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

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.

###

(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.)

UO releases report on law Prof’s “black makeup”/blackface costume

From Provost Coltrane’s letter:

… the violation and its resulting impact on students in the law school and university outweighed free speech protections provided under the Constitution and our school’s academic freedom policies.

The report on this stupid and offensive Halloween costume was finished 3 weeks ago, and is now available here. Written by hired lawyers Edwin A. Harnden & Shayda Z. Le from Barran Liebman, LLP, it concludes that Prof. Shurtz committed a violation of UO policy against racial harassment.

Obviously Harnden and Le are not in charge of deciding what is a violation of UO policy, but the administration is accepting their conclusion that this is racial harassment and that its effects on the racial climate in the law school and at UO were so egregious that she is not protected by the UO policies on academic freedom and free speech, or the Constitution’s First Amendment.

The report spends a great deal of time on the effects of the incident. Its report on the administration’s response is less thorough. It does not address the possibility that the responses of the law school administration might have been in part motivated by a desire to retaliate against Shurtz for her opposition to the reappointment of Dean Moffitt, or the possibility that the responses by the law school administration, some of its faculty, and the central administration may have escalated the situation and increased the level of racial harassment felt by students, or the harm to the law school and UO.

The letter:

Dear members of the University of Oregon campus community,

A decision by Professor Nancy Shurtz to wear a Halloween costume that included black makeup on her face and hands at a party she hosted for UO law students, former students, and faculty members forced our campus to face some very difficult truths about racism, ignorance, and the state of inclusivity on our campus. Her costume mimicked the historic stereotype of blackface, and caused offense to many who witnessed it.

Today, I write with news of the disposition of the investigation led by the UO Office of Affirmative Action and Equal Opportunity as a result of complaints made to the law school following the event at her home on October 31. The investigation into whether Professor Shurtz violated any law or university policy was conducted by the Barran Liebman LLP law firm in Portland under the direction and guidance of the AAEO office and UO general counsel Kevin Reed.

Although the findings of such investigations are not usually released, in this case the public nature of the act, the resulting public outcry, its impact on campus climate, and the fact that Professor Shurtz already released a letter that identifies herself and her intentions, the university has determined that it best serves the public interest to release a redacted version of the report. A copy has been posted online.

Though the report recognizes that Professor Shurtz did not demonstrate ill intent in her choice of costume, it concludes that her actions had a negative impact on the university’s learning environment and constituted harassment under the UO’s antidiscrimination policies. Furthermore, the report finds that pursuant to applicable legal precedent, the violation and its resulting impact on students in the law school and university outweighed free speech protections provided under the Constitution and our school’s academic freedom policies.

In all cases where the university is advised that an employee violated university policy, the matter is reviewed under the appropriate disciplinary process. I have read the report, and accept its conclusion. Any resulting disciplinary action remains confidential under university policy.

My hope is that both the law school community and the broader campus community can shift focus from Professor Shurtz to the much-needed process of healing and growth. We all need to work together to make this university one that is inclusive and welcoming to all. It is only through that process that we will ensure that similar incidents do not take place in the future.

Respectfully,

Scott Coltrane

Provost and Senior Vice President

No news on investigation of Prof Shurtz for black Doctor costume

12/19/2016 update:

Still no update from the UO administration on Professor Shurtz’s suspension or their investigation of her. Meanwhile FIRE, the Foundation for Individual Rights in Education, has this:

Student Cleared of Baseless Charges from Anti-Lynching Art Display

ROCK HILL, S.C., Dec. 19, 2016—A Winthrop University student was found not responsible for violating two university speech codes after her involvement with a campus anti-lynching art installation. This outcome comes six days after the Foundation for Individual Rights in Education (FIRE) and the National Coalition Against Censorship (NCAC) wrote to the university president to ask that the charges be dropped.

“The art display was intended to create a conversation on campus about racism and lynching and it did exactly that,” said FIRE Program Officer Sarah McLaughlin. “We are hopeful that the result of this ordeal is more speech, not less, and that those who wish to continue the conversation can do so without their free speech rights being threatened.”

