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
Say what you will about meager pay raises, but when my colleagues can take something I did at my own home and turn it into a nationwide scandal, try to get me fired, dragged my name through the mud and then I am the one who violated a harassment policy????
Is this place completely falling apart from the inside despite big academic gifts?
dude, it’s becomng a madhouse. It’s nothing like when I came here.
It used to be you could sit around with colleages from all different departments and have a discussion of many controversial things. Even with administrators!
Now, the academic terror is setting in. I don’t use that word lightly.
I hope the professor, whom I don’t know, does not get forced out.
If she does, I hope she wins the mother of all lawsuits. And gives UO the spotlight it will deserve.
First, I would like to remind people that she purposely put on blackface and invited current students to her home to see her in blackface. If it were a private party where Shurtz had no intention of seeing a student, I would have more sympathy for the ‘in her own home’ argument. Since she invited students to her home and purposely dressed in blackface so those students could see her, the argument isn’t as strong because she’s blurring the line between work and private life.
Second, there is a massive difference between discussing controversial topics and putting on blackface. Talking about blackface and doing it are two different things. As an Black UO alum and former student of Shurtz I can honestly say that her decision to wear blackface would make me want to drop out of her class, but if she simply wanted to talk about the subject, I probably wouldn’t really bat an eye. In fact, if I were to have attended that party, I would have simply walked out as soon as I saw her.
Third, could someone please explain how Shurtz’s right to wear blackface is protected under the doctrine of academic freedom? Freedom of Speech and privacy I get, academic freedom seems to jive with the fact that the ‘lesson’ took place in the privacy of her own home and not the classroom.
The reasoning and conclusion of the report–and the provost’s acceptance of it–go beyond this single case. They will have an impact on future cases and on the ways people teach and speak and act in order to avoid punishment and on the ways they have available to defend themselves when accused. It appears to me that the threshold for what counts as discriminatory harassment is now set very low, and the ability to appeal to academic freedom in these kinds of cases has been greatly diminished. The consequences will be felt.
Well, if a teacher doesn’t plan on teaching a class in blackface or wearing an SS uniform during class, what is the fear? The school is not punishing her on her decision to have a discussion about sensitive topics, they are punishing her because she decided to wear blackface. Now, if the argument is that she shouldn’t be punished because it happened in her own home, that’s a separate argument. Still, if you’re going to tell students that they must accept professor doing blatantly racist things, there should be an explanation as to why the freedom to do these things are important to the education process.
But was it “blatantly racist” when her intention was exactly the opposite? Yes, ignorant; yes, naive; yes, stupid; yes, hurtful…but if she were truly trying to bring attention to racism in the medical profession, which seems indisputable, and if her apologies to her students and community were sincerely made, can’t she be forgiven and treated with compassion? I don’t mean to diminish in any way the hurt she may have caused – that pain is real. I just think the administration is culpable for immediately crucifying her publicly without full knowledge of the situation, which, as I read in the report, clearly aggravated the tense situation at the law school.
miki-
Consider this scenario: let’s say there is a woman being emotionally abused by her boyfriend. My advice to this woman is, “Stop letting him talk to you like that and stand up for yourself, you stupid whore.” It doesn’t make sense to give me a pass on emotional abuse just because I’m trying to prevent emotional abuse.
Finally, it’s not the faculty that aggravated the situation, it’s the picture of her in blackface combined with the sheer number of people who feel that minority students are overreacting to the situation. Think about it, if you’re regularly being told you’re overreacting (as is the case with many minority students in the Law program over this), you’re going to get mad because you’re feelings are being dismissed. I don’t have a problem with the people who say she shouldn’t be fired, I do have a problem with the people who say Black students are overreacting because they are mad at her for doing blackface.
Did anyone expect anything but a CYA move from U of O?
“Did anyone expect anything but a CYA move from U of O?”
What else *should* one have expected? Would you have not done exactly the same in the admin’s shoes?
Wow, the offense, if such it be, trumps academic freedom, even trumps the Constitution! (fitting juxtaposition of words?)
And they yak all this blather about free exchange of ideas, blah blah blah.
I’ll tell, anyone who says anything about a controversial topic — say, race — is risking their head at UO. This place deserves to become a laughingstock and made an example.
I’ve now lost all respect for Schill and Coltrane.
I wonder if Dave Frohnmayer, proud First Amendment advocate,is rolling in his grave?
The war between safe spaces and free expression will not end soon. One thing we can tech the students is that the world is not one big liberal arts college campus. You can’t hunt down and punish everyone that offends you.
Oh and ‘I hit it first!’.
I teach some courses which include discussions of controversial issues. These discussions are sometimes difficult—difficult for students to listen to and sometimes challenging for me to control. My intent is to let everyone have a say, to explore the issues carefully from every angle, to correct ignorance, to examine when prejudice or implicit bias might be affecting us, and to conduct the discussion as a way of modeling how to work through a controversy in which there are very different perspectives and lines of reasoning. I do have ground rules relating to respect, and I do check with students at the end of the discussion to see if anything important has been left out. However, the difficulty of some of these discussions does sometimes fall on some groups more than others—not always the same group, but the difficulty is not so neatly divisible that it can be distributed perfectly equally. I rely on my training and research and my experience to do this work as well as I can.
However: If, despite my intent and my conscientiousness and my knowledge, a group of n students is made uncomfortable by these discussions, and its discomfort becomes known, then it appears—from this report and this decision—that I can be found guilty of discriminatory harassment—despite my intention and my best efforts and my knowledge and experience.
The upshot for me is that it would be imprudent—it would be potentially self-destructive—for me to continue to conduct these discussions in my courses. When the risk is now so high, why gamble? In the past, I had assumed that the university would protect me, would stand fast for academic freedom. This belief seems no longer to be grounded.
