Stupid and offensive Halloween costume & response from Law & Schill

10/31/2019: A Halloween reminder:

11/3/2016 update: 23 Angry Law Professors:

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11/2/2016 update: Law Dean writes alumni condeming professor and racism and bigotry, then suspends her from teaching. KEZI posts professor’s explanation and apology. It seems she is not a racist or a bigot – quite the contrary:

The KEZI report is here:

“I chose my costume based on a book that I read and liked—Black Man in a White Coat.  I thought I would be able to teach with this costume as well (or at least tell an interesting story).  When I asked my daughter who is at Brown Medical School the demographics of her medical school class, she said “they do not give those statistics out mom”, but later when she asked the administration, they said there was _not one black male _student in the class. She and others were outraged. She was able to get the administration to assign a portion of this book (the one where the black medical student was thought to be the janitor) out to students.

I am sorry if it did not come off well.  I, of all people, would not want to offend.

Prof. Shurtz”

Dean Michael Moffit’s email to Law School Alumni. He’s opposed to bigotry and racism, for “the safety of all concerned”, and confused about taking time to learn the facts before suspending a professor:

From: University of Oregon School of Law <lawdean@uoregon.edu>
Sent: Wednesday, November 2, 2016 3:02 PM

Subject: Message from the Dean

November 2, 2016

Dear Oregon Law Alumni and Friends,

With great frustration about the circumstances that compel me to do so, I write to share with you a message that went out late last night from the President, the Provost, the Vice President of Equity and Inclusion, and me.

As you will read, a University of Oregon School of Law faculty member wore a Halloween costume that included blackface at a private, off-campus party attended by UO faculty members and students. This matter has been turned over to the Office of Affirmative Action and Equal Opportunity.

This action demonstrated racial insensitivity in a way that is inconsistent with our school’s values, and wholly unacceptable for this institution. We will follow the university’s processes for determining whether the act violated university rules. We obviously don’t know the outcome of that process and it would be inappropriate to speculate. In order to ensure the safety of all concerned and the smooth operation of the law school, I have placed the faculty member responsible on administrative leave pending resolution of the AAEO process.

As dean, I expect all members of the UO School of Law community to provide a welcoming, diverse and inclusive environment at all times. To be clear: We will not tolerate any form of bigotry or racism. Ever.

I have already heard from a number of you, and I am grateful for your feedback. If you would like to reach out to me directly, I would welcome hearing from you.

Michael

Michael Moffitt
Dean
Philip H. Knight Chair in Law
University of Oregon School of Law

Law School

11/1/2016 update: From what I’ve learned so far the professor in blackface was trying – albeit awkwardly and unintentionally offensively – to honor the author of “Black Man in a White Coat”. The NYT review:

… As a medical student at Duke, he feels underprepared among the privileged graduates of fancy schools like Harvard and Yale. (He attended the University of Maryland, Baltimore County.) On a scholarship for black students, he frets about being written off as a product of affirmative action.

In one chilling incident, a professor mistakes him for the handyman come to change the classroom light bulbs. Rather than making a fuss, Dr. Tweedy triumphs by earning the second-highest grade on the final exam and then declining the startled teacher’s offer of a job.

Such incidents of overt racism are rare, at least among the professionals Dr. Tweedy works with, but a lot of prejudice is flying around. Some patients flatly declare that they don’t like black doctors; even a black patient once snaps that he doesn’t want to be treated by a “country-ass doctor.” Dr. Tweedy feels annoyed at the uneducated black patients who sabotage their health and then feels irritated at himself for his annoyance. …

Good intentions gone awry.

11/1/2016: Maybe some enterprising reporter will now make a public records request for details on the various investigations and consultants reports on how Ms Daugherty has run UO’s Affirmative Action office, and ask how the UO administration has responded. Meanwhile here’s tonight’s email to campus from President Schill:

Students, Faculty, and Staff,

The University of Oregon has been made aware that a faculty member of the School of Law wore a costume that included blackface at a private, off-campus Halloween party that was attended by UO faculty members and students.