11/7/2016 update: Law School Dean explains blackface legal issues, criticizes Schill as unfair

Also see the open letter to President Schill letter from “Professor R”, in the Emerald here:

…. It is a sad testament to the current state of our “free” speech that even writing this letter seems too risky to pen under my own name. Those that would seek to invalidate my stance based on my race and background commit the same offense they decry — invalidation of whole persons based on race – this logical fallacy was once called ad hominem.

Sincerely,
Prof. R
College of Arts and Sciences
University of Oregon

Update: 

That would be the Dean of the University of Illinois law school, Vikram Amar. In a nutshell, he explains that students have more First Amendment protections than faculty do. On balance he says Professor Schurtz may well still be protected by it, and quite possibly by other law. Read it all, I’ve only posted the ending:

On Academic Freedom, Administrative Fairness, And Blackface

… My second observation is that the First Amendment is not the only potentially relevant legal constraint. Due process (are faculty clearly told what they cannot say so they are not sandbagged?), contract law (tenure is often a contract concept), and state constitutional protections may give public faculty members more latitude than does the First Amendment. And these extra protections may be perfectly appropriate if we do take seriously historical notions of academic freedom.

My last observation is an important one, and that is that critics of Professor Shurtz have themselves erred. President Schill’s quick characterization of Professor Shurtz’s use of blackface as being “in jest” is at odds with her own explanation, and we need remember that there has been no process yet to determine any actual facts. Shurtz’s 23 faculty colleagues assert that her “intentions [don’t] matter.” But whether we are interpreting the First Amendment or deciding whether someone should be required to give up her very livelihood, intent ought clearly to matter a great deal. After all, the reason (correctly identified by those calling for her resignation) that Shurtz’s actions warrant serious scrutiny is that they may undermine her (and the university’s) trust and credibility with students, alumni and the community. But wouldn’t students, alumni and the outside world want to know why she did what she did in deciding how much less they like and trust her and the law school? If she did it to mock African-Americans (or merely “in jest” because she is flippant about race), aren’t they likely to be much more angry and disaffected than if she did it to support the cause of racial equality (like the author in Black Like Me who feigned blackness to document racism), even if her attempt was clumsy, ill-advised and ultimately counterproductive? Again, no process has yet found the full facts (I have no familiarity with Professor Shurtz and am not vouching for her sincerity). But the idea that intent is irrelevant when heavy consequences like resignation are being considered runs counter to most areas of law and moral intuition. And lawyers – especially law professors who are teaching students how to frame arguments — ought to take care to appreciate that.

Update: Administration to start calling faculty to the office. Pres Schill emails campus.

Here at UO our famously incompetent AAEO Director is expected to start her investigation “soon”. Normally she waits until she’s missed a few deadlines and ignored a bunch of emails, then hires a high-priced consultant to cover for her. (See below for the news that UO has already hired an outside law firm for this.)

No word yet on what university policy the professor is alleged to have broken. Certainly not this one, which President Schill reiterated in his “Open Mike” email the Friday before halloween:

Let me ground this conversation in the unequivocal statement that the UO embraces free expression as one of its core principles. It is outlined in the policy on Freedom of Inquiry and Free Speech passed by the University Senate in 2010 and signed by President Richard Lariviere. The policy states the following:

“Free inquiry and free speech are the cornerstones of an academic institution to the creation and transfer of knowledge. Expression of diverse points of view is of the highest importance, not solely for those who present and defend some view but for those who would hear, disagree, and pass judgment on those views. The belief that an opinion is pernicious, false, and in any other way despicable, detestable, offensive, or ‘just wrong’ cannot be grounds for its suppression.”

My own views on free expression are entirely consistent with this strong statement of principle. As the inscription at the EMU Free Speech Plaza states, “Every new opinion, at its starting, is precisely in a minority of one.”

I’m still searching for the policy prohibiting offensive stupidity.