I hope that someone can show me that my reading of this report and this decision is wrong.
Bob, I think you get it and you get it right. I hope you have tenure. Even that is clearly not necessarily protection. Especially if you don’t have tenure, my advice would be to shut up. Unless you can afford not to.
Bob, I feel for you. I used to teach a “sensitive subject” at UO Law and watching this unfold from afar, I am beyond grateful to have found another institution.
The report commissioned by the UO notes quite carefully, based on many interviews, why the incident was covered under anti-discrimination policy that the university is obligated to uphold, and why those obligations applied even though the event was not on campus.
Several students enrolled in Professor Shurtz’s class reported that they felt obligated to attend the party, as Professor Shurtz extended invitations to students using the class listserves and in class.
There is no private ‘right to be hostile’ that exists in this case because of the ways the invitations were extended to students in particular and because many persons interviewed at the party report shared the same account of the hostile environment created at the party.
In the same way that faculty can be held accountable for incidents of personal harassment (including sexual harassment) outside of the formal workplace, they can also be held accountable to applicable anti-discrimination laws in cases like these.
University faculty cannot be exempt from these laws simply because they declared their intentions were good. Indeed, there is a long history in the application of anti-discrimination laws in which those who wish to exempt themselves from the law do three things:
1. Declare a private right to discriminate with which the state/employer/institution cannot interfere. (The “it was at her house” defense.)
2. Declare that because the offender’s intentions were good they should be exempted from the law. (The “she was trying to educate others” defense.)
3. Wholly ignore (or dismiss) the impacts on those persons (especially those who have less power) who were affected by the act or to mock the accounts of those impacts (the “stop your whining about safe spaces” defense).
To be sure, free speech and due process questions must always be deliberated seriously. But one should read the report carefully before determining that such deliberations and care did not take place.
It seems far better to acknowledge that discrimination can and does take place at this university (as it does across higher education) and to devise thoughtful, legally sound, and substantive processes to address it.
Students at this university are legally entitled to protection from discriminatory environments. Many hundreds of civil rights activists died so that such laws exist. Even at a halloween party hosted by a well-meaning faculty member,
those laws still exist.
And given how absolutely rarely anti-discrimination laws are ever enforced in practice at our university, in contrast to how often people experience such conduct, this process should not be dismissed out of hand.
Dismissing such processes in this way risks sending a message to those who experience such conduct, essentially telling them: “Get over it, don’t report it, stop whining, and don’t ever restrict my rights to say what I want, regardless of how it affects you or your civil rights.”
Is that how we want our students to feel about this institution and about their faculty?
My own concern is not with the process—such processes are valuable and necessary. I believe that many would agree. Neither would I ever say that intent exempts one from the law—although I do believe that the way the idea of intent is being trashed here—even judged irrelevant—is itself unjust. Principles like intent should be balanced against other considerations. Neither would I mock people for feeling the way they do or ever say something like: “Get over it, don’t report it, stop whining, and don’t ever restrict my rights to say what I want, regardless of how it affects you or your civil rights.” Again, the way people feel has to be considered and balanced against other considerations. That’s what these processes are supposed to be for.
The issue is not the process or the fact that the professor acted wrongly, which she did. The issue is the reasoning and conclusion of the report and the provost’s decision to accept it. The issue is that academic freedom appears to have been drastically diminished by this report and this decision. Again, I hope that I am wrong here, and I hope that someone will point out where and why.
The process reproduces witch hunt dynamics and results. UO has the capacity and obligation to recognize that and protect Shurtz and others who engage in unpopular but protected speech and expression.
So our brave administrators decided to release the report, after they’d read it and got the result they liked. Are all faculty records now fair game for disclosure whenever it’s convenient for the administration?
So it seems.
It’s not uomatters wouldn’t have made a records request “in the public interest” if they had disciplined her without making the report public. I think the administration exacerbated the incident by rushing to condemn Professor Shurtz, but once they threw this into the public forum failing to proceed in that forum would have received just as much negativity as this.
That’s all quite aside from the conclusions reached in the report.
more fodder for the lawsuit …
It seems that our President has less of a commitment to upholding the First Amendment than our President-Elect. Shame!
Well this certainly puts the brakes on academic freedom and freedom of speech. I think the Halloween costume etc. was incredibly stupid and naive. Naive in terms of thinking people would use the occasion for a open discussion about racism etc. However, I do not agree that it constitutes harm. Yes people were upset. But upsetting people does not constitute harm in my opinion.
This decision has convinced me to sit back and just be quiet. This decision is basically censorship and its threat. Unfortunately the consequences will be people not engaged in conversation and debate. One politically correct vision which already has substantial root will overtake anyone who disagrees. Essentially cutting off and starving what I thought the university was about. Many universities are about that–but not the UO.
I wonder what the Senate leadership thinks about this.
I wish the senate would look into this–not this case, but the reasoning and the implications of the report and its conclusion. It is hard to see what weight academic freedom still carries. It appears to be very little. It also appears to be the case that professors have substantially weaker first amendment freedoms than ordinary citizens. I would certainly like some clarification on what protections I still have.
I also think the senate should review “discriminatory harassment.” There should be a way to persevere in our efforts to prevent discrimination, be inclusive, protect everyone’s right to full participation, and yet address the need to preserve essential freedoms. It appears that you can be guilty of “discriminatory harassment” even if you had no intent to discriminate, no knowledge that you were discriminating, and even if there was no specific victim of your act.
It appears to be the case that, without an appeal to academic freedom, if enough people are made uncomfortable by your speech or conduct, even if the discomfort is not immediate but arises only after the conduct becomes publicized and redescribed and interpreted out of context by other agents, you simply have no appeal.