We condemn this action unequivocally as anathema to the University of Oregon’s cherished values of racial diversity and inclusion. The use of blackface, even in jest at a Halloween party, is patently offensive and reinforces historically racist stereotypes. It was a stupid act and is in no way defensible.

The faculty member involved has apologized for the decision and has expressed concern about its potential impact on members of the community. Although the party occurred outside of the faculty member’s official duties, the professor acknowledges that the costume choice was unacceptable under any circumstances.

We take seriously any complaints from members of our community, and we have referred this complaint to the Office of Affirmative Action and Equal Opportunity, which will determine whether this action could constitute a violation of university policy.

At a minimum, it illustrates the need for more training and dialogue on these critical issues. In support of this dialogue, the Division of Equity and Inclusion created a UO African American Workshop and Lecture Series to help increase understanding. Implicit bias training is now required for all faculty searches and this winter new trainings on micro-aggressions will be offered. We will continue to assess other trainings or opportunities we can employ to further educate our community.

Bigotry and racism have no place in our society or at the UO. Providing a welcoming, diverse, and inclusive environment for all is one of the university’s top priorities. We have been working for more than a year with our students to further these objectives. This incident makes us even more determined to ensure that no member of the UO community feels isolated or alienated on this campus as a result of intentional or unintentional racist behavior.

Sincerely,

Michael H. Schill, President and Professor of Law         

Scott Coltrane, Provost and Senior Vice President                                                          

Yvette Alex Assensoh, Vice President for Equity and Inclusion                                    

Michael Moffitt, Dean, School of Law

President to revisit professor’s free-speech discipline case

No, of course I’m not talking about President Schill’s decision to discipline Law Profressor Nancy Shurtz. Johnson Hall doesn’t make mistakes.

I’m talking about Rutgers President Robert Barchi and a professor who tweeted something stupid and offensive about New York City real estate, near as I can figure. InsidehigherEd has the report here. People complained. An extensive and expensive investigation of the twit apparently recommended some discipline. It also provoked the sorts of criticism that President Schill got for his handling of the Shurtz matter, such as this from Erwin Chemerinsky, now Dean of the law school at Berkeley:

… 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.

Barchi now seems to want to end things, and pulls out the boilerplate every university president should keep in their template folder:

“Like many in our community, I found that Professor ________’s comments showed especially poor judgment, were offensive, and, despite the professor’s claims of satire, were not at all funny,” he wrote. “At the same time, few values are as important to the university as the protection of First Amendment rights — even when the speech we are protecting in insensitive and reckless.”

Which should end things right there – but instead he’s going to appoint another committee.

Law Prof Nancy Shurtz explains why she is coming back to teach

Update: For an interesting contrast in institutional responses, see this story from tonight about how Cal State Fresno President Joseph Castro reacted to public anger about a professor who made disparaging comments about the recently deceased Barbara Bush:

Professor Jarrar’s conduct was insensitive, inappropriate and an embarrassment to the university. I know her comments have angered many in our community and impacted our students. Let me be clear, on campus and whenever we are representing the university, I expect all of us to engage in respectful dialogue.

Immediately following Professor Jarrar’s tweets last Tuesday, we carefully reviewed the facts and consulted with CSU counsel to determine whether we could take disciplinary action. After completing this process, we have concluded that Professor Jarrar did not violate any CSU or university policies and that she was acting in a private capacity and speaking about a public matter on her personal Twitter account. Her comments, although disgraceful, are protected free speech under the First Amendment of the U.S. Constitution.

UO President Schill took a less courageous approach to the Shurtz incident, dropping the problem on Interim Provost Scott Coltrane. Coltrane quickly passed to GC Kevin Reed. Reed then passed the problem, and ~$30K bucks, to an outside law firm whose weasley response is linked to below.

