Over the past couple of months, the University of Oregon’s handling of events associated with Professor Nancy Shurtz’s decision to wear a controversial Halloween costume has garnered significant media attention, both locally and nationally. A number of editorials, letters to the editor, and blog posts have engaged in discussions on the topic. Some of the coverage has been, in my opinion, thoughtful but some has, perhaps not surprisingly, sensationalized and caricatured what is a very serious incident that deeply affected our students and, by extension, our entire university community. A number of colleagues have asked me for my own views on the matter. I hesitate to burden you with this personal reflection, but because this incident has polarized our community I have decided that it would be useful for me to share some of my own thoughts about the matter.
At the outset, I should state that, under university policies, the provost, not the president, is the figure whose job it is to respond to complaints against faculty members. Therefore, I have not played a formal role in responding to the incident. I write this to clarify my institutional role and not to decline responsibility. To the contrary, as president, I am ultimately responsible for everything on our campus.
When Professor Shurtz invited her two classes to her home for a Halloween party on October 31 and dressed up wearing blackface, she created a conundrum that is the stuff of a very difficult law school examination question. Two very important principles were potentially in conflict—the right of students to be free from racial harassment and the right of faculty members to exercise free speech. A law firm that the university hired to do an impartial investigation of the matter interviewed students and faculty members who were at the party and made a factual finding that at least some of the students felt compelled to attend their professor’s party and that they would potentially suffer negative consequences if they left early, despite being deeply offended and affronted by Professor Shurtz’s costume and its strong connotations of racism. The investigators made a factual finding that the behavior by Professor Shurtz constituted racial harassment under university policy V.11.02.
Of course, this is only part of the story. Professor Shurtz told the investigators that she didn’t intend to act in a racist manner. Instead, she said she was dressed “as a book” she had recently read that highlighted the shortage of black doctors in the medical profession. She also told the investigators that she was making a statement about the paucity of African American doctors. The law firm weighed the harms from the harassment against the value of her conduct and determined that, according to the balancing test prescribed by Pickering v. Board of Education, the former outweighed the latter, rendering her conduct unprotected. The provost accepted the findings of the investigation and, pursuant to university policy, took appropriate actions to make sure that Professor Shurtz understood the gravity of the incident and would not behave in a similar fashion in the future. I am not able to divulge the nature of these actions because university policy mandates confidentiality.
As I consider the case of Professor Shurtz, I have to admit I am torn. I believe that freedom of speech is the core value of any university. When faculty members pursue their avocation—teaching students and conducting research—they must be able to say or write what they think without fear of retribution, even if their views are controversial, and even if their research and their views risk causing offense to others. Otherwise, advances in learning will be stunted. This freedom of speech includes the freedom to share political views, academic theories, good ideas, and even bad ones, too. It includes speech that offends others. Without academic freedom we could scarcely call the UO a university.
For me, stating that principle in the abstract is easy and uncomplicated. But here is the problem—figuring out when and whether there are legitimate limits on freedom of expression actually is complicated. In general, it is not acceptable for someone to use her rights to deprive another of her rights. I should not be able to use my speech to deny others of their right to be free from racial or sexual harassment. I can hold—and share—controversial views. But that does not give me the right to harass specific individuals or to speak in any way I wish to, in any place, or any point in time.
But, when exactly does offending someone turn into proscribed harassment? Only a small number of legal commentators would say that faculty members should be immune from all harassment charges on academic freedom grounds. Instead, most of us recognize that speech rights are extremely important, but they also fall on a continuum. For whatever it is worth, I personally am fairly close to the end of the spectrum that believes speech should be maximally protected. But even I believe that there are cases when speech or conduct is of relatively minimal value compared to the great harm that it may do to our students—particularly to students who already struggle with isolation and lack of representation. For example, imagine a required class in which a professor repeatedly uses the “N” word for no apparent reason except to elicit a reaction. Could African American students forced to sit through this class have a claim of harassment? I think so. Similarly, imagine a class in which a professor makes repeated, sexually explicit remarks to a student or students for no educational purpose. Free speech principles should not, in my view, prevent the university from taking appropriate actions to make sure these actions stop and do not recur in the future.