I myself would not defend the professor’s action–it is, for me, nearly incomprehensible. But the report and its conclusion make the status of our academic freedom and first amendment freedom very muddy and uncertain. I would hope that the senate could shed some light on this and promote whatever discussions or legislation are needed to clarify things.
The Senate will look into this.
Yes, and as another writer pointed out, this “report and conclusion” will likely chill classroom discussions on any controversial topic that could be offensive — These are the types of discussions that are so very necessary to help young scholars expand their thinking and viewpoints.
Not gonna chill any of my classroom discussions on controversial topics and spring term will be now interesting because we get to have a discussion about
whether or not the social darwinists are now in charge in America. I imagine Herbert Spencer
is quite happy!
This badly written “investigate report” by three high-priced Portland lawyers begins by intoning: “These facts are undisputed.” Actually, no facts are disputed–unless you consider these matters of great moment: Did Nancy say she was “inspired by the book”, or did she say she “dressed as the book”, or did she say she “was the book”? Good Lord–get Clarence Darrow! With an earnestness reminiscent of the Benghazi committee, we are told that, at different times, to different people, Nancy gave “varying degrees of explanation” about her costume. Amazing–that certainly raises my suspicions. Half of this 29 page document is a cut-and-paste job of existing policies, of the type they teach in law schools to jack up the billing hours.
The only disputed question here is balancing discriminatory harassment against free speech. We wouldn’t need outside opinion if we had competent resources at the U of O; in fact, I’m not sure why we need outside opinion at all, given the U of O president is more distinguished than any of these lumpy legal advisers. In any event, as no significant facts are disputed, their report could have been five pages max.
And do we know the cost of all this? How much time did they spend nailing down whether it was “Trick or treat” or “Happy Halloween” that greeted you at the door. Instead of arguing whether Nancy “dressed like a book”, “looked like a book”, or “was a book”, couldn’t we have spent that money on actually helping students?
No question that UO needed outside counsel. Why the comment about Schill being better than the attorneys–are you suggesting that Schill should have done this investigation himself? You need an outside perspective for (1) resources (time and employment law competence), (2) elimination of bias (especially for optics) and 3) to protect the school if it gets involved in litigation. Sorry, but this is no-brainer governance stuff.
I’m suggesting they didn’t need an “investigation” at all, since there is no substantive dispute about the facts. Just ask people what happened. Schill + the U of O atty are perfectly capable of deciding themselves the issue of discriminatory harassment v free speech–as they will in the end. I think this is all about “protection”–“covering your ass” is another word for it. Schill made a terrible mistake in attacking Nancy without even talking to her; Coltrane has compounded things by releasing this “report” + his comments, a clear violation of confidentiality concerns. I don’t know who is advising Schill on this, especially on his initial (inaccurate) email; they are the ones that should be fired.
Coltrane’s reckless wording introduces an element of malicious intent against Shurtz. The law firm was hired for the purpose of defaming Shurtz and providing a thin veil of immunity for UO administrators who are mis-applying the anti-discrimination policies.
“I’m suggesting they didn’t need an “investigation” at all, since there is no substantive dispute about the facts.”
Whether the facts are disputed or not: how can one know what the facts are without an investigation? You need someone to sit down and actually talk at length with all of the parties involved. It seemed to me that the firm did a thorough job and brought in a lot of different perspectives (what happened at the party, what has happened since at the law school, etc.) I don’t see any way that Schill could have made an informed decision without the report.
“I think this is all about “protection”–“covering your ass” is another word for it.”
So what? That’s partly the President’s job. You’d do the same, wouldn’t you? Universities get sued all the time. You have to cover your ass; if you don’t, you’re plainly incompetent.
“they are the ones that should be fired.”
That’s just an absurd knee-jerk reaction. That’s not to say the admin has handled this perfectly–I’m sure there are tons of things they could have done differently–but this is a deeply heated, controversial issue with important interests on both sides, and I seriously question whether any of the critics here would be doing a better job.
This last paragraph seems very important to me. On the one hand, we have the principles of academic and first amendment freedom. On the other hand, we have real people, members of our community, many from underrepresented groups and groups that have been historically discriminated against who have been deeply and negatively affected by this incident. I can imagine the rounds I would have to have made and the consultations in which I would have to have engaged if I were Schill or Coltrane. I can imagine what I might have felt and thought if I would have decided to set aside essential liberties for the sake of those people–to reassure them that they were welcome and respected now and forever at the University of Oregon.
But great leadership would have found a way to reassure people and still stay faithful to the university’s essential values. Even the Register Guard got this right in its editorial. We will not be able to go forward on racial issues or any other important issues without freedom of speech and academic freedom. Without these freedoms, power will rule even more than it does already.
“But great leadership would have found a way to reassure people and still stay faithful to the university’s essential values.”
Thanks for your thoughts, Bob. Can you please elaborate on the sentence above? What did you have in mind?
In response to Roger (can’t find reply function below):
In response to Roger above: The best leadership resolves conflicts and addresses misunderstandings and offenses at the lowest level. So the first failure of leadership was a failure at the level of non-hierarchical democratic leadership or collegial or neighborly leadership. This happened at the party itself, where, no one openly confronted and spoke with the professor about what was happening—even at a one-on-one level. It is at least possible that the conduct and the incident could have ended there and that an apology could have been given and that a productive discussion could have taken place. Instead, an apparently surreptitious photo was taken and published, and stories were carried away and spread, and the conduct and its harmful effects were removed from their context and magnified and extended greatly in public.
