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.
sounds about right. UO has a very bad ear for this kind of stuff.
As I understand it, the professor is on paid administrative leave.
On what legal grounds do you think she would base a lawsuit?
Loss of future employment possibilities. Other than Trump Univ, where could she ever work again? Will she lose consulting gigs, book deals, etc.
This Professor will likely join tons of other staff, faculty and students who joined UO only to struggle with incompetent administration and pay dearly for joining the Ducks. Publicly humiliating employees, regardless of the appropriateness of their actions is unethical! So many of administration’s practices inflict absurd levels of stress on those unfortunate souls who cross their paths. It takes years to build a professional reputation but only seconds for these clowns to destroy it. It’s a shame the dysfunction has been going on for so long – within a public entity funded by students, federal funding and state tax dollars.
One might look to see if she’s been treated differently here than similarly situated persons (say, white men) who have engaged in similar or worse conduct within their professional capacities and duties – and note that she was engaged in off-hours, at-home, private activities. UO is not a private employer, and arguably does not have the same contractual reach re: private conduct and associations as a private employer might have. One might also look to see whether the actions by Mr Moffitt and the letter by Mr Schill et al. have contributed to a hostile workplace for Ms Shurtz. Not sure of the legal standard here, but her name has been spread through the media far and wide, and she is the target of at least two well-publicized campus petitions (including one from numerous UO law faculty) to resign. Interesting also here that the photographic evidence used against Ms Shurtz was taken in her home, and not necessarily taken or shared with her consent. What she did was approximately as offensive and hurtful as if she had burned her own copy of the Holy Qu’ran in her own home in order to try to spark a conversation among party guests re: Islamophobia and offenses to Islam. Extremely poor judgment, even if her intent was good and her actions and speech happened to be fully protected. In such a case, though, the only real remedy for the harm done is what she has done – she has tried in good faith to take responsibility and make amends. One would imagine Ms Shurtz will try to do even more. However, she wasn’t allowed to do this before official actions and electronically-circulated collegial condemnations calling for her resignation started poring forth. By the way, at least some of these denunciations and other communications likely used Oregon state-owned property of computers, email addresses, email servers, etc. A great irony her is that Ms Shurtz’s professional and personal reputations have been damaged, not simply due to her own poor judgment and ill-advised actions. There has been plenty of poor judgment and ill-advised actions to go around here.
Nail? Meet hammer…
The problem with this analysis is that it’s going to be hard to find someone “similarly situated” — as in wearing blackface to a party at your own home that you invite students and faculty to come witness. And a more apt analogy than burning the Koran, would be burning a cross.
Due to the nature of the invited guests, this was going to get out. That is in fact how it got out. The Univeristy was left in a very difficult situation — say nothing and very likely be taken as supporting such behavior, or say something and have everyone up in arms about the First Amendment and becoming armchair attorneys.
Oh, what bullshit to try to transmute this into yet another case of “white male privilege.”
I largely agree with the rest of the post.
On similarly situated employees, see http://www.rendigs.com/similarly-situated-comparator-discrimination-case-someone-supervisor/
As for the cross-burning comparison, it’s not the same and it’s not even close. See Virginia v. Black (https://en.wikipedia.org/wiki/Virginia_v._Black).
Law professors, though not necessarily the ones who signed the resignation-demand letter, are usually skilled in framing counterfactuals. This is especially useful practice when thinking about civil liberties and speech issues (for which there are few bright-line rules).
Let’s follow this time-honored legal education practice of using counterfactuals. Assume we’re not talking about burning a cross inside of one’s own home (which is probably protected speech – context does matter). Courts treat cross-burning which occurs outdoors not in terms of offensive speech, rather in terms of intimidation (which may be unprotected speech).
Qu’ran burning in the manner described in my original counterfactual might be offensive and hurtful (which is protected), but it’s not intimidating as a matter of law.
Now, if the location of the Qu’ran-burning were changed to standing in front of a mosque, then you probably also have an action for trespass (criminal and civil), maybe a nuisance tort, and perhaps a civil rights action for blocking access to a place of worship. But you still do not necessarily have intimidation, for which you have to establish intent and did-in-fact. http://www.huffingtonpost.com/2010/09/23/quran-burning-is-it-an-in_n_737110.html
Remember that Ms Shurtz did not seek to intimidate, and that her actions (which were unintentionally offensive, not intimidation) took place while in her own home off the clock. She did invite in guests from her workplace, and that does complicate things. However, university employees have work-parties in their own homes not only because it’s comfortable and relaxed, but also precisely because the space is off-campus and not subject to the same regulation as on-campus parties. That’s a longstanding tradition, and where one might look for sign of a similarly situated employee being treated differently.
Ms Shurtz might enjoy lesser privacy expectation because she invited work-related guests into her home, because people take pictures at Halloween parties, and if she did nothing to request that her guests not take and/or share pictures. One might also have to look at whether she counts as a public figure.
Thanks for this thoughtful analysis, Finch.
off-topic — but what is it with the signs I saw today at two parking lots on Agate — the one at 17th, the other across Franklin — saying “Arena Event Parking Only after 5 p.m.”
wtf does this mean?
That we get ticketed or towed if we work here and leave our car parked there after 5 p.m.? That we can’t come back in the evening and park?
Does it apply at all to people with a UO sticker?
The parking czars seem to have sprung this without any warning or explanation.
How very UO of them.
It always did bug me that they built the arena with no plans for how to handle the traffic and parking problems. I always thought it was kind of cheesy on everyone’s part, including Uncle Phil.
I hope they have a better plan for parking with the coming “Knight Campus.”
I wouldn’t bet the ranch on it.
