Lawyers Guns and Money takes on Volokh for his WaPo opinion

A while back I asked commenters for links to legal analyses defending the administration’s decision to discipline Prof. Shurtz. The popular Lawyers, Guns and Money blog has one of sorts, with many comments: http://www.lawyersgunsmoneyblog.com/2016/12/bad-applications-of-anti-harassment-law-should-not-be-used-to-justify-mostly-eliminating-anti-harassment-laws. The beginning:

I agree with the bottom line of Eugene Volokh’s analysis here: Shurtz’s foolish decision to wear blackface at a party to which her students were invited is not legal harassment and, as an isolated incident, should not be a firable offense. (Although I remain unclear what exactly the sanction is: is it just a temporary suspension with pay? Is the university moving to fire her?) But there are a couple of problems with Volokh’s analysis:

Shurtz had told the students that she would be “going as a popular book title”; she didn’t tell the students up front what it was, but the book was the recent (and acclaimed) “Black Man in a White Coat,” a black doctor’s “reflections on race and medicine” (according to the subtitle). Shurtz’s “costume incorporated a white doctor’s lab coat, a stethoscope, black makeup on her face and hands, and a black curly wig resembling an afro.” The university report states that Shurtz “was inspired by this book and by the author, that she greatly admires [the author] and wanted to honor him, and that she dressed as the book because she finds it reprehensible that there is a shortage of racial diversity, and particularly of black men, in higher education.”

But many people find whites putting on makeup to look black to be offensive. I’m skeptical about the soundness of this view: The university report justifies the view by saying that “Blackface minstrelsy first became nationally popular in the late 1820s when white male performers portrayed African-American characters using burnt cork to blacken their skin” and that “wearing tattered clothes, the performances mocked black behavior, playing racial stereotypes for laughs” — but it doesn’t follow to me that wearing black makeup without mocking black behavior or playing racial stereotypes for laughs should be perceived as offensive. Nonetheless, it is a fact (though one that Shurtz apparently didn’t know) that many people do, rightly or wrongly, view this as offensive.

Oh come on. I’m sure that Shurtz had an elaborate rationalization for why her use of blackface was a subtle attack on racism, but 1)the reaction to her use of blackface was entirely predictable and not in the least irrational and 2)it is beyond belief that Shurtz was unaware of the likely reaction. To state the obvious, the students seeing Shurtz in blackface were highly unlikely to be aware of the context of a fairly obscure year-old book and to immediately make the association. They were much more likely to see an affluent white woman wearing blackface, and to be perfectly reasonably offended by this. In an academic setting — and while it was a party at her house, if you’re inviting students from an ongoing class you should be acting as if it’s a classroom — you have to consider your audience and the context from which they’re viewing your actions. Here’s a handy rule: if you’re a white person and wondering whether you should wear blackface, the answer is “you shouldn’t.” And if you’re not wondering you probably should be.