letter, which I’m sure she now regrets).

        Finally, Schill needs to remind people that University policy on freedom of speech and academic freedom is not determined by a Portland law firm specializing in employment law. It’s not determined by a provost on the way out, either. He should say that the first task of the new provost will be to initiate a serious discussion of the issues raised by this incident, to clarify the University’s commitment to these cherished values.

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  2. dog says:

    I will second the endorsement of Chemerinsky; his recent spate of columns in the NYT on a variety of legal issues, including the public trust doctrine and climate change, are generally thoughtful and place on firm legal foundation. As near as I can tell there are three levels of outrage at Shurtz

    1 – the typical UO over reaction to anything
    2 – that no professor should be that stupid
    3 – that she was offensive (deliberate or not doesn’t seem to matter)

    ON 1, can’t do shit about that

    ON 2, I am living proof that professors are stupid

    On 3, This is Chemerinsky point – this is not a firing offense

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    • UO Matters says:

      She’s not being fired.

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      • dog says:

        I agree she is not being fired in the real world
        as that would make her lawsuit against the UO iron-clad – my point was that I believe people want her fired because she did something offensive …

        Those people need to take more classes from economics professors …

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        • Publius says:

          Her case is iron-clad already. She can sue for tortious interference with a contract–that the adm, by its improper actions, had made it impossible for her to do her job. Russ Tomlin publicly attacked a senior prof some years ago when he was vice provost, the professor threatened the adm with this action, the adm acknowledged Tomlin’s stupidity and quickly settled with the prof. The current adm should do the same with Nancy and let us move on.

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          • dog says:

            agreed and thanks a lot for bringing back the Tomlin memory. I suppose some day soon I can compile the top 10 stupidest blunders made by the UO (it will be hard to narrow down to 10), but I suspect the Tomlin appointment will be one of them.

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  3. honest Uncle Bernie says:

    I’m no legal scholar, for what that’s worth. But by all means, let the legal academic scorn fall in giant buckets on this wretched drama at UO. Including the dean of law, the provost, and the president.

    I’m sure the last, at least, must be wondering about what has happened to his next step after UO. Well, it seems to be a tough place. At least he arranged to be well paid for being here.

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  4. thedude says:

    I wonder if in someway or another, had this happened at another school the overreaction would have been similar in the current political environment on most campuses. Shoot, if this had happened at NYU, it would have been on the cover of the NYT. Just look at how students have been up in arms over the names of old buildings on the east coast.

    Of course everyone not directly involved in the situation can advocate for free speech with no costs. But the PR pressure to come down hard must be pretty immense. Would anyone cave to that?

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    • noob says:

      Presidents of major universities are paid large salaries to be thoughtful leaders who use good judgment to resist pressure from deans and make careful well-reasoned decisions after considering all the angles … not to dive headlong into hot button controversies with knee jerk condemnations before knowing the facts. This episode is just very disappointing.

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      • Publius says:

        Absolutely right. One thing Schill might learn is that the president should never be the one leading the charge; its puts them in the situation Schill is in now–no negotiating room. It’s the error Woodrow Wilson made at Versailles in so personally identifying himself with a matter that, qua controversial, required flexibility.

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        • UO Matters says:

          What’s that make me? Lloyd George? Not that I’m against searching the Duck’s pockets.

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          • Publius says:

            You’re Clemenceau, the “French tiger”.

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            • UO Matters says:

              I’m afraid to ask how he died.

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            • dog says:

              An attempted assassination of Clemenceau was made in 1919 – he was struck by a bullet but it missed any vital organs. Here is his response:

              “We have just won the most terrible war in history, yet here is a Frenchman who misses his target 6 out of 7 times at point-blank range. Of course this fellow must be punished for the careless use of a dangerous weapon and for poor marksmanship. I suggest that he be locked up for eight years, with intensive training in a shooting gallery.”

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  5. Jim says:

    The controversy with Prof. Shurtz could not have come at a worse time for the law school with the dean on his way out; the school largely insolvent; declining enrollment, falling bar passage rates, etc. If the U of O cuts off the subsidies for the law school in 2019 (taking money from CAS to fund operations) then it could completely fail as an institution.

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  6. Peter Keyes says:

    I’ve recently been thinking about an incident ten years ago, when the student publication, The Insurgent, published cartoons deeply offensive to Christians. 91 UO students filed a grievance, claiming that the publication was “discriminatory, knowingly false, slanderous and egregious.” Despite the national outcry, President Frohnmayer took a strong stand for freedom of the press,and that incident quickly receded from the collective memory:

    https://www.insidehighered.com/news/2006/05/23/oregon

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    • UO Matters says:

      Thanks, I’d forgot about that. Frohnmayer quite enjoyed getting the chance to publicly defend the importance of unfettered free speech. But my favorite Frohnmayerism (and there aren’t many) is still his letter to the Oregon Commentator regarding their “beery indifference to the law of defamation”. http://oregoncommentator.com/2009/11/17/david-frohnmayer-loves-the-oregon-commentator/

      (But maybe that’s only funny if you know how many reporters Dave threatened to sue for printing unflattering things about him.)

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      • Cheyney Ryan says:

        I would also contrast this with a case handled by Myles Brand. Also in the Law School, early 1990s: an instructor read a pro-gay rights poem in class on national “coming-out” day, students complained, the dean chastised the instructor, significant protests + demonstrations followed protesting homophobia. Brand’s response was to announce he would engage all the parties in discussion, both to determine the facts + whether people could be brought onto the same page. He approached it, that is, in the spirit of conflict resolution.

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  7. Peter Keyes says:

    Coincidentally, an article about a current installation by the artist Edgar Arceneaux, which explores an incident when Ben Vereen employed blackface to make a point, but which was misinterpreted when the network broadcast an incomplete version of the performance. Perhaps we could screen a version of this work here, to add some context and subtlety to our discussions?

    http://www.newyorker.com/culture/culture-desk/revisiting-ben-vereens-misunderstood-blackface-inaugural-performance

    https://listart.mit.edu/exhibitions/edgar-arceneaux-written-smoke-and-fire

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