Thanks Uncle Bernie, but I’m going to have to take off a few points for your failure to come with a way to connect this parking problem to the blackface incident. ;)
The city’s approval of the Arena was conditional on expensive parking mitigation measures. I’m not sure if the revenue stays with athletics, or goes to UO Parking. The after 5PM issue came up a few years back. Anyone know more?
I was previously chastised on this blog for talking parking when there were more important matters in the air. Hopefully I redeem myself today.
In the Columbia Garage (below Matt Knight Arena), those without a basketball season pass MUST vacate by the posted time.
In all other lots, there is no requirement to leave. If you leave and come back, contracted event staff (blue shirts) have been instructed to let you in if you are on University business if you have a University pass. If you show up dressed as a duck fan, they will probably make you pay. If you are dressed as a professor (e.g. elbow patches) or other person ‘at work’ and they attempt to make you pay, they are in the wrong. If they insist (and these people aren’t the cream of the crop) make sure to report it to the Parking department.
For what it’s worth, this hasn’t been ‘sprung’ on anyone. It happens every year for Arena Events and is listed on the front page of the parking website. As uomatters says, this was necessary to be in compliance with city and neighborhood parking requirements. The money goes to Athletics.
Consider your commenting privileges restored. My apologies. Why does athletics get the money for UO lots? Oh, right, it’s athletics.
It means our employer gets to force its employees to subsidize itself through selling us parking permits that only provide us with the right to compete with faculty, staff, and students for spots. Oh, and only when those spots aren’t being sold (again) to the public.
Way to throw your faculty under the bus, President Schill. Do you have any guiding principles besides self-preservation?
That first bit might be a tad harsh, but for those who have seen the photo of the professor dressed as Dr. Tweedy, the quote
is eerily appropriate. There’s more on wikipedia, including a reminder of how it ended:
The Professor’s blackface has been constructed with the finest, most elegant threads of racism. This racism is so deep and so subtle, that those among us who are unfit for their positions, who are stupid or incompetent, who are wholly insensitive and unprogressive, these people will not see it.
The “Professor R” letter is great. Thanks for the link.
Agreed! Thank you, Prof. R, for giving voice to my thoughts exactly–and, above all, for analysis, rather than knee-jerk emotionalism.
Is there a way a number of us faculty, who don’t want to individually stick our necks out, could come together and sign something, to say, “we agree with Prof. R”? I’m sure there’s a number of us.
Yes, I agree. I’ve been waiting for the opportunity to sign a counter-petition in support of Prof. Shurtz and her right to be as offensive as she pleases in the privacy of her own home (intentionally or not). I’m appalled, saddened, and even a bit frightened by the way our community has acted in this matter. The witch-hunt mentality referred to in previous posts is unfortunately precisely what this feels like to me. And I also find the issue of gender to be relevant — controversial provocations such as Professor Shurtz attempted are usually more acceptable to our society when they come from men.
I was previously quite impressed with Schill and his take-charge attitude. But that attitude seems to have not served him well in this case, as he painted himself into a very awkward and self-serving corner by his immediate, knee-jerk reaction. As an NTTF, I don’t feel I’m the best person to start such a petition of support, but I’d happily sign one initiated by a person with tenure protection.
U of T (that’s the University of Toronto) Prof argues why free speech is important (ignore stupid ad): https://youtu.be/43e_EF43Jis?t=286
Maybe he should be invited to give a speech on diversity of thought?
I have a completely off-topic question that I am hoping to ask UO Matters and the readership. I was not sure who or how to ask so posting a comment seemed like it might get the job done. sorry to off-topic.
Is there an “Ask UO Matters” page to get your thoughts and/or the broader community’s thoughts?
Does any UO office have the ability to reach into employees emails, through outlook or otherwise? FOIA request?
I recall reading that admins can’t be punished for reading an employees emails, but is there greater ability to reach in other than going to workstation when the computer is already logged in? Thanks.
The short answer is yes.
Are there certain rules set up to prevent inappropriate prying? Yes. Are they ironclad? Well…
It is safer to assume that anything you do on university hardware on a university network is traceable. This includes, but is not limited to, used of campus e-mail servers.
Of course there is. It is technically possible for many people to access various accounts, depending on the system being used (Exchange admins have full access and access granting privileges for/to anyone within their unit, for example). Non-exchange email have fewer admins and is more tightly “protected”. This is technical, not philosophical.
It continually amazes me that people in academia think they have any sort of expectation of privacy when using an employer’s email server. No one working in “industry” thinks this (cf. Clinton, Hillary). Not only can the university read your email, the correspondence of employees at a state school is also subject to disclosure under FERPA and public records requests.
So it’s technically possible. But is this a regular practice?! Is my boss regularly reading my email as standard practice? Can supervisors request access at a whim?
If the boss supervises the person who grants such access, no reason they couldn’t access at a “whim”. When the top administrators think accessing student medical records is “okay”, it doesn’t go far for lower & middle management to figure accessing employee email is “okay” — policies and procedures be darned.
this is really needs its own topic – the overall issue of email privacy and document privacy when housed on University servers.
The simplest assumption to make is that everything you do electronically is open access to everyone. On the plus side, the amount of data is so overwhelming that its extremely unlikely that any one would pay any attention to you at all.
It doesn’t take long to sift through, say, 650kilomails looking for incriminating information…
But no one would bother unless they’re fishing for incriminating information for some other reason. Even so, if you really don’t want your boss reading your email, don’t use your boss’s email server for anything other than your boss’s business.
“black Doctor costume” Are you kidding us here uomatters?
…And cue faculty bleating “Save Nancy”
A lot of double talk in Schill’s email.
I sure wouldn’t be caught dead talking about these issues publicly.