Should you be called into the AAEO office, you should be aware that Penny Daugherty’s job is to defend the UO administration, not you. Additionally, her staff are unfamiliar with the basics of university policies. If they tell you they just want to have a confidential off-the-record conversation with no repercussions, you’ll have to explain their obligations under UO’s mandatory reporting policy – they don’t understand it, or pretend that they don’t. My advice is get a lawyer and record everything. When Doug Park called me in over my “unlawful” decision to get a digital copy of UO’s Presidential archives I brought two, plus David Cecil from UAUO. Very helpful, especially since Park tried to ambush me by bringing Bill Gary from HLGR.

President Schill’s email today (11/7/2016):

Dear members of the University of Oregon community,

Last week was an incredibly difficult time for our university. The decision of law professor Nancy Shurtz to wear blackface at her Halloween party wounded our community, divided us, and exposed fissures that long existed under the surface. It is now my job as the leader of our school to not only help us heal but, more important, to move us to a demonstrably better place. The challenge for all of us is to recognize that the problem is deep and cannot be fixed with a Band-Aid. Instead, real healing, progress, and transformation will take time, persistence, and generosity of spirit.

It is not my role to attempt to discern the motives of Professor Shurtz when she chose her costume last week. Regardless of her intentions, what she did, by her own admission, was wrong. Indeed, one of the things that troubles me most about this incident is that a member of our law faculty in 2016 would not understand that the use of blackface is deeply offensive and an act of racism. As one of our students eloquently wrote to me:

“White America’s conceptions of Black entertainers were shaped by the mocking caricatures that played up the stereotypes of Black people being racially and socially inferior. No matter the intention, blackface is racially insensitive. At this point, there is no reason for anybody to be ignorant of the history of blackface. No one should have to explain why blackface is offensive or derogatory. This is well-documented history.”

University presidents are not supposed to get angry. But right now I feel both mad and more than a little sad. Over the past year, we have worked with our African American students and faculty members to make the UO a place where educational opportunity and excellence are accessible to all. We have taken the name of a former leader of the Ku Klux Klan off one of our buildings; we modestly increased the proportion of African American students in our freshman class; we created new pipeline and outreach programs; we launched a new African American studies cluster-hiring initiative; we created a new African American residential community; and we are planning new scholarship programs and testing the feasibility of a new African American cultural center. We also finalized our IDEAL framework, a plan to put in place a culture, processes, and system to promote diversity and inclusion throughout the entire university. I am excited about our progress, and I am not willing to let last week’s events slow our momentum and growth.

To the contrary, last week’s events suggest that we need to redouble our efforts to combat racism and ignorance on campus. We need to expand our work beyond students and reach our faculty, staff, and administrators. We must help our community comprehend how racist behavior can be baked into our society so deeply that some of us don’t even recognize it. And we must take actions to transform ourselves and make this school a better place.

My first instinct when faced with a problem is to dive in and fix it. But I have to admit, like my counterparts at most American universities, I know of no silver bullet. I do know that I, along with our entire academic leadership, will need to consult with our students and faculty members of color to understand their experiences and hear their ideas. Provost Coltrane and I will ask each dean and vice president to immediately begin conversations within their schools and departments with our faculty members, students, and staff members of color. The IDEAL plan calls on each school to develop plans on an annual basis. I will ask that each school and administrative unit accelerate the process and report back to me in 90 days with a set of steps they plan to take to promote diversity, combat racism in their units, and promote inclusion. I will work with the provost and our Division of Equity and Inclusion to ensure that these steps are taken and their impacts are measured.

With respect to the immediate issue of Professor Shurtz, as I announced last Monday, I have referred the matter to our Office of Affirmative Action and Equal Opportunity. That unit, which will be assisted by an outside law firm, will make a determination as to whether Professor Shurtz or anyone else violated any law or university policy. During the pendency of that process, the dean of the School of Law has placed Professor Shurtz on administrative leave to permit the law school’s educational mission to move forward.

We will provide Professor Shurtz with all of the procedural rights she is entitled to under the law and university policy. We cannot and should not prejudge that process and speculate about the outcome. And even as we condemn the use of blackface, we must consider that these actions may be protected by the First Amendment and our university’s tradition of academic freedom. While many of us feel that what Professor Shurtz has done is wrong, I also would ask that you leave space in your hearts, words, and actions for forgiveness and compassion. Although we all must be held accountable for our actions, I would also hope that we would ultimately be judged for what we do on our best days as well as our worst.