To be sure, the case of Professor Shurtz is not quite as clear-cut. The events took place in her home, not in the classroom. Her stated intention ex post was not to offend, but to draw attention to systemic racism. Still, some of her students felt that they were in a similar situation to students in a classroom being subjected to harassing speech, as they felt pressure to attend and to remain at the event. They felt that they could not leave without jeopardizing their standing in the class, and they also felt that the offensive nature of the blackface was the equivalent of hearing the “N” word. In these circumstances, should the university have ignored the event or should it have taken action proportionate to the offense? What lesson would we be teaching our students if we let the incident end without even an official letter of reprimand? These were the very difficult questions that Provost Coltrane had to grapple with, and I am supportive of the process he used and the fairness he displayed in making his decision.
Some commentators have taken to the barricades, and suggested that any finding or action taken with respect to Professor Shurtz will ultimately open the door to firing professors for expressing their political views. Really? In law, we call this the “slippery slope” argument or “the parade of horribles.” While I have tossed and turned for nights over the fact that the university found that a professor’s expressive conduct constituted harassment, I think the reaction of those commentators is overly dramatic and not supported by anything that took place in this case. Go online and you will find that Professor Shurtz remains a member of the law school faculty. Name a single faculty member who has been punished by the provost for his or her political views. This has not happened and you have my vow it won’t happen as long as I occupy my office in Johnson Hall.
The blackface incident has been a painful one for everyone in our UO community. It came at a time of heightened emotions with respect to the treatment of African Americans on our campus and on campuses throughout the nation. It also came at a time of turmoil and recrimination in our national politics. In my opinion, each of us should be uncomfortable with the harassment that our students experienced at the home of a senior faculty member. Each of us should also be uncomfortable with the fact that the provost felt it necessary to take remedial actions with respect to a faculty member in connection with her expressive conduct. Maybe I am just being a Pollyanna, but ultimately I hope that this discomfort will serve a good purpose. I hope that we come out of this experience with a greater understanding both of the value of free speech and the ways in which our speech can harm each other.
Sincerely,
Michael H. Schill
President and Professor of Law
A sensible letter (and it also sounds like a sensible “reprimand” was handed down to Shurtz). Despite all the drama, it seems like Schill handled this issue well.
President Schill’s letter emphasizes that Professor Shurtz remains, at least at present, a member of the law faculty. Yet being a faculty member does not necessarily mean “currently teaching courses” or “scheduled to teach courses.”
Do any of the UO Matters readers happen to know whether Professor Shurtz is, or is not, teaching in the law school this semester?
President Schill: In your letter you make several references to the requirement for confidentiality regarding personnel issues…specifically, any possible punitive actions taken against Professor Shrutz. As a former teacher and School Board member I understand the issues of confidentiality and executive session exemptions from Open Meeting Laws.
However, it seems your Administration released for public consumption the “center piece” of the process of considering such possible action; namely, the “investigation” you instigated and paid for. Any possible punishment for Professor Shurtz would, one assumes, be based on the “findings” of that investigation. As such, I would assume it would be, as I suggested, the central piece of the case presented in Executive Session and, thereby, exempt from Public Disclosure…in fact, protected from Public Disclosure without Professor Shurtz’s written permission and approval. Yet, it WAS released and clearly constitutes a “public shaming” of Ms. Shurtz. It goes far beyond being a “finding of fact.” It draws conclusions and condemns her actions.
Two questions: 1) Did Professor Shurtz approve your release of the document?
and 2) If not, could you please explain how the report was not part of the Confidential Personnel process and, thereby, it’s release being a violation of the Confidential protections provided to University employees? Thank you for your answers. Gary Crum
The professor’s career has been ruined for no acceptable reason. Academic freedom at UO has been severely damaged. As has the reputation of UO, which was none too sturdy to begin with. No, it does not matter that no faculty have been punished, say, for supporting Trump.
The UO senate and the trustees should draw the proper lessons.
If they don’t, the national and local media will continue to.
Do you think that faculty SHOULD be punished for supporting Trump? What exactly is your view here?
Wait — I used this a bit tongue in cheek — as something that I’m sure few faculty supported privately, and which almost nobody would be caught dead supporting publicly, but which should hardly occasion note (yet which has caused uproar on a few campuses).