Here’s hoping the next time some UO professor does something ignorant and offensive our President will save us all some money, time, and embarrassment by simply copying the operative part of Pres Castro’s statement:

Professor _____’s comments/costume/billboard/fart/paper/art exhibit/concerto/regression coefficients/blog etc., although disgraceful, are protected free speech under the First Amendment of the U.S. Constitution.

Meanwhile,

Prof Shurtz in the RG here:

Once again The Register-Guard has chosen sensationalism over accuracy, this time in its April 13 story on my private Halloween party of 2016 and my planned return to the classroom.

The story, largely based on the University of Oregon’s flawed report, is replete with errors. I did not “wear blackface.” That term is reserved for derogatory, mocking, demeaning depictions of African-­Americans. At my private, off-campus Halloween party in 2016, I sought to challenge racism and provoke thought by depicting through my costume a book — Dr. Damon Tweedy’s “A Doctor’s Reflections on Race and Medicine.”

I sought to raise awareness of racism in higher education and the lack of diversity in the medical profession. Some who were not at the party but heard about it have expressed harm.

Although I intended no harm, I have offered (and again offer) my profound and sincere apology. I have learned much in this process.

However, the stories continue to misrepresent both the facts and the law — as has the university itself.

The so-called “investigative report,” prepared by a law firm commissioned by the UO obviously to reach a predetermined conclusion, was wrong on both facts and law — a matter of some concern in a university with a prominent law school.

Normally, faculty discipline would not be public information, but since the UO chose to violate that rule and publicize this, I now feel compelled to end my silence and justified in doing so.

I did not require students to attend my Halloween party, most students did not attend, and under the law school’s blind grading system I would be unable to reward or penalize students for attending. The report ignores the role of the university and law school administration in misrepresenting the event and stirring the pot, apparently for personal benefit of those doing the misrepresenting. Even the report admitted that I had no ill intent to harm or harass, yet it took the position that punishment can be meted out regardless.

The report ignored my long career at the law school as a champion of diversity, perhaps because I have been among the most critical voices of the law school and university administrations on that front over time. The report said nothing about the honor for which I am most proud: my nomination for the university-wide MLK Award in 2012 for contributions, beyond typical job expectations, that uphold and exemplify the ideals supported by Martin Luther King Jr.

The report also is wrong on the law: Under the university’s discrimination and harassment policies and under the law, only intentional discrimination and harassment can result in punishment, yet even the report acknowledges I had no such discriminatory intent.

Under university policy and federal law, punishable harassment occurs only if a person intentionally targets a specific individual (a student, faculty or staff member, etc.). As the report concedes, my expressions against racism did no such thing.

Furthermore, the report completely ignores the Oregon Constitution’s free-speech guarantee, which is more expansive than the U.S. Constitution’s. On the federal free-speech guarantee, the report ignores controlling 9th Circuit Court of Appeals precedents and relies instead on older, questionable precedents from the 6th Circuit (covering Kentucky, Michigan, Ohio and Tennessee) and other inapplicable law.

Lastly, the report misinterprets the university’s freedom of speech policy and altogether omits analysis of the university’s academic freedom policy.

In short, the report is wrong on the facts and wrong on the law, basically an exercise to justify the previous law school administration’s and university’s rush to judge and punish me.

Scapegoating me for the institution’s long history of racial tension and institutional failure is no way to solve the real problems that exist at the university. I will return to campus to live and teach the principles I believe are important in law and education: diversity and inclusion, accompanied by freedom of expression, due process, equal protection, impartial application of the law, and the use of the law to reveal the truth and dispense its direct byproduct — justice.

Nancy Shurtz holds the Bernard Kliks Chair at the University of Oregon School of Law.

Law Dean Burke does Q&A with students about Prof Shurtz

In an admirable demonstration of transparency she even had the Law School post it on their official twitter feed – although no photo of the wickedly funny (black) student who showed up in whiteface. This is in reverse chronological order, so start at the bottom.