Finally, I am aware that some members of our community have received communications that are hateful, racist, and make them feel unsafe. I have read some of them and they sicken me. I have consulted with UO police chief Matt Carmichael, and we have not been able to find any credible evidence that they emanate from members of our university community. Nevertheless, I have asked the chief to deploy additional personnel both to the investigatory process and to ensuring that every member of our community is physically safe.

As we deal with this horrible episode, I ask everyone to take a deep breath and think about how their actions affect other members of the community. This is a time for us to come together to fight ignorance and racism, to promote inclusion. It is not a time to hurt each other, settle scores, or compromise our cherished values of free expression. This is a time for us to come together to make progress and not a time for us to be divided. We must support each other and treat each other with respect. We must give people the room to express their opinions and feelings, even if we disagree with them. We must not shy away from hard conversations or ugly truths, but we will not tolerate hate speech or threats—period. As president, I pledge that UO leaders will do everything we can to provide a safe and supportive campus environment for that to happen.

So let’s agree today that we, as a community, are going to use this challenging time as an opportunity to unite behind shared values and a common goal of fighting bigotry and ending prejudice on our campus and in our nation. Let’s agree that one person’s actions do not define the University of Oregon or the progress we are making toward becoming a more welcoming, diverse, and inclusive institution. By uniting as a community, we can move past this moment and become stronger and more resilient.

Thank you.

Michael H. Schill

President and Professor of Law

11/6/2017: University escapes lawsuit damages over halloween blackface suspension:

That would be Auburn University. Frat boys, not a law professor, and it was 2002. My uninformed guess is that if Law School Dean Michael Moffitt doesn’t lift Professor Shurtz’s suspension soon and offer a heartfelt apology UO will pay out at least the $800K the Bowl of Dicks cost us – plus billable hours, of course.

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AAEO removes all staff info from website, Resnick in charge, search to start soon

Thanks to a commenter for forwarding this email.

Dear All,

I’m writing to update you about changes and developments in the AAEO office. Over the last couple of years, we’ve seen a significant increase in the number of matters brought to the AAEO office and a corresponding increase in the level of expectation and demand for assistance. This is certainly an indication of the importance of the work handled by AAEO. At the same time this has put pressure on our resources and our capacity to respond. Looking at how the AAEO office will serve the changing needs of campus going forward, it is clear that there is a need to reconfigure and enhance our service model and strategic focus. This will include greater outreach and involvement in support of the needs of our campus community.

Our changing needs require a new direction for the AAEO office. We will be working to address immediate needs and achieve progress on our top priorities. In the coming weeks, I will launch a nationwide search for a new director of the AAEO office. I’m very grateful that Penny Daugherty will be staying with the department. In her new role as a senior investigator, Penny’s deep institutional knowledge and experience will be extremely valuable as we look to grow and enhance our capabilities within the office. We will also be welcoming an additional new investigator, Roni Sue, who brings valuable skills and experience and will serve as a much needed additional resource for the office as it continues to respond to the needs of our campus community.

I will continue working closely with everyone in the AAEO office as we move forward with new focus and direction, and I will keep you updated as developments occur. Sue and I will connect with Judy to ensure the Service Center has appropriate information to respond to inquiries. Please don’t hesitate to contact me with any questions or concerns you may have.

Best regards,
Nancy

Nancy Resnick
Chief Human Resources Officer and Associate Vice President
nresnick@uoregon.edu

Rumor down at the faculty club is that HR Chief Nancy Resnick is now in charge, and that there will be some long overdue changes in our office of Affirmative Action and Equal Opportunity:

Current website:

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Old website:

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University reinstates professor after apology for racially charged incident

That would be the University of Virginia. The WaPo has the details here. He claimed the #blacklivesmatter movement which protests illegal killings by the police was like the KKK which committed lynchings. He learned the hard way how stupid, offensive, and racist this claim is, and he asked to be taken out of class for a few weeks.