Actually, I can think of a number of politically tinged propositions that nobody in their right mind would now express at UO, for fear of crossing the fuzzy line set by Coltrane’s manifesto.
Just read Volokh’s piece for some examples.
But come to think of it — I can imagine even the Trump thing getting someone in terrible trouble at UO. Wear a Trump mask to your Halloween party. With a MAGA button. Offend particular categories of people who happen to be there. Especially your faculty “colleagues.” You can fill in the details. Yeah, you might wake into a nightmare at UO.
Just thinking about this gives me the creeps.
Thanks for helping me to see this.
The personal life is dead at UO, Doctor Bernie. History has killed it: https://youtu.be/ozpct8zUA_U
To the extent that it can be said that her career was “ruined,” it wasn’t ruined by Schill, it was ruined by posturing from CAS and a faction within the Law School who made a public display of outrage at someone else’s expense as a cheap way to boost their own diversity cred.
Schill and Coltrane made the right analysis and did the right thing. Now I just hope that they recognize that an ounce of prevention is worth about fifty tons of cure.
“… a faction within the Law School who made a public display of outrage at someone else’s expense as a cheap way to boost their own diversity cred.”
You’re basing this argument on what? Do you know those professors? Have you spoken to them personally or at least can you point to something they have done to explain the foundation for this belief?
I have not spoken to them personally, but 100% of the anti-Shurtz public communications from the Law School lead me to believe that their primary concern was Shurtz making the Law School look bad. When a single individual gets royally hung out to dry for a systemic problem, it’s a pretty good bet that it’s scapegoating.
Oh, okay. So as someone who actually has spoken and taken classes with many of the professors on that list, I can honestly say that I have seen nothing from them that would indicate that their goal in signing that letter was a ‘cheap way to boost their own diversity cred’ especially given how some of the list are 1) minorities themselves and 2) have a reputation for being very pro-students.
I wish people would understand that for some folks, blackface really is a shitty thing to do that could end a personal and professional relationship.
Agreed, HUB. Too little, too late. The time for a sensible intervention from Schill was Nov. 1, not Jan. 9.
And the events of the two months in between, including the commissioning and endorsement of the hired lawyers “investigation”, make me disinclined to trust Schill’s promises. That warm, sincere tone is belied by the hairsplitting lawyerese.
Schill belittles those “on the barricades” but even without being one of them, I am offended (and what does it mean now for me to use that word, I wonder?) at his failure to acknowledge the deep damage that has been done to trust and morale on campus–not by Shurtz, or Shurtz alone, but by his and Coltrane’s handling of the situation.
I am depressed–as usual, but differently after Halloween–and embarrassed now too to work as faculty under this administration.
Yes, but…the harmful situation was magnified when Schill and others sent a letter to campus informing us all about the incident while implying that Shurtz’ costume was worn “in jest.” That implication surely created a fundamentally toxic impression of the incident and this campus. Of course intentions do not excuse all behavior, but our understanding of intentions are very much relevant to a perception of a toxic environment. A behavior may cause harm without bad intention; it is likely to cause much more harm if one understands the intention was to harm.
I didn’t see Schill taking any responsibility for that crucial misrepresentation nor the impact his error had on the campus. That is what a really good leader would have done — been accountable for his own behavior, apologized for his own harmful “speech”.
(Also, really, lets be real here: what was the point of the whole thing of saying it was the Provost’s responsibility? Come on.)
President Schill gives us a very, very thoughtful letter for almost 8 full paragraphs, but then, in the last sentence of the 8th paragraph, he contradicts everything that came before: “I am supportive of the process he [Provost Coltrane] used and the fairness he displayed in making his decision.”
I do not approve of the conduct of Prof. Shurtz. I find it barely comprehensible. On any reading, however, her conduct seems markedly distant from the harassing actions to which it is compared in the President’s letter. I myself am less concerned with the particular case and more concerned with the precedent, a concern the President dismisses as falling for a slippery slope argument. But I have read the report, and I fail to see how it gives any weight to academic freedom or freedom of expression at all, except for saying that, whatever weight they have, it does not allow Prof. Shurtz to defend herself against a charge of discriminatory harassment. I can only suppose that this can be said to the rest of us, too.