  1. There is a curriculum committee that discusses all courses offered. Apologies, but there is a class in this room right now. I hear you, and thank you, all.

  2. Comment from Student: A lot of our frustrations are with Prof. Shurtz, who isn’t even here. Precedent in this matter doesn’t set a clear path for preventing a similar incident in the future, (return to faculty, take sabbatical, etc.).

  3. Res. : We could have had this conversation before Spring Break, but I wanted it now. It wasn’t clear from the agenda that this was the opportunity to talk about Prof. Shurtz coming back to teach class. Thank you to the UOLaw SBA, BLSA for getting the word out

  4. Comment from Student (3L in Portland, Pres. BLSA): The administration did not contact the Black Law Students Association after receiving 30 emails last year about this incident from the Dean.

  5. Comment from Student: What does diversity and inclusion mean to this law school community when the professor may not even understand the ramifications of her actions?

  6. Comment from Student: This professor is not held accountable to students. She isn’t here and should be here.

  7. Comment from Student: It’s not just that she’s coming back. It’s that she’s teaching a class that I would have to set aside my identity to attend.

  8. “I agree with about 93% of what you’ve said. The time is now,” Training for professors is part of our Diversity Action Plan and starts this summer. But, there is a lot of work to be done. Most cannot be done overnight, but it is being done.

  9. Statement from Student: I am really disappointed that change is not taking place now. I have had to explain environmental racism to other students and faculty. We need to make change now.

  10. Comment from Student: As a white person (1L), I am not as affected by the action Prof. Shurtz took as my colleagues of color, but I am disgusted by it.

  11. Q4: Please, say what the incident was. A4. “Prof. Shurtz wore blackface at a party in her home.” Questioner: The decision to apply makeup and a wig takes time and intention and planning. Others can intervene.

  12. A3: I am familiar with the opinions Prof. Shurtz has made in the press.

  13. Q3: Has Prof. Shurtz been educated about the difference between Blackface and cultural appropriation?

  14. Q2. How informed about the climate at was before coming here? (And how do you get sabbatical? I’d like one.)

  15. A1. The decision predates me and was made by the Provost before Prov. Banavar. What students have told me is that we () are more than 1 incident.

  16. Q1: You mentioned things about what defines Oregon Law, maybe to US News or law firms, but you also mentioned community. Does having [Prof. Shurtz] back in the classroom defining our community in a way we want?

  17. It defines us by the decisions we make, by the community we are, by what we choose to do. So, yes. It is a defining moment, and I look forward to working with you as we continue to define who we are as OregonLaw. —

  18. “Some of you might feel like not announcing [Prof. Shurtz’s return] was like sweeping it under the rug… Since that day, there is no sweeping it under the rug.”

  19. Dean discusses her decision to come to . “People are talking about the students, faculty, and staff and the great things we do in the world.” I came here knowing there was an ugly incident, too, but it did not stop me from wanting to be your Dean.

  20. “Imagine a world where we all looked the same. That would be a tragedy. “I know our school has gone through some tough challenges, and I look forward to learning more about it. “I want to be there to support , to support you, and to work together as a family.”

  21. “I have been told that we are much more than a traditional Law School, with more than a JD and LLM. We also have a Master’s degree program and an undergraduate program.” Within the context of a big research university, it means we can address the complexity of our world.

  22. Welcome to Provost Jayanth Banavar. “My job is really to champion your interests, to help you… and to do whatever I can to make things better for you.”

  23. The agenda was strategic plan, diversity plan, school climate and Q&A, but we’re changing that up due to student feedback. –

  24. Today’s is set to begin. Thanks, all for coming out!

Law prof Nancy Shurtz in the Oregonian on Halloween, free speech, diversity

UO Law Professor Nancy Shurtz has some hard-won and interesting thoughts on the intersection of Halloween, free speech, and diversity in her op-ed here.