Here at UO there is still no news on the report on the Halloween incident, where a liberal law professor dressed up as a black doctor, with black make-up, in a stupid and offensive attempt to honor him and make a point about racism in the medical profession. We were told the outside law firm’s report would be finished several weeks ago.

Prof. Ed Coleman talked to Shurtz, thinks law faculty & Schill reacted poorly

11/13/2016: In a podcast with a Black UO philosophy student, posted on the Daily Emerald website here:

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Professor Coleman’s undergraduate work was in theater. He started the Ethnic Studies program at UO. He says the administration should have thought before condemning Shurtz. He connects white emcees making money off blackface to white coaches making money off Black basketball and football players.

He’s not impressed by the argument from the Black student in the interview that one professor wearing blackface at a halloween party in her own home, with a long history of supporting diversity at UO, trying to make an anti-racist argument, creates an unsafe space for students. Coleman talks about the difficulty of meeting the Black Student Union’s demand for hiring more Black faculty without first filling the pipeline with PhD students.

He believes that whoever sent the Shurtz photo to the newspapers shouldn’t have. He and the student seem to agree that Shurtz’s anti-racist intent matters. Shurtz has told Coleman that she has hired lawyers and will sue the university so that she can resume teaching. The student wants her to have a chance to talk to the students and explain her motivations. There’s more on Ed Coleman and Black history at UO here.

11/15/2016: Profs Ed Coleman & Ofer Raban school Dean Moffitt & 23 angry professors

Retired UO Professor Ed Coleman (English Lit) is still schooling us all in what it means to be a teacher. In the RG:

As a black child growing up in a southern town in Arkansas in the early 1940s, my father took me to several minstrel shows. A friend of his played violin in the pit band and gave him tickets. The shows, a major form of entertainment in the United States, were traveling throughout the South and had stopped in our hometown of El Dorado.

As always, the performers wore blackface, with the exception of “Mr. Interlocutor” (the director on stage), who was white. All the performers were almost always black men, except for the occasional times when black women performers also wore blackface.

As a retired English professor who taught black literature and folklore (including the cultural roots of Jim Crow and minstrel show evolution and influence), I, too, was initially appalled and taken aback after reading University of Oregon President Schill’s recent letter to the University community; seeing the published photograph of esteemed Prof. Nancy Shurtz, in costume and blackface further tweaked my concern.

However, and this is a big however, after learning about Prof. Shurtz’s account of her donning the costume, I realized she was attempting to show how many black doctors have been tragically trivialized by white people. She was holding and displaying a copy of the best-selling book “Black Man In a White Coat — A Doctor’s Reflections on Race and Medicine” by Damon Tweedy, M.D. This was a party in her own home with invited guests. After reading Nancy Shurtz’s academic profile, it was clear that she is a nationally eminent scholar whose teaching and scholarship are exemplary.

What I find troubling and painful is how quickly so many of the faculty and my former colleagues are ready to tar and feather her and run her out of the university. A reputation of decades blackened and bruised with blaring headlines and heated rhetoric in an uncritical rush to judgment. Shurtz did no immediate harm and I am embarrassed at the overwhelming display of instant but uncritical outrage directed at her with their online petition and various letters screaming to have her fired.

Please! “Methinks thou protest too much.”

Shurtz had no racist intent — just the opposite. My question is: Who took the photograph and why? And why post it, hiding anonymously, on social media? Was this “guest” trying to embarrass or damage her or what? Why needlessly cause deep personal pain, anguish and humiliation?

I am taking this stance because as a black man, I, too, could be subjected to unwarranted petitions and letters.

Edwin Coleman II, PhD., is an Emeritus Professor of English at the University of Oregon.

And the Oregonian editorial board thinks we need a straightjacket:

… But was Shurtz’ action malevolent? No. Racist? Unwittingly. Harmful? Yes, but not because it was so wrong-headed or because there was evidence offered by aggrieved individuals. Instead, the incident has become harmful to the brand of the law school, 23 of whose faculty members were so cowed by the event that they asked Shurtz to immediately resign. In shame. As an idiot. Significantly, as in: not one of them.