I am deeply sympathetic with the President’s difficult situation, and I am moved by the thoughtfulness of his considerations in the first part of the letter. I am also deeply discouraged by his reasoning and by his conclusion, which seems not to follow at all from his careful considerations.
” . . . the ways in which our speech can harm each other.”
What is this “harm” to which Schill refers? Schurtz’s costume harmed no one. She did not target anyone with harassing speech or discriminatory behavior. No one alleges their grade suffered from Schurtz’s speech; that she harmed their academic standing, or wrote a damaging job recommendation. No one claims that she used her official position to deny a student or faculty member access to educational opportunity or professional advancement. In particular, no one asserts that she did so because of the victims’ (and who are these victims?) race.
This “harm” Schill alleges amounts to nothing more than hurt feelings, at most. Hurt feelings that appear, by the evidence, to be expressed post hoc.
I can’t say I disagree, Andy, but neither of us is a person of color. The harm is feeling alienated and marginalized, and that’s hard to relate to when we’re not used to feeling that way.
Yes, this is one of the more difficult underlying issues. Lots of folks feel alienated and marginalized and hurt and diminished, at different times and in different situations, in response to things that are said and done. Some older people in my department–older than I–certainly feel this way. They have told me. So have some students who felt that their religions were demeaned in classes they took. We can all think of further examples.
But race seems, feels, different. If feeling hurt and alienated and diminished occurs against, say, a background history of slavery, jim crow, and systematic and persistent discrimination over generations, then the hurt loads hugely from that context. Even if I can, as a white man, with great effort, acquire the knowledge and emotional ability to begin to imagine this kind of hurt and alienation, I do not live with it. This context does not load automatically when I feel or suspect that I’m being treated unfairly or being diminished in some way. Other contexts do, but not this one.
And I really don’t know where that leaves me when I have to make judgments about these issues. Like Roger, I can’t disagree with Andy. I can check my reactions, sort through my ignorance, listen as carefully I can, know that the way I would feel is not a measure of how others should feel, know that different contexts are coming into contact–but after all that, sorting through it as best I can, I still believe that, in the long run, and especially when it is most important to speak freely in ways that will necessarily upset some other people, a very strong preference for freedom of speech and expression, and for academic freedom, will protect everyone, will ensure equality of access. And this strong preference for freedom will also sustain the kind of work that will, in the long run and overall, produce the most inclusive university possible, as well as the one most likely to overcome ignorance and discrimination.
I know that I have the privilege of not having to suffer through some of the inevitable harmful effects of this freedom that really do impact others strongly, and I have to think about that. But I still believe that the President and the Provost have judged wrongly on this. They have weakened the freedoms that protect us all. And though their failure is understandable, and arises from good sentiments, it is still a failure.
I hope that everyone who agrees with me will find a way to support the efforts for diversity, equity, and inclusion that are taking place on campus and will also support in the Senate’s efforts to clarify and strengthen our freedoms of speech and expression and our academic freedom.
Yes, President Schill’s “harm” is a “feeling” — a feeling of, as you say, alienation and marginalization. The question Schill’s actions (e.g., commissioning and publishing the outside legal review) have raised is “Should government use its power to punish speech to protect some people’s feelings?” His answer appears to be “Yes.” That’s a slippery slope that concerns me more than some hurt feelings.
Andy Stahl, I have been biting my tongue (or fingers?) since I saw your very unkind comment. Unless you have actually been in the position of being aware all the time that you are not entirely welcome, not entirely normative, that there is always some doubt surrounding anything that you do or say, you cannot possibly have any idea what it is like to be hit in the face with a flagrant expression that you’re really not an equal member of a community after all. Then you’re told that many people think you should just shut up and deal, because the right of this person to “freedom” outweighs your right to the basic respect and equality that the dominant group gets to take entirely for granted.
Also, alleging that this is just “post hoc” “hurt feelings” is a lot like saying that sexual assault is “regret sex.” I’m hoping you didn’t really mean that.