…Halloween costumes have also been a hot-button issue on college campuses in recent times, brought into the fore by the case of Yale University lecturer Erika Christakis two years ago. Christakis, who was a residential overseer in a Yale dormitory, wrote an email to students opposing arbitrary restrictions on costumes, arguing instead for student self-policing and open dialogue. For her trouble, a faction of students branded her a racist for defending “offensive” costumes and demanded her ouster by the university. The Yale administration did little to buffer her from two months of relentless character attacks and harassment, after which she did resign.

I experienced my own Halloween ordeal just a year ago this week. I hosted a private party in my home, attended by friends, a few university colleagues, and some law students. …

… When free expression is tethered, administrators tacitly endorse the tactics of ideological bullies, the self-appointed dictators of truth, and cheat the larger student body that hears but one bellowing voice. Benjamin Franklin once wrote: “If all printers were determined not to print anything till they were sure it would offend nobody, there would be very little printed.”  This Halloween, let’s see through this masquerade of communicative suppression.

Nancy Shurtz is the Bernard A. Kliks professor of law at the University of Oregon School of Law.

Law dean who attacked Schill’s response to blackface incident gives nuanced view of best response to disruption of Schill’s State of Univ speech

Back in January, Erwin Chemerinsky, a well known legal scholar and at the time the UC-Irvine law school dean, published this opinion piece castigating UO President Mike Schill’s response to the Halloween blackface incident:

Worries about offensiveness threaten free speech on campuses

All too often campuses are forgetting one of the most basic principle of the First Amendment: Speech cannot be punished simply because it is offensive, even deeply offensive.

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.

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.

Chemerinsky is now dean of Berkeley’s law school, and today he and Howard Gillman of UC-Irvine have an op-ed in the Chronicle (gated if off campus), about speech that disrupts the speech of others. It uses the student protest of President Schill’s State of the University speech as an example of the sort of disruption that need not be tolerated, but perhaps should be:

Does Disruption Violate Free Speech?

When student protesters prevented President Michael H. Schill of the University of Oregon from delivering his State of the University speech this month, the group explained, “Free speech is the right of individuals and communities to express themselves without repression from the state. The students are not the state nor the repressors. Taking to the stage and using this platform was an act of free speech — not a violation of it.”

… Contrary to the view of these protesters, individuals do not have a right to prevent others from speaking. It has long been recognized in constitutional law that the “heckler’s veto” — defined as the suppression of speech in order to appease disruptive, hostile, or threatening members of the audience — can be as much a threat to rights of free expression as government censorship.

If audience members had a general right to engage in disruptive or threatening behavior by using loud, boisterous, or inciting speech, it would give any determined individual or group veto power over the expression of any idea they opposed. Only the most benign or inoffensive ideas would be expressible. It would empower people to believe, “If we can’t get the government to censor the speech, then we’ll do it ourselves.”

The only protections against the heckler’s veto are to require officials to make every effort to control the disrupters or to deter their efforts by treating the disruption as a punishable breach of the peace. Of course, it is possible that, despite best efforts, safety or public order cannot be maintained without calling an end to a controversial event. But this should be a last resort, only after exhausting all efforts to control those who are creating the threats against the lawful expression of speech.

… Importantly, however, prohibitions against disruptions also have their limits.

For example, protecting a controversial speaker assumes that the speaker has a preferred right to speak in a particular location at a particular time. When that is not the case — for example, in a true, open public forum on campus grounds, where anyone is allowed to be and to talk — no one speaker has any more rights to express a point of view than any other. If a Christian fundamentalist preacher were to use an open public space on a campus to preach against nonheterosexual activity, there is no reason why members of the campus community could not surround the preacher and enter into a boisterous back-and-forth.

… The reason recent campus controversies are different is that, in those cases, the campus has created a process whereby particular people (for example, student sponsors and their invited guests) are given a preferred right to have access to specific campus venues through a reservation process. Once the campus has followed its policies and assigned rooms for particular activities, then those who have secured the reservations have recognized claims to that space at those times.

