Law Prof Nancy Shurtz explains why she is coming back to teach

Last updated on 04/25/2018

Update: For an interesting contrast in institutional responses, see this story from tonight about how Cal State Fresno President Joseph Castro reacted to public anger about a professor who made disparaging comments about the recently deceased Barbara Bush:

Professor Jarrar’s conduct was insensitive, inappropriate and an embarrassment to the university. I know her comments have angered many in our community and impacted our students. Let me be clear, on campus and whenever we are representing the university, I expect all of us to engage in respectful dialogue.

Immediately following Professor Jarrar’s tweets last Tuesday, we carefully reviewed the facts and consulted with CSU counsel to determine whether we could take disciplinary action. After completing this process, we have concluded that Professor Jarrar did not violate any CSU or university policies and that she was acting in a private capacity and speaking about a public matter on her personal Twitter account. Her comments, although disgraceful, are protected free speech under the First Amendment of the U.S. Constitution.

UO President Schill took a less courageous approach to the Shurtz incident, dropping the problem on Interim Provost Scott Coltrane. Coltrane quickly passed to GC Kevin Reed. Reed then passed the problem, and ~$30K bucks, to an outside law firm whose weasley response is linked to below.

Here’s hoping the next time some UO professor does something ignorant and offensive our President will save us all some money, time, and embarrassment by simply copying the operative part of Pres Castro’s statement:

Professor _____’s comments/costume/billboard/fart/paper/art exhibit/concerto/regression coefficients/blog etc., although disgraceful, are protected free speech under the First Amendment of the U.S. Constitution.

Meanwhile,

Prof Shurtz in the RG here:

Once again The Register-Guard has chosen sensationalism over accuracy, this time in its April 13 story on my private Halloween party of 2016 and my planned return to the classroom.

The story, largely based on the University of Oregon’s flawed report, is replete with errors. I did not “wear blackface.” That term is reserved for derogatory, mocking, demeaning depictions of African-­Americans. At my private, off-campus Halloween party in 2016, I sought to challenge racism and provoke thought by depicting through my costume a book — Dr. Damon Tweedy’s “A Doctor’s Reflections on Race and Medicine.”

I sought to raise awareness of racism in higher education and the lack of diversity in the medical profession. Some who were not at the party but heard about it have expressed harm.

Although I intended no harm, I have offered (and again offer) my profound and sincere apology. I have learned much in this process.

However, the stories continue to misrepresent both the facts and the law — as has the university itself.

The so-called “investigative report,” prepared by a law firm commissioned by the UO obviously to reach a predetermined conclusion, was wrong on both facts and law — a matter of some concern in a university with a prominent law school.

Normally, faculty discipline would not be public information, but since the UO chose to violate that rule and publicize this, I now feel compelled to end my silence and justified in doing so.

I did not require students to attend my Halloween party, most students did not attend, and under the law school’s blind grading system I would be unable to reward or penalize students for attending. The report ignores the role of the university and law school administration in misrepresenting the event and stirring the pot, apparently for personal benefit of those doing the misrepresenting. Even the report admitted that I had no ill intent to harm or harass, yet it took the position that punishment can be meted out regardless.

The report ignored my long career at the law school as a champion of diversity, perhaps because I have been among the most critical voices of the law school and university administrations on that front over time. The report said nothing about the honor for which I am most proud: my nomination for the university-wide MLK Award in 2012 for contributions, beyond typical job expectations, that uphold and exemplify the ideals supported by Martin Luther King Jr.

The report also is wrong on the law: Under the university’s discrimination and harassment policies and under the law, only intentional discrimination and harassment can result in punishment, yet even the report acknowledges I had no such discriminatory intent.

Under university policy and federal law, punishable harassment occurs only if a person intentionally targets a specific individual (a student, faculty or staff member, etc.). As the report concedes, my expressions against racism did no such thing.

Furthermore, the report completely ignores the Oregon Constitution’s free-speech guarantee, which is more expansive than the U.S. Constitution’s. On the federal free-speech guarantee, the report ignores controlling 9th Circuit Court of Appeals precedents and relies instead on older, questionable precedents from the 6th Circuit (covering Kentucky, Michigan, Ohio and Tennessee) and other inapplicable law.

Lastly, the report misinterprets the university’s freedom of speech policy and altogether omits analysis of the university’s academic freedom policy.

In short, the report is wrong on the facts and wrong on the law, basically an exercise to justify the previous law school administration’s and university’s rush to judge and punish me.

Scapegoating me for the institution’s long history of racial tension and institutional failure is no way to solve the real problems that exist at the university. I will return to campus to live and teach the principles I believe are important in law and education: diversity and inclusion, accompanied by freedom of expression, due process, equal protection, impartial application of the law, and the use of the law to reveal the truth and dispense its direct byproduct — justice.

Nancy Shurtz holds the Bernard Kliks Chair at the University of Oregon School of Law.