Agreed, just different. I probably held back too much in my response. I hope this is an occasion for Andy (and others) to think more thoroughly about these issues and communicate with those with different life experiences.
Sexual assault is a crime. It is a physical act of violence inflicted upon a person’s body.
Hurting someone’s feelings is not a crime.
I know the difference. Do you?
No one is suggesting that hate speech is a crime or should be prosecuted. Make your arguments in good faith.
Couple of suggestions.
One, please stop with the condescending “hurt feelings” minimization unless you are willing to listen to others describe their reactions. In this thread you’ve shown no such willingness.
Two, your knowledge of harassment law seems confused. Harassment does not require physical violence. That is clear in the law, case law, and in the statements of some affected, some of whom talk about the larger harms of “mere” words and symbols. Again, listen and maybe you will hear.
Someone calling you a cracker may or may not constitute harassment but it is unlikely to cause you to feel alienated from the community or unwelcome. Some enjoy the privilege to be able to just ignore “mere” speech.
“Regret sex” is the analogous non-crime. Discrimination is in fact illegal.
That is perhaps the most male-centric definition of sexual assault ever written.
Here’s how the U.S. Department of Justice defines “sexual assault”:
Sexual assault is any type of sexual contact or behavior that occurs without the explicit consent of the recipient. Falling under the definition of sexual assault are sexual activities as forced sexual intercourse, forcible sodomy, child molestation, incest, fondling, and attempted rape.
The examples are all “physical acts of violence inflicted upon a person’s body.”
If “Just Words” has a different, e.g., not “male-centric,” definition of sexual assault, please share it.
No one is claiming an assault of any kind occurred at Prof. Shurtz’ house, not sexual, nor racist. No one is claiming sexual assault or sexual harassment occurred.
The law suggests that potentially actionable racial harassment occurred.
In other words, your diatribe about sexual assault could not – *literally could not* as a technical matter of information theory – be less relevant.
Pay attention, please. This is not a Cato Institute conference on the dangers of those man-hating feminists. Please at least pretend to keep up.
“Focused anger cuts” is correct — the UO admits it broke the law. It admits, too, that the First Amendment’s limitation on its ability to regulate its own employee’s speech does not defend the racial harassment the UO’s agent has inflicted upon prospective plaintiffs. I have disputed none of this in my prior comments; it’s obvious from the UO’s own legal analysis.
This is precisely why my first comment in this string focused on the nature of the “harm” suffered by the victims. From its own attorneys’ pen, the UO has admitted its legal liability. The only remaining question to be determined in the up-coming civil rights lawsuit is the remedy, which depends upon the harm plaintiffs can prove. I suggest that the harm is nominal, even non-existent, in a legally cognizable and compensable sense.
Who will be those plaintiffs? For what it’s worth, I suggest the victim cohort be diverse. It should include individuals of all races, both those who were at the Halloween party and those who heard of the costume thereafter through social media or Law School hallway gossip. The broader the victim pool, the more theories of harm and causality can be tested in this seminal civil rights case. And the more likely that at least one plaintiff will be able to establish standing, a key ingredient of which is harm.
Although most of the public discussion’s focus has been on the lawsuit Shurtz will file against the UO, that case has always seemed unlikely to me. The UO was never going to fire her or dock her pay. Yes, her employer publicly scolded her; i.e., met her objectionable speech with speech of its own. The collateral damage to the institution from all this shouting has been substantial. But damage to the institution is not damage to Shurtz.
The real courtroom action will be brought by victims against the UO. That deal was sealed the moment the UO released its mea culpa admitting to having broken the law. Some litigators might have counseled against writing the opponent’s opening brief. Or suggested that this opening brief not be released publicly, but retained under seal in Shurtz’s personnel file. The UO chose to do things its own way.
A final thought. The victims should have no problem finding pro bono counsel. There’s a list of UO law professors eager to pursue justice in this matter. Among them, there’s probably someone who knows their way around a courtroom.
There is nothing wrong with taking action when there is only the potential for harm–you will notice that the University did not even suggest that any sort of redress was owed to anyone.
I posted about this here.
Right “damage to the institution is not damage to Shurtz” and Pete Rose is going to get in the baseball hall of Fame …
After the University released its investigative report, I believe Schurtz said there were some errors in the report.