The second failure was in the law school, where a kind of war seems to have taken place, and where it became impossible to hold any kind of discussion. Lines were drawn and sides were taken. At this point, an apology was inaudible, and people who disagreed seemed not to be working with or talking to each other.
I myself think that at this point the idea of a more formal investigation was appropriate. It allowed more discussion to take place, and it brought some process to the chaos and reassured people on all sides that things were not out of control. Unfortunately, the report that was produced seriously diminished 1st amendment freedom and academic freedom. It seemed to have no comprehension of how fundamental these freedoms are for the very idea of a university. It was also, in my own view, very weakly reasoned and flawed in several other respects. Since the university supervised this report, this was yet another failure in leadership.
The provost’s acceptance of this evisceration of academic freedom and 1st amendment freedom was the next failure in leadership.
The next question, posed by Roger, is: What could leadership have done? It could have done better at each of the points described above. But the ultimate and most difficult failure to repair is the acceptance of the diminishment of academic freedom and freedom of speech. The report should have been supervised toward a different outcome or rejected on the grounds that it underestimated the weight that should be given to academic freedom and freedom of speech. Before that judgment was announced it would have been necessary to have weeks if not months of discussions with affected parties. It would also have been appropriate to plan a year of events—conferences, symposia, presentations, film and theater events, and so on—around the ideas of the university and essential freedoms, the interdependence and tensions between liberty and equality, perhaps the history of blackface, certainly diversity, inclusion, and equity issues, and other related ideas. Tap into all the resources we have. Show everyone how to have a controversy respectfully, one that educates, one that leads people through real change and learning, one that is not easily “solved” because the relation between liberty and equality is historically unstable and always needs attention.
As things stand, this seems like a kind of dream. As things stand, it appears that the Senate will have to assume leadership for re-establishing the importance of the freedoms that are essential to the university and its health and its own leadership in society.
I was a dept head for six years, and handled in that time four cases of alleged harassment. In the current case, there were no formal complaints filed. This fact gave wide latitude to the AAEO on how to handle it, and yes, one way could have been simple discussions with the parties. So a “formal investigation” was not mandated. My experience was that things would be taken in that direction if there was dispute around the facts–again, I don’t see any dispute here. When I asked for inquiries as dept head, it never occurred to me that the point of an inquiry into alleged harassment was “covering my ass”–though it might have if I’d shot off my mouth as Schill did before knowing what happened. By the way, the standard sanction for an act of this sort, given the lack of ill-intent, etc. would be at most a letter in the file, more likely a stern discussion with the Dean. I suspect this is why the punishment is being kept secret, as it needn’t be, by the way. All this commotion leading to a sanction like that would be absurd.
How indeed does one “outweigh” the constitution and
its protection of citizens from their own stupidity?
It is called a balancing test, where, under certain conditions, different legal or policy vales are compared and decisions made about which is more important or where limits or constraints are observed.
Kind of like public order outweighs your right to yell ‘fire’ in a crowded theater.
How about public policy surrounding the right to be treated credibly when you say “doctor!” on a crowded plane.
http://www.usatoday.com/story/travel/nation-now/2016/12/22/delta-changes-doctor-identification-policy/95740518/
The focus should be on how black people are treated now, not how they were treated a century ago.
Right, which is why it was so disturbing to see a professor in 2016 claim to have no idea blackface was offensive and racist. Riiiighhht.
Please adopt a screen name.
I never really replied to this because I don’t know
what balance is – but it is discussed in the Vokolh column:
“Finally, the report reasons that university professor free speech is limited by the so-called Pickering v. Bd. of Ed. balancing test, under which government employee speech is unprotected if “the State, as an employer, in maintaining the efficiency of its operations and avoiding potential or actual disruption” outweighs “the employee’s interest in commenting on the matter of public concern.” There is good reason to think that the university misapplied this test here, especially in light of lower court precedent (see, e.g., these posts by Prof. Josh Blackman, Hans Bader, and Prof. Jonathan Turley, as well as Levin v. Harleston (2d Cir. 1992)). Given that universities are supposed to be a place for debate and controversy, the tendency of university professor speech to spark debate and controversy — even debate and controversy that many people find offensive or disquieting — shouldn’t strip it of protection in a university community, even if it might be seen as doing so in, say, a police department. But the Pickering test is notoriously mushy, as such “balancing” tests tend to be, so I’ll set it aside here.”
[…] Economics Prof. Bill Harbaugh, who runs the university watchdog blog UO Matters, isn’t buying the university’s claim that this party traumatized the law school so badly that […]
Perhaps the one thing everyone can agree on, whether one is more appalled by Prof. Shurtz or (like me) by the rest of the law faculty, is that there are much better uses of a few million dollars than UO’s subsidizing of the law school.
I’m going to give the University a pass on this one because they were also busy firing Penny, but when is the last time an administrator did any real work around here? Since we know we’ll just rent consultants to do any actual work that comes up, why bother paying these seat warmers? Why pay them yet again to leave, it’s not like we were in any danger of them ever making a decision?
According to the report, everyone at the party was uncomfortable with Schurtz’s appearance in blackface.
There were faculty at the party who saw the discomfort that students were displaying. WTF didn’t one of the faculty tell her?
Yes, why can’t we have meaningful dialog and treat each other as imperfect humans. instead of positional accusations, legalistic actions, and likely violations of personnel privacies.
Please use a screen name.
That is a great question, Concerned. Possible answers:
i. it’s not actually true that anyone was uncomfortable, and this response is made up after the fact.
ii. the law faculty at the party had no intention of either stopping objectionable behavior or of helping a colleague understand her actions. Instead, their goal was to maximize the “political” benefits of shaming and nullifying a colleague they dislike.
iii. the law faculty at the party would have liked to stop their colleague’s objectionable behavior or help her understand her actions, but were incapable of the basic interpersonal communication skills necessary to accomplish this, even though it’s really what any decent human being _at a social gathering_ should be able to do.