In such a limited public forum, and in other places on campus where certain activities are assigned and recognized, those who have been given access to the space for certain purposes have the right not to be disrupted in that activity.

… Also, while opponents cannot disrupt a talk by an authorized controversial speaker, it is true that the speaker has no right to a cooperative or supportive audience.

Those who disagree are allowed to express their disagreement in ways that nevertheless allow the speakers to have their say. In the easiest case this includes the right to hold counterprotests or competing events, or distribute critical leaflets to audience members. But it also includes expressing disapproval as a member of the audience, as long as that disapproval does not undermine the rights of the speakers and their sponsors.

There are always judgment calls in cases of disruptive protests. We favor a more accommodating approach when protesters focus on administrators, for practical reasons rather than because of the First Amendment. Campus leaders have many avenues to express their views, and so an occasional tactical decision to shrug off the disruption is understandable.

But accommodation is much less appropriate when some members of the campus are attempting to prevent others from exercising their rights. In such cases, heckler’s veto principles argue in favor of strong campus rebuffs of the claims of the disrupters. Otherwise, vulnerable or controversial opinions will never be expressible on a campus. And that would represent an abandonment of foundational principles of modern American higher education.

Simply put, the right to speak does not include a right to use speech to keep others from speaking.

Supreme Court reaffirms our First Amendment right to be offensive idiots

The decision was unanimous. The Washington Post’s Eugene Volokh has the analysis here. Kennedy, Ginsburg, Sotomayor and Elena Kagan’s concurring opinion reads as if written specifically in response to the UO administration’s discipline of law school professor Nancy Shurtz:

The Government may not insulate a law from charges of viewpoint discrimination by tying censorship to the reaction of the speaker’s audience. The Court has suggested that viewpoint discrimination occurs when the government intends to suppress a speaker’s beliefs … but viewpoint discrimination need not take that form in every instance. The danger of viewpoint discrimination is that the government is attempting to remove certain ideas or perspectives from a broader debate. That danger is all the greater if the ideas or perspectives are ones a particular audience might think offensive, at least at first hearing.

I’m no lawyer, but this language doesn’t seem to give any support for the November 30th 2016 report from the UO General Counsel’s attorneys, concluding that the First Amendment did not protect Professor Shurtz, because she had engaged in speech that a particular audience thought offensive:

… In evaluating the event in light of the University’s policies against discrimination, it is important to outline the outcomes and impacts following the event, upon both the attendees as well as the student body. As stated previously, different guests had differing personal perspectives, so the range of responses varied accordingly. One point that was clear, at least before the event, was that most of the attendees knew Shurtz (setting aside the family members and plus-ones), had an appreciation for or understanding of her personality and her general intentions, and held her in esteem.

All the students interviewed made it very clear that the impacts of the event and the costume extend far beyond those students and individuals who were in attendance, and that the resulting environment at the school has been very negative and contentious. …

VII. CONCLUSION

Based on the interviews conducted and our review and analysis of the information obtained during this investigation, we conclude:

1. That Nancy Shurtz’s wearing of the costume at the stated event constitutes a violation of the University’s policies against discrimination. We further find that the actions constitute Discriminatory Harassment under those policies.

2. That the actual disruption and harm to the University resulting from Nancy Shurtz’s wearing of the costume at the stated event are significant enough to outweigh Nancy Shurtz’s interests in academic freedom and free speech.

Respectfully Submitted, Edwin A. Harnden Shayda Z. Le Barran Liebman LLP

UO hires Barran & Liebman’s Shayda Le, pleas for more time on Freyd lawsuit

From the docket here:

ORDER: Granting Defendant’s Unopposed Motion for Extension of Time to Answer 6 . Answer is due by 5/18/2017. Ordered by Judge Michael J. McShane. (cp) (Entered: 04/17/2017)

Attorney Shayda Le of Portland’s Barran Liebman law firm is the same lawyer our administration hired, along with partner Edwin Harden, to defend Shelley Kerr and Robin Holmes against the lawsuit from UO counselors Karen Stokes and Jennifer Morlok over then Interim GC Doug Park’s effort to get them to give the GCO Jane Doe’s confidential counseling records, during Doe’s lawsuit against UO over the basketball rape allegations. I forget how much we paid out to settle that one.