This is dangerous, hive-minded stuff. It carries the whiff of fascistic decrees that act, over time, to crush individuals and tamp down fruitful disagreement. Meanwhile, it coddles the privileged: faculty, law students and prospective law students, whose protection both real and promised places them in a padded world immune from even perceived discomfort. …

11/14/2016: UO Law Professor Ofer Raban teaches his Dean & 23 angry law professors

In the Oregonian here. An excerpt:

I do not speak only for myself at the law school when I say that the dean’s response, and the faculty’s letter, were a disgrace. This was a failure of leadership and pedagogy, and opposition to it within the law school was expressed from day one.

This regrettable Halloween event was a teachable moment, but it ended up teaching many wrong lessons. Surely, this was a moment to teach about racial sensitivity and awareness of history, and of what it means to live as a racial minority in this country. But it was also a moment to teach other valuable lessons for law students: Do not rush to judgment. Deliberate carefully, away from emotions running high. Consider all the relevant factors. And show compassion for human fallibility.

At a time of an emboldened pernicious racism, the refusal to recognize the distinction between malicious racism and a stupid but well-intentioned mistake is not only a moral and legal travesty, it is also fodder for the real enemies of racial equality.

In full:

Ofer Raban

On Halloween night, a University of Oregon law professor hosted a private party at her home attended by some faculty and students. She donned a costume representing an African American doctor, including a hospital gown and the coloring of her face.

The professor in question had a long record of advocacy for the rights of minorities. She was even nominated for the university’s Martin Luther King Jr. Award. In fact, she wore the costume to honor an African American hero of hers (Dr. Damon Tweedy, author of “Black Man in a White Coat.”) There seems to be no doubt that there was no malicious intent in donning the costume.

The reaction of the law school dean and some of its faculty was swift: The dean placed the professor on administrative leave and a majority of faculty members signed a letter calling on her to resign.

“We are angry,” proclaimed the letter, twice. “You need to resign. It doesn’t matter what your intentions were. It doesn’t matter if (your conduct) was protected by the First Amendment.”

The idea that intentions don’t matter when evaluating a person’s culpability — which appeared both in the faculty letter and in an email written by an associate dean and circulated to the students — is not just wrong but also contradicted by what law professors preach daily in their classrooms

Measuring individual culpability by reference to one’s intent is a foundational principle of our criminal law, our tort law, our contract law, or our constitutional doctrine. In fact, that principle — absent from primitive legal systems — is considered one of the greatest civilizing forces of our law.

For law professors to claim that intentions don’t matter is, frankly, preposterous. (Even more ludicrous was the remark of another university professor, who wrote to the university president that the absence of a racist intent “makes it worse” in his view, because it showed ignorance and callous disregard for minorities.)

The event in question was attended by some students and faculty, but it did not take place in a classroom or even on campus. The costume was donned at an after-hours private party at the professor’s own home. This, combined with the fact that the costume was donned without any malice — to the contrary, in an attempt to celebrate an American hero — should have obviated any demand for giving up one’s livelihood, let alone a suspension. Moreover, let’s remember that we are dealing with a public university professor at a time that many of us fear might prove challenging to academic freedom.

I do not speak only for myself at the law school when I say that the dean’s response, and the faculty’s letter, were a disgrace. This was a failure of leadership and pedagogy, and opposition to it within the law school was expressed from day one.

This regrettable Halloween event was a teachable moment, but it ended up teaching many wrong lessons. Surely, this was a moment to teach about racial sensitivity and awareness of history, and of what it means to live as a racial minority in this country. But it was also a moment to teach other valuable lessons for law students: Do not rush to judgment. Deliberate carefully, away from emotions running high. Consider all the relevant factors. And show compassion for human fallibility.

At a time of an emboldened pernicious racism, the refusal to recognize the distinction between malicious racism and a stupid but well-intentioned mistake is not only a moral and legal travesty, it is also fodder for the real enemies of racial equality.

Ofer Raban is a professor of law at the University of Oregon.