Am I missing any possibilities?
ii. Gets my vote for 80 percent of the weight. i. gets 10 percent as does iii.
I agree that these are all possibilities, but if the other faculty disliked Schurtz, as you suggest, why did they attend her party?
I have no knowledge of the factors at play but these are other possibilities you may have missed.
iv. “the law faculty at the party would have liked to stop their colleague’s objectionable behavior or help her understand her actions, but were incapable of the basic interpersonal communication skills necessary to accomplish this” given their shock at such a violation of well-understood social norms while guests in her home.
v. the law faculty present at the party are also lacking in appreciation of these issues.
vi. the most offended individuals were students who felt stifled by the socio-political constraints at play, especially as guests in the home of a person of authority with influence over their academic and professional futures, even more as they witnessed other faculty and alumni failing to call her out.
Thanks, @environmental necessity, for adding to the list. Some thoughts in response:
iv. is possible, but these are law faculty, who I would hope would not be so easily shocked into silence. All the people I know who’ve been to law school are capable and eager to discuss and argue. I can’t imagine them being so shocked they can’t do this.
v. If this is true, they and the university can’t make the argument that Shurtz is violating well accepted social norms that everyone is aware of.
vi. I thought of this, which is why I specified the faculty in my choices, and not students.
As I see it, the situation boils down to simply this: Mike Schill destroyed the career of a tenured female faculty member, more or less single-handed.
She made an error in judgment. In his handling of the situation, he panicked–and so also made an error in judgment. But the power differential between them is vast. He gets to mobilize the entire institution to cover his butt and crush her. She is thus pulverized, while he coasts on self-righteousness (as ventriloquist behind the lawyers’ report, the provost’s email, and everyone else compelled to tow the line or keen to curry favor). I would be more outraged if I weren’t so profoundly sad.
How many other administrators and faculty have committed worse offenses, to be treated with kid gloves, due process, confidentiality, shielded from the court of public opinion, their indiscretions even hidden from their records so they can take a job elsewhere??
I hope she sues the pants off UO. But really, she shouldn’t have to. Her life–I can only presume–is destroyed, and embroiling herself in the courts for years won’t make it whole. Meanwhile, Schill makes millions as a matter of course and is beyond reprimand. Chilling. Depressing.
“Mike Schill destroyed the career of a tenured female faculty member, more or less single-handed.”
I don’t see it that way at all. Immediately after the photograph surfaced online, all sorts of members of the law community were calling for her to be fired. Current and former students were absolutely livid. (I talked to many of them online; some were even mad at the administration for putting her on leave rather than just firing her outright.) In addition, 23 of Schurtz’s own colleagues openly asked her to resign. Do you think their doing so had anything to do with Schill’s “panicked” response? I don’t. They were upset with her for damaging the entire law school community.
You ask, how many other administrators have committed far worse offenses, to be treated with kid gloves, etc. Do you have an example? Or ask this: Do you really think that if an administrator wore blackface to a party, that administrator would be treated any differently than Schurtz? I actually think the negative reaction toward him or her would be orders of magnitude worse than what Schurtz experienced.
I just don’t see how your “power differential” argument plays out here.
Roger – I have an example. When I was involved with others creating the Judaic studies program, I and several others were subjected to an anti-Semitic diatribe by the dean–who strongly opposed the program. This was reported to the provost, with a request for inquiry. The provost urged us in the strongest terms not to take the issue public, “in the interest of the university”. I agreed with no taking it public, by the way. The provost refused to investigate this particular incident but said it would be addressed when the dean underwent regular review–the next year. The dean resigned before that took place. Yes, this dean was treated totally differently than Schurtz.
Thanks, Publius. That’s really unfortunate that that happened, both with the dean and with the provost. Based on what you’ve described, that’s really reprehensible behavior and shouldn’t happen at the UO–or at any institution.
That said, I can’t fully connect with your last sentence. The instance you described was a relatively private among the provost, the dean, you, and several others. In your case, the provost had the opportunity–which he unfortunately took–to sweep the issue under the rug. But the situation with Schurtz is different. Before the matter even got to Schill, Coltrane, and Moffitt, it had already exploded into the entire community, and there was a large contingent of folks–many of whom are people of color–already calling for her firing. The administration had no choice BUT to publicly address the issue, and address it with deserving severity.
So in both the example you gave and here, I see the administration acting differently primarily based on the circumstances, rather than simply because it’s treating an administrator differently than a faculty member (though I’m open to the possibility that that’s a factor too). And unlike in your example, where the provost was totally wrong in my view, I think the administration IS trying to redress the harm caused, even if the approach is sub-optimal.
This Barran Liebman report hurts my feelings.
I’d like to pose some serious, nonrhetorical questions to UO Matters readers:
Everyone seems to be focusing on the harm done to Nancy Shurtz and her putative right to exercise her academic freedom, with “taking offense” being the only concession to harm done to students (as opposed to, say the law school or the university).
But what if it were the case that one or more students had been harmed materially–maybe even had their lives destroyed–by a professor’s ignorant if “well-intentioned” act of discrimination? Worse, what if the professor genuinely believed that the discriminatory act was pedagogically justified? Should the professor be protected by academic freedom, in her own home, etc., etc.? What should the university have done then?
Students’ lives destroyed by a professor’s well-intentioned but inept attempt at drawing attention to racism at a party? Seriously? I can’t stand it when the right-wing calls people snowflakes, but sometimes it’s well-deserved. There are people, including people at UO, who have dealt with real hardship and tragedy, political persecution in other countries, etc., things that really can destroy lives. This ain’t it.