GC Kevin Reed also hired her and Harden to investigate the “Halloween party incident”. That report is here. The commenters were not impressed with it.

Meanwhile, Freyd’s lawyer is Jennifer Middleton of Eugene’s Johnson, Johnson and Schaller law firm. Middleton was one of Jane Doe’s lawyers.

Youtube: Chicago Prof Geoffrey Stone lectures UO Law School on free speech

Is free speech on campus dying?

If so, it’s still kicking. Friday’s engaging talk by Geoffrey Stone from Chicago Law laid out and put to rest the arguments against free speech and academic freedom one by one, then finished them off with his responses to audience questions about the increasing use of hate speech by conservatives, and safe spaces for our increasingly diverse students.

Free Speech on Campus: A Challenge for Our Times

Friday, February 17 at 4:00pm Continue reading

Can the administration fire Shurtz? Will they?

Not without a formal judgement by her peers following established procedures. In fact the administration can’t even punish her without that. Academic freedom is still pretty strong at UO.

See the “final investigative report” from UO’s employment law specialists Edwin A. Harnden & Shayda Z. Le of Barran Liebman, LLP, and the letter from Provost Coltrane posted here. Page 5 of the Harnden-Ze Report cites UO’s Academic Freedom Policy – signed by former UO President Mike Gottfredson, after months of negotiations between him, the UO General Counsel’s Office, and the UO Senate:

SECTION 2

These freedoms derive immediately from the university’s basic commitment to advancing knowledge and understanding. The academic freedoms enumerated in this policy shall be exercised without fear of institutional reprisal. Only serious abuses of this policy – ones that rise to the level of professional misbehavior or professional incompetence – should lead to adverse consequences. Any such determinations shall be made in accordance with established, formal procedures involving judgment by relevant peers.

Coltrane’s letter to the faculty does not even hint at the possibility that he followed any “formal procedures involving judgment by relevant peers” before issuing his personal judgement 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”,  or that he plans to do so. Yet that same sentence makes clear that Coltrane’s decision that Shurtz had engaged in “Discriminatory Harassment” was made after consideration of her academic freedom, so the above policy clearly applies. Harnden & Ze even put it in their report. Very helpful.

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.

RG Op-Ed: UO is right to insist upon cultural competency

I’ve just posted the beginning and end. Read it all here:

UO is right to insist upon cultural competency

Get over it!” “It’s no big deal!” “You’re too sens­itive!” “There are people with real problems in the world!” “Let it go and move on with your life!”

As an African-American woman who grew up in the segregated South and has spent the past 30-plus years in liberal Eugene, I’ve heard these messages all of my life — and they are now being played in stereo in letters to the editor regarding the recent blackface incident at the University of Oregon.

Well, let me add my two cents’ worth.

1) There are people at the UO experiencing a great deal of pain because of this incident. Understand that pain is not felt on a sliding scale. Only the person experiencing pain, embarrassment and disappointment can determine how much it hurt. Their pain needs to be respected.

2) The fact that life-threatening events are occurring in the world does nothing to alleviate the inappropriateness of a professor with more than 30 years of experience at a respected institution being unaware of the historical use of blackface, yet trying to stimulate a conversation on racial biases..

… 5) The fact that no one told her that her costume was insensitive during the party is understandable. It is common for people to be so shocked by insensitive behavior that they become momentarily speechless, especially if they have not had sufficient experience with confronting such egregious behavior and wish to avoid making a scene or offending a host.

… 7) I feel hope when I hear that some of the professor’s guests were able to recognize that the costume was inappropriate and had the will to speak up, and that university administrators heard them. This is the behavior of allies in the fight for racial justice. They should be applauded, not harangued.