Anyone know why we haven’t heard more from her on this? Is she saving it for a potential lawsuit?
“Over the past couple of months,” Schill begins, “the University of Oregon’s handling of events associated with Professor Nancy Shurtz’s decision to wear a controversial Halloween costume has garnered significant media attention.” As a result, he writes–as if observing from afar–“A number of colleagues have asked me for my own views on the matter.”
In fact, this is the third of three lengthy statements of Schill’s views. And, more important than any “media attention”, the handling of this issue has garnered substantial criticism from those who really count–the University community itself.
This criticism has focused primarily on the Administration’s overheated reaction–the immediate suspension of Schurtz, lengthy communications from Schill and others turning the Law School’s problems into existential crises for all of us, a needless “outside investigation” followed by another lengthy pronouncement from the Provost, etc.
As far as I can see, this statement by Schill entirely ignores the principal free-speech issue for the community as a whole: whether this sort of behavior has a chilling effect on expression around controversial issues. (For example, as one comment noted, how will assistant professors now feel about controversy?)
This is the issue which the “outside investigation” was instructed to ignore, which Schill now ignores, and which will continue to be ignored until the faculty address it themselves.
Summary of letter.
How to have your cake and eat it too.
Or: “But about me…”
So much for the learned academy, corporations have free speech rights too. President Schill and Provost Coltrane may speak freely for the University and have the same protections as Faculty members. If that free speech comes in the form of a confidential disciplinary action, conducted pursuant to the rights, privileges, duties, and obligations of the offices they hold, so be it.
Lawyer, please answer these questions: (1) Is a public university a corporation or is it a governmental body? (2) What does it matter that the Oregon Constitution protects freedom of speech even beyond the protections afforded under the US Constitution?
You are absolutely correct that corporations have free speech rights under the US Constitution. However, not all speakers enjoy the same speech protections or to the same extent. Commercial speech, for example, which is a form of corporate speech, is subject to higher regulation (scrutiny) and less freedom.
Some colleges and universities do have offices of corporation counsel because they are private actors, not public ones like UO is. This is an important distinction that your assertion completely ignores.
Also — and this too is important — state government (and actors on behalf of state government, like public universities) can adopt more expansive free speech protections than those afforded under the US constitution, but they cannot turn the ratchet the other way.
Certainly all colleges and universities, including public ones, have 1st amendment rights. These rights include, but are not limited to, institutional academic freedom and freedom of speech. However, public colleges and universities do not enjoy all the same 1st amendment protections as do private colleges and universities (let alone nonprofit and for-profit corporations!), nor are they subject to all the same kinds of regulation as some of these kinds of corporations. For example, public universities are not “commercial speech” or “religious speech” entities.
This status as a public university places upon UO, and its employees as public employees, certain benefits and burdens of speech protection and speech facilitation alike, including responsibilities to refrain from certain speech and speech-suppression activities.
What this means: Shurtz, alas, was not obligated to refrain from the speech in question, and UO and fellow employees are not free to dole out punishment-as-speech as counterspeech against her protected speech.
Furthermore, the assertion that the President and Provost “may speak freely for the University,” perhaps in violation of public employment law, private tort law, the Oregon Constitution, and the US Constitution, is specious. Not only because of the legal questions involved but also because the President (and, by extension, the Provost) are themselves subject to governing oversight from the Board of Trustees and because UO is a “shared governance” institution.
Several UO employees – the President, members of the President’s cabinet, and at least two Deans – spoke public denunciations of a particular employee’s conduct, and did so inaccurately prior to investigation.
I could go on to enumerate other problems with your analysis and the institution’s handling of this situation, but I’ll stop here.
Right…, the academy is surely learned. University of Oregon operates under an independent Board and has not been a state agency since 2013. University of Oregon has corporate counsel that has operated independently from the Attorney General since 2012. In this matter, the University of Oregon rightly retained external counsel who will defend the investigation and the legal opinions expressed therein. The Faculty at University of Oregon have a national reputation for justifying all matters of abuse and usurpation under the guise of shared governance. Shurtz may exercise her Constitutional right to sue because this is America. If she does, she will settle with the standard nondisclosure and no admission of liability clauses. When Shurtz signs the settlement agreement she will acknowledge that the University of Oregon did nothing wrong.
https://www.youtube.com/watch?v=ZBo6OWr3zwc
Non sequiturs abound!