You’re missing my point and once again framing the situation in terms of bruised sensibilities. Discrimination is a problem not because it’s “offensive,” but because it has real and damaging consequences. Neither you nor I nor anyone else know what kind of damage has been done to UO students as a result of this incident. (The fact that none of the students present said they were going to file formal grievances is irrelevant.) And I was posing the question in general, since policy needs to be set in general.
What Shurtz did wasn’t just “stupid and offensive,” it was incompetent and irresponsible. Anyone in any other profession would face consequences for such behavior, but university faculty can avoid any consequences altogether by waving the flag of academic freedom. And courts in the U.S. will stay 100% out of it 99.99% of the time. So where is the accountability? At least in this case the university’s self-interest impelled them to make the right call.
The university wanted to give her $1M-$2M? Because that’s all but assured to be the final outcome of all of this.
I mean we are giving millions to keep the law school going anyways, maybe the lawyers have coordinated an inside job to get another couple million and all of these is just collusion?
The true thing law students should be offended at is their placement rates, not whatever happened at a halloween party.
@just different says “Anyone in any other profession would face consequences for such behavior.”
I disagree – if this happened in the private sector, or the Business School, this would just be a funny story to tell around the water cooler the next morning – nothing more.
Oryx, here is an example of a ignorant, “well-intentioned” act of discrimination:
One professor in the Oregon MBA program (I’m a JD/MBA graduate) told me to reconsider a career in business because the ability to create a direct, concise response makes other people uncomfortable. A few weeks later, one Dean explained that my intelligence wasn’t a deal breaker but it was a hinderance that I needed to learn to overcome. During my final year of the program, another Dean outright said he was uncomfortable speaking to me because while I wasn’t rude, he knew as soon as he stopped speaking I had a counter argument. The day before I graduated, I was discussing these comments with the head of my department, and not only did he defend them, but he outright said the only reason I’m rejecting this advice is because I’m too stubborn to let the MBA program teach me anything new.
The people who said these things to me were all describe themselves as well-intentioned folks trying to help the lone Black female in their program succeed. Now imagine if we’re talking about a young and impressionable 18 – 22 year old Black student and not the 30+ woman that I am. You don’t believe that there are real and damaging consequences to this type of ‘advice’?
Hahahahaha, exactly. If you put up with crap, it’s your fault for not speaking up. If you don’t put up with crap and speak up, it’s your fault for being difficult.
PBF:
Honest question: is it possible that the “advice” they were giving you was to be a better listener/communicator? I just have a hard time believing they were really telling you that creating a direct, concise response makes others feel uncomfortable, that your intelligence is a hindrance, or that talking to you makes them uncomfortable because you’ll always have a counter-argument. Maybe they were, but that would constitute an awful failure at education on their part. It just seems more likely that they were trying to address a communication issue you have and about which you’re unaware of (which seems to accord with your department head’s comment about being “stubborn”). Is that possible? Again, honest question.
Roger
This is not an issue of me simply needing to be a better listener, they really did say my intelligence was a hinderance. The first time it happened, I was told I should reconsider a career in business; that I would be happier in law because no one will hold me intelligence against me. (The profs words, not mine!) When I told a Dean about that comment, the Dean responded by saying that while being smart was an obstacle, staying in the program would help me learn how to navigate the business world. The third time it happened was after a discussion with a White, male Dean about Black hairstyles in the work place. He tried to explain how and why he would use a Black women’s hair texture to decided whether or not he would hire the woman, I explained why I felt that was an unfair criteria. So when he said, “You’re not rude, but I know that as soon as I finish speaking, you have a response,” that was because he could probably tell I was biting my tongue until he had completed his thought. His advise consisted of telling me to pause for a beat and then repeat back what the person said before I respond. As for the department head, he had already expressed that he didn’t think racism still existed so naturally he wasn’t going to see this as a racist incident.
So in a nutshell, yes, it was an awful failure at education on their fault especially when considering that this was one of many issues I encountered in the MBA program.
PBF:
OK, thanks for sharing. I agree with you that their behavior was egregious.
Thanks, PBF, for your example. Reading the first paragraph, I was unaware that you’re black and female, and my thoughts were that I’ve given similar advice to people, pointing out that blunt arguments are often not persuasive even if they are correct. Of course, the good way to give this advice is not to tell someone to “reconsider a career in business” but to suggest strategies for better communication. Similarly, I’ve had people complain that they’ve been criticized for being stubborn, and sometimes my thoughts were that yes, they’re stubborn, and sometimes my sympathies were more with their perspective.
Reading the second paragraph I then had to ask myself: should I keep quiet with the advice I consider most useful? Is it “discriminatory” if I give similar advice, for the similar reasons, to people of different races / backgrounds / genders / etc.? Should I only give people the advice they want to hear? Aren’t there real and damaging consequences to that? Who gets to decide what’s damaging, in cases like this, and what’s not? This isn’t to pick at your story, which I think is clear and which I’m glad you shared, but I think it’s not at all obvious what lesson to draw from it.
Oryx,
The takeaway from this comment is that you asked for an example of an ignorant, ‘well-intentioned’ act of discrimination and I tried to provide one. I wasn’t criticized for being too blunt and I was only called stubborn for not taking the Dean’s advice. I was told that I wasn’t rude or an interpreter, just too quick to respond. When I say these things happened, I’m repeating back what was said as close to verbatim as humanly possible. These are serious accusations that I’m tossing around, which is why I’m making a point to be as accurate as possible.
As for your second paragraph, I can’t give you a hard and fast rule. What I can say is that advice should be for the listeners benefit, not the speakers. Think about it, the one thing the advice I describe have in common is that following it would mean I didn’t toss them any hard follow ups.