8) I am hopeful that the university will use this as an indication that there are probably others who would benefit from diversity training. There are many people in liberal Eugene who cannot see the need for a well-meaning person who “loves everyone the same” to attend such training, but perhaps the professor would not be in this most undesirable position now if she had understood that good intentions don’t always work so well without knowledge and training.

Perhaps it is time for the professor and those rallying to her cause to “get over it,” understand that she harmed the institution that employs her, accept the consequences of her actions, realize that there are greater problems in the world and move on with life.

Martha Moultry of Eugene is a retired teacher and principal who has worked in the United States, Asia and Africa.

Orthodoxy & threat of institutional punishment is what the UO is now about

UO President Michael Schill is a former UCLA law school dean. UO General Counsel Kevin Reed is a former UCLA general counsel. Eugene Volokh is a rather well known UCLA law professor, whom Reed has asked for advice on the proposed TPM free speech restrictions. Quoting from Volokh’s UCLA webpage:

Eugene Volokh teaches free speech law, tort law, religious freedom law, church-state relations law, and a First Amendment amicus brief clinic at UCLA School of Law, where he has also often taught copyright law, criminal law, and a seminar on firearms regulation policy. Before coming to UCLA, he clerked for Justice Sandra Day O’Connor on the U.S. Supreme Court and for Judge Alex Kozinski on the U.S. Court of Appeals for the Ninth Circuit.

Volokh is the author of the textbooks The First Amendment and Related Statutes (5th ed. 2013), The Religion Clauses and Related Statutes (2005), and Academic Legal Writing (4th ed. 2010), as well as over 75 law review articles and over 80 op-eds, listed below. He is a member of The American Law Institute, a member of the American Heritage Dictionary Usage Panel, and the founder and coauthor of The Volokh Conspiracy, a Weblog that gets about 35-40,000 pageviews per weekday. He is among the five most cited then-under-45 faculty members listed in the Top 25 Law Faculties in Scholarly Impact, 2005-2009 study, and among the forty most cited faculty members on that list without regard to age. …

Here is the start of his column in the Washington Post today on the UO administration’s decision that UO law professor Nancy Shurtz’s stupid and offensive halloween costume “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.”

1. Last week, the University of Oregon made clear to its faculty: If you say things about race, sexual orientation, sex, religion and so on that enough people find offensive, you could get suspended (and, following the logic of the analysis) even fired. This can happen even to tenured faculty members; even more clearly, it can happen to anyone else. It’s not limited to personal insults. It’s not limited to deliberate racism or bigotry.

This time it involved someone making herself up as a black man at a costume party (as it happens, doing so in order to try to send an antiracist message). But according to the university’s logic, a faculty member could be disciplined for displaying the Mohammed cartoons, if it caused enough of a furor. Or a faculty member could be disciplined for suggesting that homosexuality may be immoral or dangerous. Or for stating that biological males who view themselves as female should be viewed as men, not as women. Or for suggesting that there are, on average, biological differences in temperament or talents between men and women.

All such speech at the University of Oregon will risk your being suspended or perhaps even worse. Orthodoxy, enforced on threat of institutional punishment, is what the University of Oregon is now about. …

Read it all here.

UO Law Prof not impressed by UO’s expensive lawyers

Diane Dietz has the latest in the RG:

STATEMENT FROM UO LAW PROFESSOR NANCY SHURTZ REGARDING IMPROPER RELEASE OF INFORMATION CONCERNING AN INTERNAL INVESTIGATION ABOUT A HALLOWEEN PARTY HOSTED IN HER HOME

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.

As the UO’s press release itself notes, the University is prohibited by law from disclosing personnel matters. But the press release and uncorrected Report act as a supremely public retaliation against me for seeking, even if clumsily, to raise issues of insufficient diversity in American professions. My attorney and I are evaluating our legal options.

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(Note to reporters and editors: Pending the submittal of our comments to the UO, out of respect for all involved we will not comment any further on this ongoing process.)