ORS 352.002 defines the UO as a “Public university” Specifically, it is a university with a “governing board” which ORS 352.033 defines:
“A university with a governing board is a governmental entity performing governmental functions and exercising governmental powers. A university with a governing board is not considered a unit of local or municipal government or a state agency, board, commission or institution for purposes of state statutes or constitutional provisions.”
Not a state agency but a “a governmental entity performing governmental functions and exercising governmental powers.” Moreover, according to ORS 352.039 it “is created to carry out public missions and services in keeping with principles of public accountability and fundamental public policy” and is a “public body with statewide purposes and missions.”
The term “public body”, rather than “state agency”, is the main term of art in Oregon law for things which are subject to the rules of behaving like a government (so, for example, in the Public Records Law).
As for “abuse and usurpation” the *administration* of the University of Oregon certainly has a reputation for ignoring shared government and making terrible decisions as a consequence. Mostly that desire to usurp has come from a counsel’s offices, which despite leadership change after leadership change, is one of the worst performing and most embarrassing stains on the legal profession around, seemingly going out of its way to ensure the UO screws things up and gets sued (and loses) over and over again (despite a faculty and university senate full of some of the most capable people in the state publicly warning nearly every time). And despite what you might have heard from Generalissimo Kevin Reed and his predecessors in the office of “Wanna Be Dictators Pretending to be Lawyers” shared governance at the UO is supposed to be fundamental and inscribed in state law. The legislature has since the UOs founding delegated the “immediate government” power to *the faculty* of the UO and the other public universities (as currently inscribed in ORS 352.146 but similar language has been around since the UO’s charter) not to the General Counsel of the day of their hired flunkies.
Sorry to reply to my own reply, but can anyone answer the question as to whether the University of Oregon is indeed a “corporation”? A cursory (but only cursory) search produces no results to indicate that it is.
The University of Oregon Foundation IS a not-for-profit corporation, but the status of “The University of Oregon” is less clear. Here is what is clear:
Per ORS 352.039, the University of Oregon, with its governing board, is an “independent public body” that is “created to carry out public missions and services in keeping with principles of public accountability and fundamental public policy.” By comparison, OHSU identifies itself as a “public corporation.” The University of Oregon does not seem to do so.
Per ORS 352.033, the University of Oregon, including its governing board, “is a governmental entity performing governmental functions and exercising governmental powers.” Such “(a) university with a governing board is not considered a unit of local or municipal government or a state agency, board, commission or institution for purposes of state statutes or constitutional provisions.”
Even if it is the case that the University of Oregon is a public “corporation,” a corporation is not a corporation is not a corporation. Different kinds of corporations (public, non-profit, for-profit) have different relationships to the 1st Amendment. A public corporation is statutorily created and owned in whole or in part by government.
Thus, even as a public corporation, the University of Oregon remains subject to the state and federal constitutional parameters, as well as governance structure, as previously described. Official actions against free speech exercise face due scrutiny.
Surely, the President and Provost enjoy certain free speech protections. Just as surely, they may not “speak freely for the University” in violation of others’ rights, give members of the University community a “heckler’s veto,” or transform protected speech into “discriminatory harassment.”
University of Oregon Foundation is a nonprofit corporation; “not-for-profit” is not a legally recognized term in Oregon.
Concerned,
From the University of Oregon Foundation’s website:
“The Foundation, a not-for-profit corporation, is responsible for receiving and administering the thousands of private gifts donated annually to the University of Oregon.”
http://www.uofoundation.org/s/1540/foundation/start.aspx
Either you are incorrect or the Foundation needs to change the language that appears on its website (and the University’s legal counsel and wordsmiths are incorrect). Which do you suppose it is?
MLK–anything happening at the U of O?
In the midst of talking about how importantly the U of O takes racism, is anything planned at the U of O to mark the birthday of Martin Luther King? I have seen notices of substantial programs are Oregon State.