Nothing in the report demonstrates any compensable or legally cognizable damages were suffered by anyone as a result of Shurtz’s Halloween costume.
The report also failed to determine whether the moon is made of cheese.
The UO policy cited in the report says that the problem with discriminatory harassment is that it (1) disrupts the work and learning environment of the campus and (2) denies its subjects equal opportunity. The first consequence was addressed in the report; the second and (in my view) much more serious consequence was not.
Whether or not there was demonstrable material harm done in this case, there certainly could have been. Therefore, there should be some sort of institutional response for discriminatory actions which have the potential for harm (other than to the university’s reputation), analogous to the way DUIIs are dealt with even if there is no harm done. I do think that DUII is the right analogy here, because Shurtz deliberately and premeditately did something which any competent adult would immediately recognize as reckless and irresponsible, while believing that she was special enough to avoid any consequences. If you take issue with this analogy, then ask yourself whether you really believe that discrimination is a serious matter that needs to be dealt with head-on.
Many people on this thread seem to basically be arguing “no harm, no foul,” but if your concern is protecting equal access for the most vulnerable groups on campus, then “no harm, no foul” is a glib and grossly inadequate response.
I don’t know what the right response is. But it seems to me that a good place to start is to figure out what the right response is in situations where material harm did result from casual discrimination, and then work backwards from there.
I also think that UO is largely at fault for this situation in the first place, since the leadership blows a lot of hot air about inclusiveness but does absolutely nothing whatsoever to stop casual discrimination before it happens. You would think that UO faculty know better than to get up in blackface for any reason, but apparently they don’t, and UO itself bears a lot of responsibility for that.
You mean, what if a student of color had been inspired to enroll in medical school? That kind of result of “putative” rights?
From what we know, which is limited that is not what happened. Some students at the party were appalled and other later upon hearing it. FTom what we know, there is no one who was so inspired.
And your fanciful conjecture requires us to imagine a racist act is plausibly able to produce such an outcome.
It also asks us to accept that such an inspiration could not have been achieved another way. For example, by talking about the problem the book documents but in another costume, or none at all.
What are the odds of a student of color enrolling into medical school because of Shurtz’s actions, given that she was speaking to a group of mostly White students in the legal profession?
I didn’t pose the question to debate whether or not this particular incident resulted in harm to students (although a case can be made that it did). The investigative report makes the case that Shurtz did harm to the university, but no mention is made of harm to students.
My still-unanswered question is: If it were clear that an act of discrimination did result in substantial harm to a student, and the act of discrimination was part of a professor’s incompetent attempt at pedagogy, what then? Is the professor guilty of educational malpractice or protected by academic freedom? What should the consequences be?
@just different: I think I better understand your question now; thanks for clarifying that this is a hypothetical about some possible incident that actually _did_ result in harm to students. I find it hard to answer, though, without a clearer statement of what it would mean for an act of discrimination to result in substantial harm to a student. Some examples I can think of:
(a) Professor X automatically gives all Asian students ‘F’ exam grades, without even looking at the exams. This obviously harms students. It’s also outlandishly improbable.
(b) Professor Y says, I don’t think Asian-Americans should become doctors. Professor Y isn’t involved in any admissions decisions related to medical schools, or even in teaching any pre-med classes. While appalling, I don’t think this tangibly results in harm to students, and if a university values free speech, as it should, this should be protected.
Can you give examples of what you mean as “resulting in harm?”
OK, here are two examples, with the proviso that I don’t want to debate whether these examples constitute discrimination or discriminatory harassment against a protected class. I also don’t want to debate whether these scenarios actually happen, since there is plenty of evidence that they are quite common.
1. A professor who advises undergraduate math majors disproportionately steers female students to the math ed track, which leads to much lower-paying jobs and less flexibility if the student wants to later change tracks or attend grad school. He believes that women make great teachers because they are warm and nurturing, and the world needs good math teachers. Few women seem to him like “the type” to become professional mathematicians, something he rarely assumes about men.
2. A professor is visibly contemptuous when a student with a learning disability presents an accommodation letter. Although the professor complies with the accommodations, he remarks that the student won’t get accommodations in the “real world.” Throughout the course, he treats the student with impatience and subtly but unmistakably communicates that he believes LD students are slow and lazy. The next term the student does not identify to his professors that he has approved accommodations and as a result fails courses.
In both these cases the professor (ignorantly and erroneously) believes that he is making an appropriate pedagogical decision and had no specific intent to discriminate. But the effect on the students is enormous.
I know this reply is late. Your examples are good ones, and are realistic. I would agree that these cause harm, and also that it’s debatable whether they constitute discrimination. The second one is especially interesting. The hypothetical professor’s behavior is certainly bad, but invoking some high-level condemnation of it risks punishing people for their demeanor rather than their concrete actions, and punishing people for possible far-off consequences of their actions, both of which are horrible things to do.
Here we go with some unsupported speculation. (It’s something you can do when you’re retired.)
Mike got the message from on high that recruitment to the football team went downhill after the basketball players were dismissed from campus. If Prof. Shurtz were not punished, the UO might appear guilty of adding insult to injury, and a good defense might become impossible to find.
Did recruiting go south on the supply or demand side? Did athletes not want to come here, or did we start screening people on prior criminality?
Let the record show that on the eve of the take over of the most powerful office in the world by white supremacists the UO was obsessed with the unintentional racial insensitivity of an absent minded professor’s Halloween costume.
[I drafted this in response to the RG story, before I saw Shurtz’ statement.]