11/7/2016: Law School Dean explains blackface legal issues, criticizes Schill as unfair

That would be the Dean of the University of Illinois law school, Vikram Amar. In a nutshell, he explains that students have more First Amendment protections than faculty do. On balance he says Professor Schurtz may well still be protected by it, and quite possibly by other law. Read it all, I’ve only posted the ending:

On Academic Freedom, Administrative Fairness, And Blackface

… My second observation is that the First Amendment is not the only potentially relevant legal constraint. Due process (are faculty clearly told what they cannot say so they are not sandbagged?), contract law (tenure is often a contract concept), and state constitutional protections may give public faculty members more latitude than does the First Amendment. And these extra protections may be perfectly appropriate if we do take seriously historical notions of academic freedom.

My last observation is an important one, and that is that critics of Professor Shurtz have themselves erred. President Schill’s quick characterization of Professor Shurtz’s use of blackface as being “in jest” is at odds with her own explanation, and we need remember that there has been no process yet to determine any actual facts. Shurtz’s 23 faculty colleagues assert that her “intentions [don’t] matter.” But whether we are interpreting the First Amendment or deciding whether someone should be required to give up her very livelihood, intent ought clearly to matter a great deal. After all, the reason (correctly identified by those calling for her resignation) that Shurtz’s actions warrant serious scrutiny is that they may undermine her (and the university’s) trust and credibility with students, alumni and the community. But wouldn’t students, alumni and the outside world want to know why she did what she did in deciding how much less they like and trust her and the law school? If she did it to mock African-Americans (or merely “in jest” because she is flippant about race), aren’t they likely to be much more angry and disaffected than if she did it to support the cause of racial equality (like the author in Black Like Me who feigned blackness to document racism), even if her attempt was clumsy, ill-advised and ultimately counterproductive? Again, no process has yet found the full facts (I have no familiarity with Professor Shurtz and am not vouching for her sincerity). But the idea that intent is irrelevant when heavy consequences like resignation are being considered runs counter to most areas of law and moral intuition. And lawyers – especially law professors who are teaching students how to frame arguments — ought to take care to appreciate that.

Balancing Freedom of Expression and Diversity on Campuses

An account of a recent APLU meeting on this topic, from Inside Higher Ed here. A snippet:

Page, the columnist, said, “I don’t want to call your generation coddled,” but went on to share an example of what he said “troubles me about political correctness.” He cited the reactions of students at Emory University in March when some students chalked “Trump 2016” on campus. Some students said at the time that they felt threatened by the chalkings.

“If there is anything that the First Amendment is for, it is political speech,” he said.

Gillman, of Irvine, offered three strategies he said he hoped research universities would pursue in the wake of the election:

  • “Make it as clear as possible that we are doubling down on the values we have of diverse communities of mutual respect,” he said. “The level of rhetoric in this campaign truly created threats and ignited a kind of hate” that needs to be opposed. “Let’s not be shy.”
  • Academics need to recognize that there are people in the United States “who feel that they are not being heard,” Gillman said. Whatever scholars may feel about Trump voters, they need to find ways to “reach across the divide of opinion.”
  • “We need to remember our scholarly mission,” Gillman said. That means looking at the political trends in the United States and Western Europe, and remembering that “democracies are fragile things,” and that they are challenged by “authoritarian strands” in many countries. Gillman, a scholar of the Constitution, said that universities and their professors “need to spend a bit more time thinking about the conditions that sustain democracy and those that undermine democracy.”

Associate Dean makes sensible non-partisan proposal for safety pins

Some simple common sense –  something which has often been missing from the previous statements on the halloween incident and the Trump election – from CAS Natural Science Assoc Dean Hal Sadofsky, here:

I’m not someone who normally embraces symbols, but I want all our faculty, staff and students to feel safe and to feel they belong here, and I feel a need to communicate that. This is even more important at this moment. There is a lot we all try to do already to make this campus safe. But there is more work to do—and also work to do to help people feel safe, which is not quite the same thing.