Shurtz is the injured party here. The abuse of process was evident from the immediate reaction to this incident, and the report by Barran Liebman LLP contains multiple pieces of evidence which refute the report’s own findings. Foremost, Edwin A. Harnden and Shayda Z. Le told Shurtz “that investigators have not been charged with reaching a conclusion about her employment or any potential discipline….”
That was deceptive on its face and Shurtz would have been justified in refusing to be interviewed for what was obviously a hatchet job on her professional and personal reputation. “We further find that [her] actions constitute discriminatory harassment.”
None of the students indicated that they wanted to file a formal grievance against Shurtz. Multiple students and faculty stated to the dubious investigators impressions about impressions other people had. Direct injury or interference in educational access is nowhere in evidence. Since when is indulging baseless fears an obligation of a university?
With respect to Shurtz’ First Amendment rights to free speech and expression, the investigators wrote, “However[,] the costume without any speech at all would likely be sufficient to constitute protected expression.”
The speech they are referring to was Shurtz’ explanation that she was depicting an author she admires for a work (a book) that addresses the problem of racism in medical education. Therefore, this very report makes clear that there was no possibility that an outcome other than a violation of discrimination policy could result. In other words, Shurtz has no free speech or expression rights.
The report impugns its own conclusions, and that result is consistent with the bad faith by the dubious investigators who misinformed Shurtz about the process and their authority in it.
Shurtz is not the only injured party. The academic environment is greatly diminished because, as any reasonable person (including prospective students) can observe, free speech at the University of Oregon is conditioned upon approval by the ‘social justice’ mob. The UO administration hires professional hatch men and women to defame students and professors who have violated no policies.
Typo: hatchet men and women
“Foremost, Edwin A. Harnden and Shayda Z. Le told Shurtz “that investigators have not been charged with reaching a conclusion about her employment or any potential discipline….””
How was that deceptive? They didn’t reach a conclusion about “her employment” (admittedly, that’s ambiguous) or any potential discipline (clearly not the case). They were there to determine whether she violated the UO’s policies, which Schurtz obviously had to understand, but they never suggested any course of action on discipline.
So do you think that they told her, ‘If we find facts and offer interpretations of the law and history, and don’t give you a chance to challenge the facts, our report could be used by the administration to find cause for discipline’?
There is a leadership problem at the law school. Not just a lack of leadership, but an inability to get behind a leader, on the part of faculty. I have seen it more than once. This situation would never have seen the light of day if Jane Gordon still worked at the law school. She would have quickly addressed the situation head-on with calm and fairness, and she would have worked tirelessly until all concerned (faculty, students, professor Shurtz) felt whole and heard. It wouldn’t have been easy but that wouldn’t be a reason to not address it. It would have been used as a learning opportunity. We get up every day and go to work at a university because of students. We often learn as much from them as they do from us, but there are times when as a faculty, or an administrator, you demonstrate to the students that although you hear them, and although they feel something quite passionately, and although their point of view is valid, they actually can be wrong when they desire revenge like they did in this situation. They will be exposed to various points of view in their lives, some of them offensive, and there are ways to hear and understand those ideas without condoning them. . It isn’t wrong to hate other peoples ideas and actions but it is wrong to not listen and hear the nuances. This can be learned.
“former employee,” I really appreciate your perspective and wish said Jane Gordon had been here to render this incident a teaching moment in our educational institution rather than a risk management situation for bureaucrats and lawyers to “handle.” Your description of what Gordon would have done is exactly what should have been done to honor our educational mission, to preserve our integrity as a university, and to respect the concerns of all involved.
Jane Gordon was the law school’s Michael Clayton, no doubt. That said, over the years she was directly involved, though behind the scenes, in some key moments that led to the ongoing leadership crisis through installation of the current dean (and has been rewarded time and again for playing that role). No, the law school leadership structure needs, and has for a long time needed, a thorough flushing out toward a changed institutional culture, not the kind of nonsense that is happening here and now.
Michael Clayton? I don’t know. I passed on book/movie.
I guess what I meant was that the law school is full of people with dispute resolution skills, and one wonders why those skills weren’t utilized. Now this is a big destructive mess. It saddens me. I personally found Professor Shurtz to be very decent, on a day-to-day basis.
Thank you UOMATTERS for a fascinating blog site. I’ve been reading a couple of years but is time for this reader to move on. My country has elected a nincompoop and I need to actively resist.
Michael Clayton: a lawyer whose job within his organization was to clean up the organization’s own messes and dirty-hands conflicts and make them go away, and was paid handsomely for that service.
Interesting about the law school being filled with people with dispute resolution skills. By “interesting” I mean that the dean displayed “ready-fire-aim” rather than leadership tendencies. So too did the first two signers on the “dear colleague, you should resign and the 1st A doesn’t matter” letter, who are ADR experts closely allied with the ADR-expert dean.
It’s not just that none of them utilized their ADR skills here. It’s that they actively chose not to do so and moreover chose to escalate this into a very destructive, very public, very costly conflict for the whole law school and wider university community.
What’s the apt metaphor here? An own-goal? A self-inflicted wound? Shurtz’s actions and their immediate repercussions could have been deescalated by skilled, committed individuals with some greater humility and historical awareness. I completely agree with you about that. Sadly, even worse than the initial offense has been the institutional response. But maybe this too is a learning moment, if not for the law school and wider university then for others elsewhere who have watched this disastrous case study unfold.
From the standard text on conflict resolution–“Finding a Resolution to Conflict”:
“Step One: Identify the problem: This is the first step to resolving a conflict effectively. You’re not likely to solve a problem if you have no idea what it is. To determine what the problem is, talk calmly and listen to each other without judgment.”
Yes, a more skilled person in ADR like Jane Gordon (driven out of the law school by the dean) would have handled this totally differently.