This past summer the electorate of the United Kingdom chose to exit the European Union. That campaign, like the presidential campaign that just ended, featured nativism, white nationalism, and rhetoric that denigrated and dehumanized huge sectors of the population. The immediate post-election period included countless incidents of hate speech, threat, harassment, and sometimes violence aimed at immigrants and people of color. Those who wished to stand up and be counted as proponents of inclusion (regardless of their feelings about Brexit) chose to identify themselves by wearing a safety pin—code for wanting people to be safe.

Wearing the safety pin showed that you were a safe person to sit next to on a bus, walk next to on a street, and to have a conversation with. Wearing the safety pin showed that you were opposed to racism and wanted all members of your community to feel they belonged and to feel safe. It seems strange to have to identify oneself as explicitly opposed to racism and sexism, but perhaps this moment requires it. The events of the past weeks, coupled with the language of the presidential campaign, don’t send a message of safety and belonging. It feels vital to signal that we stand with the members of our community from other nations, people of color, immigrants, and everyone else who may feel targeted.

I’ve now heard stories (mostly second hand, some first hand) from people who feel frightened, and others who feel unwelcome. I try to imagine, for example, being a first-year undergraduate from overseas who may believe that half of the “white” faces on campus want them deported, or being an African American faculty member on a campus that has experienced two incidents of blackface in less than two weeks.

I will be wearing a safety pin on my clothing today. It is a tiny gesture and can’t change the behavior of bullies or those determined to harass others. But if widely adopted and understood, it could help people who feel isolated know that they belong. It is a way to express alliance with the forces of tolerance and inclusivity. As I wrote above, I’m not someone who usually chooses symbolism, but I feel the need for a symbolic gesture in the aftermath of the election and of incidents intended to make some of us feel uncomfortable and unsafe.

If this idea resonates with you, please follow suit! I’ve brought 400 pins, available in the CAS Dean’s office (114 Friendly) if you wish to pick one up. Andrew has ordered another 2,500 that we hope will be available sometime Monday.

Hal Sadofsky, Associate Dean for Natural Sciences

Count me in. OSU President Ed Ray also had a good statement:

Faculty, staff and students,

Many members of our university community are experiencing a range of significant, heartfelt emotions following Tuesday’s election.

Several faculty, staff and students have shared with me that they fear for their future and the futures of family members and friends, especially people from diverse backgrounds and identities. Other members of our community are expressing joy about political change.  Each of these emotions is personal and powerful.

As members of our university community, we must care for each other and support one another despite the turmoil of the moment. If you are in need of assistance or would like to talk to someone about what you are experiencing, and are a Corvallis student, please visit the Student Affairs Student Resources website at http://experience.oregonstate.edu/resources. OSU-Cascades students should visit http://osucascades.edu/student-wellness. Employees needing assistance may utilize the OSU Employee Assistance Program by confidentially calling 1-800-433-2320 at any time or by calling the Human Resources Department at 541-737-3103.

I ask you to join me in looking ahead.

At this moment of national transition, we reaffirm that Oregon State’s mission of inclusive excellence in teaching, research, and outreach and engagement has not changed. OSU’s mission to promote economic, social, cultural and environmental progress for the people of Oregon, the nation and the world remains essential, and we will not realize our vision for the future unless we find common ground with those around us and unless we persist in this effort.

Since its founding, this country has overcome division and uncertainty by people coming together to address challenges, by respecting differences, and by demonstrating compassion and leadership.

This is the 56th presidential election in our nation’s history and every transition of leadership has occurred peacefully. The need for us to support each other, celebrate our diversity and promote the success of every member of our community and America remains unaltered. This is at the core of who we are and how we need to go forward.

On Wednesday, I saw impressive, moving and peaceful evidence of this America among us as dozens upon dozens of OSU students gathered in the Memorial Union quad throughout the day, and where approximately 400 students and community members marched through the evening on campus to call for an end to hate and to focus on our common humanity.

Let each of us help and serve one another. Let each of us help bring America together, while we count on and challenge all of our country’s leaders to do the same.

Going forward, I encourage you to stay engaged in our nation’s political process and lead your own lives in ways that reflect our common values as a community.

I am here to help, care and, with you, lead forward.

Edward J. Ray, President